The opinion
Honorable 0. N. Humphreys Opinion M-227
Acting Administrator
Texas Liquor Control Board
Sam Houston State Office Building
Austin, Texas 78711 Re: Twenty-two questions
relating to the legal-
ity or Illegality of
sale, service, ,and
possession of alcoholic
beverages by commer-
cial airlines or em-
ployees thereof, within
the State of Texas and
the air space over
territory within state
Dear Mr. Humphreys: boundaries.
Your office has recently submitted, to be answered by an
official opinion, a series of twenty-two questIoni relating
to the legality or lllega~lty. of sale, service, and possession
of alcoholic beverages by commercial airlines or employees
thereof, within the State of Texas and the air space over
territory within state boundaiies.
> The initial question which yolk have presented Is stated
as follows:
“Question 1 0 Is It unlawful for an employee
of .a commercial airline to sell liquor or beer,
which liquor or beer was not manufactured by the
process of distillation and does not contain dls-
tilled spirits, to a passenger inside an airplane
which airplane is owned by such commercial airline
and 1s in the air above the State of Texas and is
In route from a point In Texas to another point In
Texas?”
-low-
. ,
Honorable 0. N. Humphreys, page 2 M- 227
It Is well settled that an employee assisting lnan il-
legal act Is equally guilty with his principal and both may
be Indicted and punished, Consequently, for the purposes of
our answer to your first and subsequent questions we will con-
sider the employee’s liability, If any> to be co-extensive with
the liability, If any, of the airlines.
In answering your first and subsequent questions, we will
consider further that liquor or beer not manufactured by a
process of distillation and not containing distilled spirits
Includes any intoxicating alcoholic beverage manufactured by
(or containing alcohol manufactured by) fermentation or other
means without regard to whether such beverage is commonly de-
signated liquor, beer, malt liquor, wine or by some other
nomenclature.
Under the Twenty-First Amendment to the Constltutlon of
the United States, the states have broad regulatory powers over
liquor traffic. The Twenty-First Amendment has in fact largely
relieved the states of the limitations set by the Commerce and
Supremacy clauses of the Constitution of the United States, In-
sofar as regulations pertaining to traffic in Intoxicating
liquors Is concerned e On the other hand, the Twenty-First Amend-
ment does not Increase the territorial jurisdiction of the states
and does not empower the states to prohibit, Impose conditions
on, or regulate, the liquor traffic In territory which Is under
the exclusive lurlsdlctlon of the Federal novernment. Collins
v. Yosemite PaEk Co., 304 U.S. 518, 82 L.Ez. 1502, 58 S-09
(1941) Hostetter v. Idlewlld Liquor Corp 377 U.S. 324, 12 L-Ed.
2d 350; 84 S Ct 1293 (19b4). Dept e of Alcihollc Beverage Control
v. Ammdx Wardhoise, 378 U.S.‘124 12 L Ed 2d 743 84 S Ct lb57
lgb3) Johnson v, Yellow Cab T&sit 60.: 321 U’.S. 381, 68 L.Ed.
14, 64 3 Ct 622 (1944 . Epstein v. Lordi, 261 F.Supp, 921 (D.C.
N,J., 1966), ‘affirmed, 6 3 Ct lOb’(1967r 15 C.J.S, 739, Com-
merce, Set, 99; 48 C.J.S. 1~4,‘Intoxicatin~ Liquors, Sec. 33.
The sovereign states possess jurisdiction of the air space
above their territories and may exercise police powers therein
except where the same have been granted to or assumed or pre-
empted by the federal government D 2 C,J.S. 903, Aerial Naviga-
tion, Sec. 3, and authorities there cited. Likewise, state
statutes regulating the operation of aircraft have been held con-
stitutional as within the police power of the state, and as not
violating the commerce clause of the federal constitution, 2 C,J S.
- 1091-
. .
Honorable 0. N. Humphreys, page 3 M-227
:
905, Aerial Navigation, Se@, 8, and authorities there cited.
Congress claims only concurrent jurisdiction with the
: states to regulate the legality or Illegality of acts per-
formed while in flight over a state’s territory. The com-
mittee report which accompanied the most recent amendment of
the penal provisions of the Federal Aviation Act of 1958
(49 U.S,$. 1472) makes this very clear, Said report reads In’
part:
“‘The Committee of Interstate and Foreign
Commerce, to whom was referred the bill (H,R.
8384) to amend the Federal Aviation Act of
1958 to provide for the application of Fgderal :’
criminal law to certain events occurring on
board aircraft in air commerce, having considered
the same, report .favorably thereon with amend-
ments and recommend that the bill as amended do
pass D
,I Q /r7n the case of crimes committed in
the airsnace-oiler States of the United States.
most of ihe acts with which this legislation
-Ions of the laws .of one or ., .,, ,,
more of such St*, However, crimes committed
iace
n. over a State nose Deculiar and
extremely tEoublesome problem; of enforcement
which are not present when such crimes take
place on the ground. When a criminal moves the
scene of his ectlvlty to an aircraft In flight
he is able to take advantage of practical and
physical difficulties that may seriously im-
pair effective apprehension and prosecution,
particularly If the offense Is one against the
law of a State rather than against Federal law,
Furthermore, in the case of offenses against
State law, State ofi%cials are often faced with
an inauperable task In trying to establish that
a particular act occurred In the airspace over
that State -- and in some cases, under State law,
It would be necessary to prove that the offense
waa committed over a particular county In the
- 1092 -
Honorable 0. N. Humphreys, page 4 M- 227
State e It Is obvious that such proof may be
very difficult and often impossible If the
offense la comml-,,Lsr:on
Jo- a’ jet aircraft traveling
at 600 miles per hour at an altitude of 30,000
feet.
“The offenses pu~nlshable under this legls-
lation would not replace any State jurisdiction
bt Id h b th F d 1 dStt 1
pyov%d ;oF ~~~ls~mentef~?th~nsameaa~t ,aYde In
addition to the State criminal 1a.w:
“As is well known, the Federal Government
does not ,provlde a general crltilnal code for all
crimes commltt d I th a es. hat 1s
the province oef th: va%oEs gtates. However,
criminal codes of the States are at times SUD-
plemented by Federal law In fields where the‘
Federal Government has responsibilities.
“We wish to emphiisize that it is not our ln-
tent to divest the States of any jurisdiction they
:+ow ,bave. Thia leglslatlon merely seeks to give
the.:,Federal Government. concurrent jurisdiction with
the States In certain areas . . n
II
. . .
“The\‘present law ‘relating to crimes aboard
aircrayt In flight follows the normal rule, which
1s~ that the offense is dealt with under the law
of the State where the offense occurs.
“One difficulty here ‘Is that the State above
which the- crime may have been committed is often
not the State in which. the aircraft lands o The
second State has 3jo jurisdiction, and cannot even
arrest the criminal a If the State over whose
territory the crime occurred Is disposed to act,
it first ‘must collect the evidence necessary to
establish that a crime has been committed within
Its jurisdiction. This evidence, however, Is
hard to gather when the witnesses on board the air-
- 1093 -
Honorable 0. N. Humphreys, page 5 M- 227
craft disperse after landing. Assuming that an
Indictment Is returned in the flrst’state, there
,ls still the question of extradition and not all
crimes are extraditable D
“In contrast, If the crime also Involved
violation of a Federal law, the offender could
be taken Into custody by Federal law-enforcement
agents when the aircraft lands and criminal prose-
cution Instituted.
“This, we want to make clear, does not
any State jurisdiction but would only suppT-T@
emen
t*-” 2 U S Code and Administrative News (87th Cong.,
lsi Sees& 1961) 2563. (Emphasis added. )
In view of this clear declaration of legislative policy
that state and federal penal laws are to operate concurrently
in the airspace over the states, it would take an equally
clear exception from this general policy to allow commercial
airlines to perform with Immunity while In-flight over a state,
such acts with regard to Intoxicating liquors as would otherwise
be defined as criminal under state law. Otherwise, the general
policy would control, and It could not be held that estate penal
laws apply only piecemeal, to define ascrimes some acts or
omissions occurring fn the airways, but that penal laws relating
to liquor are in some mysterious special category,
That portion of the Federal Aviation Act of 1958 which
sets up the office of Federal Avfatfon Administrator provides,
Inter alla, that he shall promote air safety “by prescribing
0 e D minimum standards 0 D ~ to provide adequate1 for national
security and safety in air commerce.” ,49 U.S.C, 1921(a)(6),
Pursuant to such authority the following regulation has
been issued by the Administrator:
7 “Section 121.575 - Alcoholic Beverages
“(a) No person may drink any alcoholic
beverage aboard an aircraft unless the cer-
tificate holder operating the aircraft has
served that beverage to him,
- 1094 =
Honoi+ble 0. N. Humphreys, page 6 M-227
“(b) No certificate holder may serve
any alcoholic beverage to any person aboard
any of Its aircraft if that person appears
to be Intoxicated.
,. “(c) No certificate holder may allow
any person to board any of Its aircraft if
that person appears to be Intoxicated.
“(d) Each certificate holder shall,
within five days after the Incident, report
to the administrator the refusal of any
,I person to comply with paragraph (a) of this
’ section, or any disturbance caused by a per-
aon who appears to be Intoxicated aboard any
of Its aircraft.’
It Is argued on behalf of interested airlines that the
above quoted provision reflects an authorization from the
Federal Aviation Administrator to fe,derally certificated
airlines that would supersede state liquor laws. Such an
interpretation cannot be supported under recognized canons
of construction which are applied to statutory and admlnls-
tratlve provlslona. In this regard, we note that the pro-
vieion doea not on lta face purport to depart from the
general pdllcy which would allow state and federal penal
laws to operate concurrently in the air space above the
states. It should therefore be harmonized with general policy
by reading the authorization to regulate sale and service of
liquor which flrat meets the conditions Imposed by state penal
laws. Aaaumlng arguendo that the administrative regulation
should be read as a departure from general policy, and as pro-
viding Immunity to the alrllnea from state penal laws, the pro-
vision would not stand as an exception to the general policies
provided for by the United States Congress, but must fall, since
an administrative agency cannot enact policy Inconsistent with
policy provided by the Congress,
The Federal Congress In directing the Federal Aviation
Admlniatrator to Issue safety regulations, - the Federal
Aviation Administrator In issuing such regulations, - and
the Texas Legislature in enacting Subdivision 5, Article
46c-6, Vernon’s Civil Statutes (the provision of the Texas
Aeronautics Act adopting federal safety regulations), - were
eabh directly concerned with defining and enumerating acts
Honorable 0. N. Humphreys, page 7 M-227
or omissions in flight which should be considered unsafe,
At other times both State and Federal Governments have bben
directly concerned with defining and enumerating acts or
omissions which should be considered illegal or prohibited.
We are not here concerned with the issue of whether certain
acts are compatible with the minimum standards of safety set
by the Federal Government, but rather we are concerned with
the issue of whether the acts In question are legal under
state penal law which applies concurrently with federal penal
law In the airspace over the State of Texas.
In 48 C.J.S. 236, Intoxicating Liquors, Set, l?l, the
rule of construction generally applied to state legislation
reglilatlng alcoholic beverages is stated as follows:
“Where the sale of Intoxicating liquors Is
not prohibited, but is made subject to license,
aa a general rule all persons who engage In the
business of selling Intoxicating liquors, or who
m&ke such selling a part of their business, or
who follow a business which customarily Includes
such selling, must procure a license D . .‘I
Article 666-4, Vernonfs Penal Code, provides In part:
“It shall not be unlawful to o Q - sell,
Import 9 export, transport, distribute, ware-
house, store, possess, fir 7 possess for the
purpose of sale 0 0 0 ally Ilquor in this State,
0 a 0 provided that the right or privileges
so to do are granted by any provision of this
.Act o o o Any act fif the nature described 7
,done by any person-which is not granted in-
this Act is hereby declared to be unlawful.”
A similar prohibition against the unlicensed sale, etc,
of “beer” appears In Article 667-3, Vernon’s Penal Code.
Moreover, the legislature would hardly have bothered to pro-
vide for licenses under which various intoxicating beverages
could lawfully be sold, etc, If it was Intended that such
beverages could lawfully be sold without a license.
A reading of the entire Texas Liquor Control Act clearly
indicates that Texas follows the general rule stated above
and beverages of Intoxicating alcoholic content were only to
be commercially dealt with In this State fn such a manner as
- 1096 -
Honorable 0. N. Humphreys, page 8 M- 227
has been specifically authorized by the Texas legislature --
I.e., by licensees acting under the control and supervision
of the Texas Liquor Control Board.
Several provisions of the Texas, Liquor Control Act
which directly relate Its coverage to aircraft make it clear
that the act was to extend to aircraft. See, for example,
Article 666-15(12) (which, we recently discussed In Attorney
General’s Opinion M-26 (1967)), which authorizes the Texas
Liquor Control Board to Issue a carriers permit to federally
certificated airplane lines to transport liquor a See also
Article 666-17(15) which Is quoted and discussed infra in
connection with our answer to your fifteenth, sixteenth and
seventeenth questions.
Although the legislature has provided for permits author-
izing carriage or transportation of liquor by commercial air-
plane lines, no permit or license has been authorized, which
would allow the sale or service of alcoholic beverages aboard
airlines while In-flight over the State.
Pursuant to the above discussion and authorities cited,
your first question Is therefore answered Wthe affirmative
-- I.e., It Is presently unlawful for an employee of a com-
mercial airline to sell liquor or beer In the air above the
State of Texas since such traffic In Intoxicating liquors Is
permitted within this state only as has been specifically
authorized by the legislature; sales In the airspace above
the state are subject to state laws ; and there Is presently
provided no license or permit by which sales of lntoxlcat-
lng beverages aboard aircraft may be legally conducted In
Texas D
Your second and third questions are stated as follows:
“Question 2 0 Is It unlawful for an em-
ployee of a commercial airline to sell liquor
or beer, whjch liquor or beer was not manufactured
by the process of dlstlllatlon and does not con-
tain distilled spirits, to a passenger Inside an
airplane, which airplane is owned by such com-
mercial airline and Is In the air above the State
of Texas at the time of the sale and Is In route
from a point In Texas to a point outside of Texas?
-1097-
Honorable 0. N. Humphreys, page 9 M-227
“Question 3. Is it unlawful for an em-
ployee of a commercial alrline to sell liquor
or beer, which liquor or beer w;?‘iisiiot manufactured
brtherocess of distillation and does not con-
tain distilled solrits. to a oasseneer inside an
airplane, which airplane his owned~ by such com-
mercial airline and Is in the airabove the State
of Texas at the time of- fie sale and is in route
from a point outside of Texas to a point in Texas?”
(Emphasis added. )
Questions 2 and 3 are answered in the affirmative
pursuant to the discussion and authority cited in answer
to the first question. The reach of Texas Penal Laws is
co-extensive with state borders, and, the appllca billty of
such laws would therefore not be affected by the point of
origin or point of destination of an airflight.
In connection with your fourth question you have cited
numerous provisions of the Texas Liquor Control Act. Your
question Is then stated as follows:
“Question 4. If your answer to either
Question 1, Questlon 2, or Question 3 is ‘yea’
which’ of the foregoing provlalons of the Texas
. Liquor Control Act have been violated?”
There are numerous provisions In the Texas,Liquor Control
Act pertaining to‘ Illegal sales, illegal possession for the
purpose of sale, illegal transportation, etc., and offenses
are further categorized as to whether they occur in a wet area
or dry area and as to how the precise alcoholic beverage in-
volved Is manufactured or chemically composed, the .sise of
the paokage in which it Is contained, eta, The precise pro-
visions of the Act which might be violated by any given sale
would’have to be determined largely upon the particular facts
and circumstances of the individual case.
Y&r fifth question Is stated as follows:
“Question 5. If your answer to either
Question 1, Question 2, or Question 3 is ‘yes’
would the State have to prove that the offense
oocurred in a certain county for the purpose
of establishing venue for prosecution?”
- 1098 -
Honorable 0. N. Humphreys, page 10 M- 227
Article 13.17, Vernon ‘8 Code of Crimlna 1 Procedure
provides:
“An offense committed on board a vessel
which is at the time upon any navigable water
within the boundaries of this State, may be
prosecuted in any county through which the
vessel is navigated in the course of her voyage,
or in the county where the voyage commences or
terminates *” (Emphasis added .)
There Is no provision which would slmllarly set venue
for crimes committed aboard moving aircraft, although a ‘paral-
lel venue provision might prove essential to effective prose-
cution in some situations. For example, it might prove extremely
difficult to prove with particularity the county over which
a sale of lntoxicatlhg beverages occurred. However, crimes
committed aboard moving aircraft must currently be prosecuted
under the general penal venue statute, Art. 13.26, Vernon’s
Code of Criminal Procedure, which provides that:
“If venu~e ie not specifically stated, the
proper eounty for the proseoution of offenses
is that in which the offense was committed.”
Your fifth qUeStiOq.iB, therefore, anawered in the aft
flrmative, and venue mue’t be established In the county where
the offenee oharged oacured in order to.prosecute for either
an illegal sale or an illegal posseeaion.
Your sixth question is stated as follows:
“Question 6. Is it unlawful for an em-
ployee of a commercial airline to sell distilled
spirits by the drink to a passenger inside an
airplane, which airplane Is owned by such com-
mercial airline and Is in the air above The State
of Texas and IB in route between two points In
Texas?”
This question Is answered in the affirmative pursuant to
the diSCuSBion and authority cited in answer to the first question
posed e
- 1099 -
Honorable 0. N. Humphreys, page 11 M-227
In addition the legislature has directly prohibited
sale of liquor by the drink. Article 666-3, Vernon's Penal
Code, provides in part:
t(a) The term 'open saloon' as used In
this Act, means any place where any alcoholic
beverage whatever, manufactured In whole or in
partby means of th process of di till ti
liquor compo:ed or compoundEd lnapa$‘of
ed spirits, IS sold or offered for sale
for beverage Purposes by the drink or In broken
or unsealed containers, or arlyce where any
such liquors are sold or offered for sale for
human consumption on the premises where sold.
"(b) It shall be unlawful for any person,
whether as principal, agent, or employee, to
operate or assist In operating, or to be di-
rectly or Indirectly interested In the operation
of any open saloon In this state." (Emphasis
added.)
Your seventh question Is stated as follows:
"Question 7. If your answer to Question 6
Is syes' would it be necessary to prove that
the offense occurred In a,certaln county in
the State of Texas in order to establish venue
for the purpose of prosecution?"
Question 7 Is answered in the affirmative. Venue must
be established in order to prosecute for the illegal sale.
See Article 13.26, Vernon88 Code of Criminal Procedure, which
has been herein quoted in connection with our answer to
Question 5.
Your questions eight, nine and ten are stated as follows:
"Question 8. Is It unlawful for an em-
ployee of a commercial airline to 'possess ln-
Bide an airplane, which airplane Is owned by
such commercial airline and Is in the air above
the State of Texas and Is on a flight in route
between two points In Texas, a quantity of liquor
or beer from which was taken liquor or beer that
was sold to a passenger while such airplane was
on such flight?
-1100-
Honorable 0. N. Humphreys, page 12 M- 227
“Question 9. IS It unlawful for an em-
ployee of a commercial alrllne to possess ln-
side an airplane, which airplane IS owned by
such commercial airline and Is on the ground
at an air terminal In County X of the State of
Texas, a quantity of liquor or beer from which
was taken liquor or beer that was sold to a
paBsenger Inside such airplane when such alr-
plane was In the air above the State of Texas
In route from a point In Texas to the air ter-
minal In County, X of the State of .Texas?
“Question 10. Is it unlawful for an em-
ployee of a commercial airline to possess ln-
aide an a+rplane, which airplane Is owned by
such commercial airline and la on the ground
at an air terminal in County X of the State of
Texas, a quantity of liquor or beer from which
was taken liquor or beer that was Bold to a
passenger Inside such airplane when such alr-
plane was In the air above the State of Texas
in route from a point outside of Texas to the
air terminal In County X of the State of Texas?”
The above queatlone describe very strong cases of clrcum-
stantial evidence tending
_ to
_ establish
__. possession In a dry
area for the purpose of sale of liquor or beer or possesslon
In a wet area of liquor or beer for the purpose of sale ;;+f;-
out a permit of the class required for such privilege I
would be so even though the airline held a carrier’s permit
under Prticle 666-15(12) because the Acts above set out con-
stltute something more than the transporting authorized by
such permit. The past course of action described strongly
Indicates that possession Is for the purpose of sale and proof
of such past course of action would be sufficient to support
a jury finding that the Intent of the accused was to unlaw-
fully sell In the future the liquor or beer faund In his pos-
session. A conviction based on &uch jury fln&lng would be
sustained. Brooks v. State, 7 S.W.2d 768 (Tex. Crlm. 1940);
Morrison v. State, 230 S.W.2d 08 (Tex. Crlm. 1950).” However,
no act of poseession of Intoxicants is Illegal per se unaer
‘Texas law and It is necessary for a presumption of illegal
purpose to be drawn by’the fact flndin body in order to sus-
tain a conviction. Walton v. State, 1if 3 S.W.2d 203, 204 (Tex.
Grim. 1942); De Hart v. State, 36 S.W.2d 168 (Tex. Grim. ~1931);
- llOl-
Honorable 0. N. Humphreys, page 13 M- 227
Piper v. State, 34 S.W .2d 283 (Tex. Crlm. 1930). Proof of
Drier salea would be sufflcent to establish a Drlma facie case
bf~posses~lon for the purpose of sale but a jury or other
finder of fact would not be obligated to convict on such evi-
dence.
Your questions eleven and twelve are stated as follows:
"Question 11. Where an accused Is being
prosecuted for unlawful possession of liquor
or beer for the purpose of sale In a wet area
without a permit or license, Is evidence of a
recent prior unlawful sale of alcoholic bev-
erages by the accused In a dry area admissible
to prove the Intent of the accused to unlawfully
sell the liquor or beer In question in a wet
area without a permit or license.
"Question 12. Where an accused Is being
prosecuted for unlawful possession of liquor
or beer 'for the purpose of sale in a dry area,
Is evidence of a recent prior unlawful sale of
alcoholic beverages by the accused In a wet
area without a permit or license admissible to
prove the intent of the accused, to unlawfully
sell the liquor or beer in question in a dry
area?"
The law Is stated at 48 C.J.S. 477, Intoxicating Liquors,
Sec. 346b, Insofar as Is here pertinent as follows:
"In a proseoution for keeping or pos-
sessing Intoxicating liquors with an unlawful
intent or purpose, such as an intent to sell
unlawfully, all competent evidence tending to
show the commlaBlon of the offense by accused
or calculated to throw light on the lawfulness
or unlawfulness of his possession or on the
Intent with, or purpose for, which the liquors
were kept or possessed, including evidence of
matters before /dr anterior to the time of 7
. . . the offenze iB admissible, provided Tt is
not too remote and is kept within reasonable
limits in point of time.
3 1102-
Honorable 0. N. Humphreys, page 14 M- 227
“The facts admissible In evidence include
unlawful sales bye accused on recent occasions;
the ordering or receiving of, or stocking
ip’with, lntoxlcatlng liquors In quantities
larger than accused himself might reasonably
consume; /;ind 7 the indebtedness of. accused for
large pur%aa& of liquor . . . Evidence Is also
admissible to show the condition, appointments,
fixtures and surroundings of the room or place
where the liquors were kept . . ,‘I
The general rules which pertain to the admissiblllty of
evidence which reflect crimes committed by the’accused other
than the crime for which he Is on trial are relevant. See
McCormick on Evidence (West Hornbook Ed. 1954) pps. 326-333
for a more thorough dlsousalon than is here provided.
Pursuant to the above discussion, questions eleven and
twelve are answered in the affirmative. Proof of a prior il-
legal sale would be admissible to show Intent, motive, scheme,
etc ., If kept within reasonable llmlts within point of time
without regard to whether such Illegal sale oocurred in a wet
or dry area. Possession for the purpose of sale will constl-
tute the offense, without proof of whether the Intent is to
Bell in a dry or a wet area.
Your question number thirteen. is stated as follows:
“Question 13. Is It unlawful for an em-,
ployee of a commercial airline company to pos-~
Be88 in a storage area at an air terminal, which
storage area has been rented by the commercial
airline company, a quantity of liquor or beer
which Is to be placed on board an aircraft where
it is to be sold to passengers on board the air-
craft while the aircraft is in flight?”
As was stated In response to questions eight, nine and
ten, mere possession of intoxicating liquor or beer Is not
per se Illegal under Texas law and If merely being transported
under. a carrier’s permit the possession described would be
legal; otherwise, the purpose of possession would depend upon
the’ Inference drawn from the evidence by the fact finding body.
We observe that the question Is not limited by stating that sub-
sequent sales will take place In Texas. In order for such pos-
- 1103 -
.
Honorable 0. N. Humphreys, page 15 M-227
session for the purpose of sale to constitute an offense, the
possession must be for the purpose of sale In Texas.
Your question number fourteen Is stated as follows:
“Question 14. Where liquor or beer Is
possessed by an employee of a commercial alr-
line company In a storage area at an air ter-
minal, which storage area has been rented or
leased or Is owned by such commercial airline
company, may such liquor or beer be deemed to
be ‘stored’ within the meaning of Sections &(a)
or 4 b) of Article I of the TexaB Liquor Control
Act I Article 666-4, sec. (a>l and sec. (b) of
Vernon ‘8 Texas Penal Code)?
Question fourteen Is answered in the affirmative, unless
the airplane line has been Issued a “Carrier Permit” by the
Texas Liquor Control Board, pursuant to Article 666-15(12)
Vernon’s Penal Code, and the storage is In furtherance of such
permit. Whether such storage by an employee of the airplane
line Is In furtherance of such permit, or is stored or pos-
sessed for the purpose of making Illegal sales in Texas, is
a question of fact.
‘Yourquestions numbers fifteen, sixteen and seventeen are
atated as follows:
“Question 15. Is It unlawful for an em-
ployee of a commercial airline company that~ is
a bona fide common carrier engaged in Interstate
commerce to sell a container of liquor that con-
tains less than six ounces of liquor to a passenger
Inside an airplane, which airplane is owned by
such commercial airline company and is in the air
above the State of Texas at the time of the sale
a.yd is In route between two points In Texas?
“Question 16 o Is It unlawful for an em-
ployee of a commercial airline company that is
a bona fide common carrier engaged In Interstate
commerce to sell a container of liquor that con-
tains less than six ounces of liquor to a passenger
inside an airplane, which airplane Is owned by
such commercial airline company and is in the air
- 1104-
HQnorable 0. N. Humphreys, page 16 : M- 227
above the State of Texas at the time of the sale
and is in route from a point outside of Texas to
a point In Texas?
"Question 17. Is It unlawful for an em-
ployee of a commercial airline company thatls
a bona fide common carrier engaged in Interstate
commerce to sell a container of liquor that con-
talna less than six ounces of liquor to a passenger
,;2 In an airplane, which airplane is owned by such
commercial airline company and Is In the alr above
the State of Texas at the time of the sale and Is
In route from a point In Texas to a point outside
of Texas?"
: These questions are answered In the affirmative pursuant
to.'the discussion and authorities cited in connectlo: with
questions one, two, and three.
In addition, the legislature has directly prohibited the retail
sale of any liquor produced In whole or In part by the process
of distillation, In containers of less than one-half pint, and
has prohibited the retail sale of malt and vlnous liquor in .z
containers of less than six (6) ounces. Article 666-17(15),
Vernon's Penal Code.
Your question number eighteen iB stated as follows:
"Question 18. Where an employee of a com-
mercial airline company that la a bona fide common
carrier engaged In Interstate commerce sells a
container of liquor that contains leas than six
ounces of liquor to a passenger Inside an airplane,
which airplane 1s owned by such commercial alr-
line company and is in the air above the State of
Texas at the time of the sale, may the remaining
)
,.,.
q containers of liquor that contain less than six
ounces of liquor and are In the possession of such
employee Inside such airplane, be seized under a
proper search warrant on the theory that such re-
maining containers of liquor are possessed for the
purpose of sale In Texas In violation of Section,
17 (15) of Article I of the Texas Liquor Control
Act (Article 666-17, (15) of Vernon's Texas Penal
Code)?"
-1105-
‘/
.
3%
"'Hono ra b le 0 . N. Humphreys, page 17 M-227
Article 666-17(15) provides in part:
"(15) It shall be unlawful for any person
to Import, sell, offer for sale, barter, ex-
change, or possess for the purpose of sale any
liquor the container of which contains less than
one-half (3) pint; provided however, that In the
case of malt or vinous liquor a six (6) ounce
e the minimum
AS a bona flde'common carrier of persons engaged fin lnter-
state commerce, the airlines may be authorized by the,Texas
Liquor Control Board to transport liquor In containers of less
than one-half (3) pint, but not for sale, use or consumption In
.Texaa +
In answer to question 18, you are advised that once It
becomes apparent that the malt, vlnous or spirituous liquor
,,ls destined for sale, use, distribution, or consumption within
~,the State of Texas or lf the~authorlzation provided forln the
underscored portion of Article 666-17(15), quoted next above,
has not been obtained from the Texas Liquor Control Board, then
the beverage would be illicit beverage and subject to seizure
*by the State under a proper search warrant, Questlon 18 is
therefore answered In the afflrmatlve,
Your questlons numbers nineteen, twenty and twenty-one
relate to the sufficiency of a complaint or affidavit for the
Issuance of search warrants, Statutory provisions directly
,pertlnent to the questions presented are set out below.
Article 666-20, Vernon08 Penal Code, provides in part:
"A search warrant may issue under Title 6
of the Code of Crfmlnal Procedure for the pur-
pose of seizing and destroying any alcoholic
beverage possessed, sold, transported, e * 0
kept, or stored in violation of this Act e u ~
-1106-
. .
Honorable 0. N. Humphreys, page 18 M- 227
“Search wa’rrants may be Issued by any
magistrate upon the affidavit of a credible
person, setting forth the name or description
of the owner or person’ In charge of the prem-
ises to be searched, or stating that his name
and description are unknown, the address or
description of the premises and. showing that
the described premise is a place where some
specified phase or phases of this act are be-
ing viola ted.
“Except as herein provided the applica-
tion, issuance, and execution of any such war-
rant and all proceedings relative thereto
shall conform as near ,a8 may be to the pro-
visions of Title 6 of the Code of Criminal
Procedure . . .I’
Article 18.09, Vernon’s Code of Criminal Procedure,
provides In part:
“A warrant to search any place suspected
to be one where . . . Implements are kept for
the purpose of aiding In offenses may be Issued
by a magistrate on written sworn complaint,
setting forth: ‘~ * .’
“1 . A description of the place BUSpeCted;
2. A description of the kind of property
alleged to be concealed at such place, or
the kind of implement kept;
3. The name, If known, of the person sup-
i
posed to have charge of such place, where
It Is alleged that It is under the charge
*, of any one;
4. When It is alleged that Implements are
kept at a place for the purpose of aiding
in the commiaslon of the offenses, the
particular offense for which such imple-
,-ments are designed must be set forth; and
.
-1107: ‘.
:
. .
Honorable 0. N. Humphreys, page 19 M- 227
5. Such other facts as may be required by
Article 18~01 to establish probable cause.”
Article 18.01, Vernon18 Code of Criminal Procedure, pro-
vides:
“A ‘search warrant’ IB a written order,
issued by a magistrate, and directed to a peace
officer, comnrandlng him to search for personal
property, and to seize the same and bring, It
before such magistrate; or it Is a like written
order, commanding a peace officer to search a
suspected place where it Is alleged stolen pro-
perty Is commonly concealed, or Implements kept
for the purpose of being used In the commlsslon
of any designated offense,
?‘No search warrant shall Issue for any pur-
pose In this State unless a sworn complaint there-
for shall first be filed with the Issuing magls-
trate setting forth sufficient facts to satisfy
the magistrate that probable cause does In fact
exist for Sta issuance.”
Article 15.05, Vernon’s Code of Criminal Procedure, pro-
vides :
“The complaint shall be Bufficlent, without
regard to form, if It have these substantial re-
qulsites:
“1 * It must state the name of the accused,
If known, and if not known, must give some
reasonably definite description of him.
2. It must show that the accused has com-
mitted some offense against the laws of the
j. State, either directly or that the afflant
haB good reason to believe, and does believe,
that the accused has comml,tted such offense.
3. It must state the time and place of the
commission of the offense, as,deflnltely as
can be done by the afflant.
-1108-
. .
Honorable 0. N. Humphreys, page 20 M-227
,
4. It must be signed by the affiant bJ:
writing his name or affixing his mark,
Provisions of this nature are discussed In 48 C.J.S. 617,
Intoxicating Liquors, Sec. 393c, Insofar as here pertinent as
follows:
“Under the various constitutional and
statutory provisions protecting against un-
reasonable searches and seizures, an appli-
cation for a search warrant for a violation
of the liquor laws must Include ,a showing oft
probable cause. For such purpose, probable
cause consists of such facts and circumstances
%a would reasonably induce the belief that
accused Is guilty of a liquor law violation
or that a criminal violation of the liquor
laws Is being committed on the premises sought
to be searched or that property subject to
forfeiture is located on the premises sought
to be searched.
,I The existence of probable cause
does n&‘d&nd on the facts actually dls-
closed on the search, but on the showing made
on the application for the warrant . . .
II
. . .
“The application may sufficiently es-
tablish probable cause by setting forth the
evidentlary facts on which the application
is based . . . An Application which merely
allege6 legal conclusions is Insufficient .‘I
Your questions numbers nineteen, Wenty and twenty-one
are stated as follows:
“Question 19. If It is unlawful for an em-
ployee of a commercial airline comvny to sell
any type of alcoholic beverage inside an airplane
that is owned by such commercial airline company,
and is In the air above the State ,of Texas, would ’
a complaint or.affidavit of a passenger who pur-
chased such alcoholic beverage as a result of
- 1109-
., .
Honorable 0. N. Humphreys, page 21 M- 227
such unlawful sale of such alcoholic beverage
setting forth the details of the sales transaction
provide sufficient probable cause for a magistrate
to Issue a search warrant for the search of such
airplane and a seizure, as a result of such search,
of any alcoholic beverages In possession of any
employee of such commercial airline that are
found on such airplane?
“Question 20. If your answer to Question
19 Is ‘yes’ would such complaint or affidavit
of the passenger who purchased an alcoholic bev-
erage Inside an airplane In the air above the
State of Texas as a result of an unlawful sale
of such alcoholic beverage, setting forth the
details of the sales transaction, be insufficient
if it failed to state the County in which the
sale took place?
“Question 21. If it is unlawful for an
employee of a commercial airline company to
sell any type of alcoholic beverages Inside an
airplane that Is in the air above the State of
Texas, would a complaint prepared by a passenger,
who purchased such alcoholic beverages as a re-
sult of such unlawful sale of such alcoholic bev-
erages, setting forth the details of the unlawful
sales transaction, be Insufficient to support the
Issuance of an arrest warrant, or to support a
criminal prosecution, If such complaint failed to
state the County in which the unlawful sale took
place?”
While question twenty Is somewhat ambiguous, we assume
that in both questions nineteen and twenty the affidavit isimade
by a credible person and in addition to setting forth the details
of the unlawful sales transaction, the affidavit further states
c that liquor Is possessed by the airline company for the purpose
,of making Illegal sales .In Texas.
Question nineteen is answered in the affirmative in accordance
with the applicable statutes quoted above and the discussion In
connection with our answers to questions eight, nine, and ten, and
questions eleven and twelve above.
- 1110-
Honorable 0. N. Humphreys, page 22 M-227
Questlon twenty Is answered In the negative.. It is an-
necessary for the complainant to allege the ‘precise Texas County
where the unlawful sale occurred when the unlawful sale Is al-
leged as an evidentlary fact only (which tends to establish a
present violation of the law prohibiting the possession of liquor
for the purpose of sale within the jurisdiction of the magistrate).
To establish probable cause for the warrant to issue the com-
plainant should In his affldavlt identify the sale as one taking
place over the State (as by stating that the sale took place be-
tween two-<Texas points, or that the sale took place after an
announcement had beei made that the aircraft was within the
State, etc.)
Ques.tlon twenty-one is answered In the affirmative, as It
apparently relates to a complaint which would be used to Initiate
a prosecution of the employee for making an illegal sale. Such a
complaint must specify the County in which the sale occurred in
order to confer jurisdiction uaon the magistrate of such county to
Issue a warrant of arrest, or to support a criminal prosecution.
However, If the Import of this question Is directed to a
charge of possessing liquor for the purpose of sale, and the prior
sale Is merely evidentlary on the question of whether the liquor
is possessed for the purpose of sale, then this question is
answered In the negative, for, the reasons stated in answer to
question 20.
Your final question Is stated as follows:
“Question 22 O Where a commercial airline
charges a passenger for a ride on one of its
airplanes and thereafter when the passenger 18
Inside the airplane in air above the State of
Texas an employee of such commercial airline
serves a glass of liquor to such passenger free
of charge, does such transaction constitute a
sale of liquor by such employee of the commer-
cial airline to such passenger?” ‘,
We are unable to give an unqualified answer to this question
either in the affirmative or negative. Depending upon the cir-
cumstances presented In the particular case, a court or jury
could either find that the charge of serving alcoholic beverages
was added Into the price of the airline ticket and an indirect
c
- llll-
. . ..
,. Honorable 0. N. Humphreys, page 23 M- 227
“sale” took place in violation of the law or that the drinks
were in reality actually free as a part of the service given
to passengers and no “sale” took place,
SUMMARY
-------
It Is presently unlawful for an employee
of a commercial airline to sell lntoxlcatlng
alcoholic beverages In the air above the State
of Texas. If the sale of Intoxicating alcoholic
beverages takes place in the air space over
state territory, state law is applicable and such
sale is Illegal without regard to the point of
destination or point of origin of the airflight.
Venue for the purpose of prosecut lng offenses
(and jurisdiction for Issuance of a warrant) must
be laid In the county where the offense charged “’
occurs. In the aase of prosecution for illegal
possession for the purpose of sale, venue (and
jurisdiction for issuance of a warrant) is within
any county where Intoxicating alcoholic beverages
are possessed for the purpose of illegal sale. In
the case of prosecution for an illegal sale, venue
for trial (and jurisdiction for the issuance of a
warrant of arrest) Is in the county where the sa,le
occurred,
An unlawful sale may be properly alleged as
an evidentlary fact In an affidavit for the lssu-
ante of a Bearoh warrant (and may be proved In a
prosecution) for possession for the purpose of ll-
legal sale, since such a prior sale would show ln-
tent, motive, scheme, etc. In prosecution8 for
posseeslon of liquor for the purpose of sale, a
prior sale by the defendant, anywhere In Texas, may
be shown as evldentlary on the question of the pur-
pose of the possession.
Y&i% very trllly,
C, MARTIN
rney General of Texas
- 1112 -
. .
.’
.,~
:
Honorable 0. N. Humphreys, page 24 M-227 :
Prepared by Larry 3. Craddock
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
Kerns Taylor, Co-Chairman
W. V. Geppert
Harold Kennedy~
John Banks
Robert La++tlmore '
A. J'. Carubbl, Jr..
Executive Assistant
-1113-
_ . . .