By Dallas and Collin County Criminal Defense Lawyer Jeremy F. Rosenthal
These cases are often the results of stings by police and law enforcement on bars, restaurants and stores. Texas Alcoholic Beverage Code Section 106.03 governs sale of alcohol to minors. That provision states,
“(a) A person commits an offense if with criminal negligence he sells an alcoholic beverage to a minor.
“(b) A person who sells a minor an alcoholic beverage does not commit an offense if the minor falsely represents himself to be 21 years old or older by displaying an apparently valid proof of identification that contains a physical description and photograph consistent with the minor’s appearance, purports to establish that the minor is 21 years of age or older, and was issued by a governmental agency. The proof of identification may include a driver’s license or identification card issued by the Department of Public Safety, a passport, or a military identification card.
“(c) An offense under this section is a Class A misdemeanor.
“(d) Subsection (b) does not apply to a person who accesses electronically readable information under Section 109.61 that identifies a driver’s license or identification certificate as invalid.
There are two main points I’d like to make about this statute. First, is that the inclusion of criminal negligence (which I’ve italicized above) as a mental state for this offense. Criminal negligence is the lowest (or most easily proved) culpable mental state in Texas law. And under Texas Penal Code 6.02(e), if the prosecution proves actual intent, knowledge, or even recklessness — then they’ve proved “criminal negligence” as well.
A person acts with criminal negligence with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.
Proving someone acted with “criminal negligence” is highly confusing in these types of prosecutions because courts generally won’t give a jury any more guidance as to it’s definition than I just did above.
Additionally, the statute essentially gives an out to persons that sell alcohol to minors under subsection (b) — as it is a defense to prosecution if the person who presented the identification did so with an “apparently valid” form of identification. But if the person has a way to electronically verify the information then the affirmative defense doesn’t apply no matter how good the fake i.d. was.
The sale of alcohol to minors is a Class A misdemeanor which puts it above DWI’s or possession of small amounts of marijuana. It’s punishable by up to a year jail and a fine not to exceed $4,000.
*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For any legal advice you should consult an attorney directly.