Texas Attorney General Opinion: DM-84 Page: 4 of 5
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(DM- 84)
Honorable Doyle Willis - Page 4
volume, which is capable of use for beverage purposes, either
alone or when diluted.
Section 101.31 provides that no person in a dry area may "manufacture,
distill, brew, sell, import into the state, export from the state, transport, distribute,
warehouse, store, solicit or take orders for, or possess with intent to sell an alcoholic
beverage." Possession of more than one quart of liquor in a dry area creates a
rebuttable presumption of possession with intent to sell. Alco. Bev. Code 101.32;
Walden v. State, 272 S.W. 139 (Tex. Crime. App. 1925). "Liquor" includes wine, as
well as any other alcoholic beverage containing alcohol in excess of four percent by
weight. Alco. Bev. Code 1.04(5).
If the restauranteur possesses more than one quart of an alcoholic beverage,
he will be subject to the presumption that he possesses it "with intent to sell"
pursuant to section 101.32. Whether he would be able to overcome this
presumption by presenting evidence about using it in preparing meals involves the
resolution of fact questions that cannot be addressed in the opinion process. For
example, it has been suggested that although some alcohol may be used in the
preparation of certain dishes, the alcohol may be completely evaporated by the time
the food is ready for consumption. Accordingly, we decline to answer your second
question.
SUMMARY
The owner or employee of a restaurant in a dry area would
violate section 101.31 of the Alcoholic Beverage Code if he
gave a glass of wine to patrons during meals purchased at the
restaurant. Whether the owner or employee of a restaurant
violates the code by adding alcohol to food is a question of fact
that cannot be resolved in the opinion process. Although
possession of a quart of alcohol creates a presumption that an
individual possesses with intent to sell, the presumption is
rebuttable, depending on the facts of any given circumstances.
Very truly yours,
DAN MORALES
Attorney General of Texasp. 419
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-84, text, January 30, 1992; (https://texashistory.unt.edu/ark:/67531/metapth273893/m1/4/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.