Gerald C. Mann


   Hon. Bert Ford              Opinion NO. o-ho63
   Administrator,
   Texas Liquor, Control       Re:    Under the facts ,submitted can a
   Board                        complaint legally   be filed and tried
   Wstin, ~Texas                in thee dry area where the offense
                               takes place within’ another county which
                               “is a wet area but ,wlthin 400 yards of
                               the dry area county line?     And a re-
   Dear Sir:                    lated ,question.
             Your letter of March 11, 1943, supplementing your let-
   ter of February 23, 1943, regarding the above mentioned ques-
   tions reads in part as follows:
               II. . . .

               “The facts   are as follows,    to-wit:
              “Defendant was arrested in Howard County, a
        wet area, but within four hundred yards of the
        Mitchell County Line, Mitchell County being a dry
        area.    An inspector  of the Texas Liquor Control
        Board filed   a complaint in Mitchell County ,against
        the, defendant ‘charging him with the transportation
        of liquor in a wet area without the proper permit.
               Wection 4(a), Article      1, Texas Liquor Con-
        trol   ilct reads as follows:
                “IIt shall be unlawful for any person to manu-
        facture,     distill.,    brew, s,ell, possess for the pur-
        pose of sale, import into this State, export from
        the State, transport;           distribute,  warehouse, store,
        solicit,     or take orders for, ‘or for the purpose of
        sale to bottle,        rectigy,     blend, treat, fortify,  mix,
        or process any liquor in any wet area without first
        having procured a permit. t
             “Qrticle  190 of the Court of Criminal          Proced-
        ure reads asfollows:
             ‘Ilg, offense committed on the boundary of any
        two counties,   or within four hundred yards thereof,
        may be prosecuted and punished in either county.’
              “Your valued opinion      is requested     on the fol-
        lowing matters:
                                               -    I




Hon. Bert Ford,    page 2   (oA063)


           "1.  Can the above mentioned complaint which
     was filed  in Mitchell County, a dry area, be le-
     gally tried in the said county, charging that the
     offense took place in the adjoining  County of Howard
     a wet area, but within four hundred yards of Mitcheli
     County line.
          “I refer you to the case of Talley versus State,
     147 S.W. 255, which would indicate that the law must
     have the same application in both counties and under
     the above stated facts and law quoted it is doubtful
     that the law does apply the same in a wet area as in
     a dry area.
            “2.    If the above mentioned complaint cannot be
     legally    tried in Mitchell County, then could a com-
     plaint be legally     filed and tried in Mitchell County
     County under the same fact situation      as outlined
     above, but, instead of charging defendant with trans-
     porting liquor without a permit, but charging him
     with violating     Section 27(a) of Article I, Texas
     Liquor Control Act which reads as follows:
            “‘It shall be unlawful for any person to trans-
     ;;,rzepto   this State or upon any public highway,
               or alley in this State any liquor unless the
     person’accompanying     or in charge of such shipment
     shall have present and available      for exhibition   and
     inspection,    a written statement furnished and signed
     by the shipper. showing the name and address of the
     consignor and the consignee,     the origin and destina-
     tion of such shipment, and such other information        as
     may be required by rule and regulation       of the Board.
     It shall be the duty of the person in charge of such
     shipment, while the same is being transported,        to
     exhibit   such written statement to the Board or any of
     its authorized representatives      or to any peace offi-
     cer making demand therefor,     and it shall be unlawful
     for any person to fail or refuse to exhibit the same
     upon demand. Such written statement shall be ac-
     cepted by such representative     or officer   as prima
     facie evidence of the lawful right to transport such
     liquor. I
           “In the above fact situation we might further
     add that the defendant possessed neither a permit or
     written statements as contemplated by the Texas Li-
     quor Control Act. ”
                  .    -




Hon. Bert Ford,       page 3       (0-4063)


          Paragraph          (b)   of &rticie   666-4,   Vernon’s   Annotated
Penal Code provides:
              “It shall be unlawful for ;any person in any
      dry area to manufacture, ,distill,     ,brew, sell,    pos-
      sess for the purpose of sale, import into this
      State, export from the State, transport,        distrib-
      ute, warehouse,‘store,      soliait or take orders for,
      or for the purpose of sale to bottle,       rectify,
      blend, treat, fortify,     mix, or process any liquor,
      distilled    spirits,  whiskey, gin, brandy, wine, rum,
      beer or ale.”
            Article        66&23(a),    Vernon’s   Annotated Penal Code pro-
Vi.des in part:

            "(1). It is provided that any person who pur-
      chases alcoholic    beverages for his own consumption
      may transport    same from a ,place where the sale
      thereof is legal to a place where the possession
      thereof is legal.
                                                         *,
            “(2). Possession of more than one quart of
      liquor in a dry area shall be prima facie evidence
      that it is possessed’ for the purpose of sale.  As
      F;nded Acts 1937, 45th Leg., 1st C.S., S.B. #20,
          .

            “(3).   It is provided that it shall be lawful
      for the holders of Carrier’s   and Private Carrier’s
      Permits to transport liquor from one wet area to
      another wet area where in the course of such trans-
      portation   it is neoessary or convenient to cross a
      dry area.
            ” , . ., . ”

           It will be noted that under paragraph (a), Article
666-4 to transport any liquor in any wet area without first             hav-
ing procured a permit is unlawful.           It will be further noted
that under paragraph (b)~, 4rticle        666-4 that it is unlawful to
transport any liquor,     distilled    spirits,   whiskey, gin, brandy,
wine, rum beer or ale in a dry area.            It is our opinion that
titicle  6&6-23(a),    supra, is a defensive       statute designed to af-
ford one accused of transporting        liquor in violation     of para-
graph (b), Article 666-4, a complete defense against the charge
so made. In other words upon the accused making proof that he
was transporting    alcoholjc    beverages for his own consumption
from a point of purchase to a given destination,           his innocence
would be established.       Also where a holder of a carrier’s       permit
Hon. Bert Ford,   page 4    Co-4O63b


or a private carrier’s   permit was charged or accused of trans-
porting liquor in violation    of paragraph (b) of Article      666-4,
upon the accused making proof that he was transporting        liquor
from one wet area to another wet area where, in the course of
said transportation,   it was necessary or convenient to cross a
dry area would be a complete defense against the charge so
made. We do not think that the offense of transporting          liquor
in a wet area without a permit and the offense of transporting
liquor in a dry area are the same offenses.      Therefore,     it is
our opinion that your first    question should be answered in the
negative and is so answered.      (See the cases of Talley,v.
State, 147 S.W. 255 and Lancaster v. State, 147 S.W.(2) 476.)
In other words, before the party mentioned could be prosecuted
in Mitchell County for an offense committed in Howard County
but within four hundred yards of the county line, the offense
that the accused was charged with would have to be the same in
both counties.
           With reference   to your second question, we direct your
attention  to our opinion   No. O-1882 construing paragraph (a) of
Article 666-27, Vernon’s    Annotated Penal Code. We quote from
this opinion as followst
           “We think this section has reference    to shipment
     of liquor,   as that term is ordinarily   used and under-
     stood, as where a person orders liquor and it is de-
     livered   to him either by common carrier   or agent for
     the consignee or aonsignor.    It is our opinion that
     the same is not applicable   to the situation   presented
     by your statement of facts.”
          We think that the above mentioned opinion (No. O-1882)
answers your second question.   As this opinion was addressed to
you we are not enclosing  a copy of the same.
                                       Yours very truly
APPROVED MAR17, 1943
/s/ Grover Sellers                     KTTORNEY
                                              GENERAL
                                                    OF TEXAS
FIRST ASSISTANT
ATTORNEY GENERAL                       By /s/   Ardell Williams
                                       Ardell   Williams,  Assistant
APPROVED:OPINION COMMITTEE
BY:     BWB, CHAIRMAN
AW:mp:wb
