WHAT IS POSSESSION OF ALCOHOL BY A MINOR IN TEXAS?
The Texas law against possessing alcohol by minors prohibits minors under the age of 21 from the possession of alcoholic beverages.
- What is possession in Texas? Under the Texas Penal Code Section 1.07, possession means “actual care, custody, control, or management.” This can take the form of actual or constructive possession. A person has actual possession if the person “knowingly has direct physical control over a thing at a given time.” United States v. Meza, 701 F 3d 411, 419 (5th Cir. 2012). A person has constructive possession if the person “had (1) ownership, dominion, or control over the item itself or (2) dominion or control over the premises in which the item is found.” Id. In other words, the evidence “must establish [an] adequate nexus between the accused and the prohibited substance.” United States v. Benbrook, 40 F.3d 88, 94 (5th Cir. 1994).Additionally, the Texas Alcoholic Beverage Code Section 1.04 defines “Alcoholic Beverage” as “alcohol, or any beverage containing more than one-half of one percent of alcohol by volume, which is capable of use for beverage purposes, either alone or when diluted.”
This broad definition (any beverage containing more than 0.5% alcohol by volume) encompasses traditional alcoholic beverages like beer, wine, and liquor, as well as lower-alcohol products like wine coolers.
WHAT IS THE POSSESSION OF ALCOHOL BY A MINOR LAW IN TEXAS?
Texas Alcoholic Beverage Code Section 106.05. POSSESSION OF ALCOHOL BY A MINOR
(a) Except as provided in Subsection (b) of this section, a minor commits an offense if he possesses an alcoholic beverage.
(b) A minor may possess an alcoholic beverage:
(1) while in the course and scope of the minor’s employment if the minor is an employee of a licensee or permittee and the employment is not prohibited by this code;
(2) if the minor is in the visible presence of his adult parent, guardian, or spouse, or other adult to whom the minor has been committed by a court;
(3) if the minor is under the immediate supervision of a commissioned peace officer engaged in enforcing the provisions of this code; or
(4) if the beverage is lawfully provided to the minor under Section 106.16.
(c) An offense under this section is punishable as provided by Section 106.071.
(d) Subsection (a) does not apply to a minor who:
(1) requested emergency medical assistance in response to the possible alcohol overdose of the minor or another person;
(2) was the first person to make a request for medical assistance under Subdivision (1); and
(3) if the minor requested emergency medical assistance for the possible alcohol overdose of another person:
(A) remained on the scene until the medical assistance arrived; and
(B) cooperated with medical assistance and law enforcement personnel.
(e) Except as provided by Subsection (f), Subsection (a) does not apply to a minor who reports the sexual assault of the minor or another person, or is the victim of a sexual assault reported by another person, to:
(1) a health care provider treating the victim of the sexual assault;
(2) an employee of a law enforcement agency, including an employee of a campus police department of an institution of higher education; or
(3) the Title IX coordinator of an institution of higher education or another employee of the institution responsible for responding to reports of sexual assault.
(f) A minor is entitled to raise the defense provided by Subsection (e) in the prosecution of an offense under this section only if the minor is in violation of this section at the time of the commission of a sexual assault that is:
(1) reported by the minor under Subsection (e); or
(2) committed against the minor and reported by another person under Subsection (e).
(g) A minor who commits a sexual assault that is reported under Subsection (e) is not entitled to raise the defense provided by Subsection (e) in the prosecution of the minor for an offense under this section.
Texas Alcoholic Beverage Code Section 106.071. PUNISHMENT FOR ALCOHOL-RELATED OFFENSE BY MINOR.
(a) This section applies to an offense under Section 106.02, 106.025, 106.04, 106.05, or 106.07.
(b) Except as provided by Subsection (c), an offense to which this section applies is a Class C misdemeanor.
(c) If it is shown at the trial of the defendant that the defendant is a minor who is not a child and who has been previously convicted at least twice of an offense to which this section applies, the offense is punishable by:
(1) a fine of not less than $250 or more than $2,000;
(2) confinement in jail for a term not to exceed 180 days; or
(3) both the fine and confinement.
(d) In addition to any fine and any order issued under Section 106.115:
(1) the court shall order a minor placed on deferred disposition for or convicted of an offense to which this section applies to perform community service for:
(A) not less than eight or more than 12 hours, if the minor has not been previously convicted of an offense to which this section applies; or
(B) not less than 20 or more than 40 hours, if the minor has been previously convicted once of an offense to which this section applies; and
(2) the court shall order the Department of Public Safety to suspend the driver’s license or permit of a minor convicted of an offense to which this section applies or, if the minor does not have a driver’s license or permit, to deny the issuance of a driver’s license or permit for:
(A) 30 days, if the minor has not been previously convicted of an offense to which this section applies;
(B) 60 days, if the minor has been previously convicted once of an offense to which this section applies; or
(C) 180 days, if the minor has been previously convicted twice or more of an offense to which this section applies.
(e) Community service ordered under this section must be related to education about or prevention of misuse of alcohol or drugs, as applicable, if programs or services providing that education are available in the community in which the court is located. If programs or services providing that education are not available, the court may order community service that it considers appropriate for rehabilitative purposes.
(f) In this section:
(1) a prior adjudication under Title 3, Family Code, that the minor engaged in conduct described by this section is considered a conviction; and
(2) a prior order of deferred disposition for an offense alleged under this section is considered a conviction.
(g) In this section, “child” has the meaning assigned by Section 51.02, Family Code.
(h) A driver’s license suspension under this section takes effect on the 11th day after the date the minor is convicted.
(i) A defendant who is not a child and who has been previously convicted at least twice of an offense to which this section applies is not eligible to receive a deferred disposition or deferred adjudication.
WHAT IS THE PENALTY CLASS FOR POSSESSION OF ALCOHOL BY A MINOR IN TEXAS?
Possession of Alcohol by a Minor in Texas is ordinarily a Class C misdemeanor, punishable by a maximum $500 fine.
- Is a Possession of Alcohol by a Minor charge enhanceable in Texas? Yes. If a minor older than 17 is convicted at least twice for Possession of Alcohol by a Minor, Purchase of Alcohol by a Minor, Attempt to Purchase Alcohol by a Minor, Consumption of Alcohol by a Minor (MIC), Misrepresentation of Age by a Minor, or a combination thereof, and commits any of those offenses a third time, the penalties are increased to a maximum fine of $2,000, and up to 180 days in jail.
WHAT IS THE PUNISHMENT RANGE FOR POSSESSION OF ALCOHOL BY A MINOR IN TEXAS?
The punishment range for Possession of Alcohol by a Minor charged as a Class C misdemeanor is a maximum $500 fine. If enhanced to the Class B misdemeanor punishment range, an accused faces up to 180 days in jail, and a maximum $2,000 fine.
WHAT ARE THE PENALTIES FOR POSSESSION OF ALCOHOL BY A MINOR IN TEXAS?
A person charged with Possession of Alcohol by a Minor as a Class C misdemeanor may be eligible for a period of Deferred Disposition not to exceed 180 days. A judge must also order the minor to complete eight to 12 hours of community service on a first offense, or 20 to 40 hours if the minor has a prior conviction.
If enhanced to a Class B misdemeanor with two prior convictions while still a minor, a person may be eligible for probation after a conviction, for a period not to exceed two years.
- Is a person probation-eligible for an enhanced Possession of Alcohol by a Minor charge? Yes. If a Possession of Alcohol by a Minor charge, ordinarily punishable as a Class C misdemeanor, is enhanced by prior convictions, a person may be placed on probation for no more than two years. However, a minor older than 17 facing an enhanced charge is not eligible for Deferred Adjudication probation (nor Deferred Disposition!) pursuant to Texas Health and Safety Code Section 106.071(i).
WHAT ARE THE DEFENSES TO POSSESSION OF ALCOHOL BY A MINOR IN TEXAS?
The statute specifies that it does not criminalize minors who possess alcohol during the scope of duly licensed employment, including waitstaff and those working in concert with law enforcement.
Similarly, this offense does not apply to minors who possess alcohol while in the presence of a parent, legal guardian, or adult spouse, as they may freely consume alcohol in these situations.
Minors may otherwise raise the statute’s Good Samaritan defense which shields minors who report and seek assistance during alcohol-related medical emergencies like an overdose or alcohol poisoning. Victims of sexual assault also have a defense under this statute as do minors who report the sexual assault to medical, law enforcement, or university authorities.
WHAT IS THE STATUTE OF LIMITATIONS FOR POSSESSION OF ALCOHOL BY A MINOR IN TEXAS?
The limitation period for Possession of Alcohol by a Minor, a Class C misdemeanor, is two years.
POSSESSION OF ALCOHOL BY A MINOR TEXAS
Texas prioritizes enforcement of strict zero-tolerance underage drinking laws, including Possession of Alcohol by a Minor, commonly called MIP. A Texas MIP can lead to devastating and lasting consequences, including hundreds of dollars in fines and a permanent criminal record. Repeat offenders are subject to enhanced fines and jail time. In collegiate environments, universities can impose their own discipline and may even proceed to expulsion in some severe cases.
