Can a restaurant in a dry Texas county give customers a free glass of wine or cook with alcohol?

Texas AG Opinion DM-0084: Free Wine and Cooking Alcohol in Dry Areas

Plain-English summary

A House committee chairman asked two questions about a restaurant in a "dry" area, meaning a county, precinct, or town where local-option voters have made the sale of that kind of alcoholic beverage unlawful. First, may the restaurant give patrons a free glass of wine with their meals? Second, may the restaurant keep alcohol on hand to cook with?

On the first question, the Attorney General said no. Section 101.31 of the Alcoholic Beverage Code bars a person in a dry area from selling alcohol (along with manufacturing, transporting, storing it, and so on). The opinion treated a "free" glass of wine served with a paid meal as a sale in disguise. It relied on Savage v. State and on a 1965 Attorney General opinion (C-421), which had read Savage to mean that furnishing alcohol with a meal is a sale as a matter of law: the price of the meal is the consideration for everything served, alcohol included. Calling the drink a gift does not change that, or anyone could sell liquor and escape the law by relabeling the sale a gift.

On the second question, the Attorney General declined to give a flat answer. Section 101.32 says that possessing more than one quart of liquor in a dry area creates a rebuttable presumption that the person possesses it with intent to sell. A restaurateur holding more than a quart would face that presumption. Whether the restaurant could rebut it, for example by showing the alcohol is used in cooking and may largely evaporate before the food is served, turns on facts that the opinion process cannot resolve. So the opinion answered the wine question and left the cooking question to be decided case by case.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Alcoholic Beverage Code's dry-area, local-option, and private-club provisions have been amended since 1992. Verify current law before relying on any specific rule or section number mentioned here.

Common questions

Is a free glass of wine with dinner really a "sale"?
Under this opinion, yes. When alcohol is furnished as part of a paid meal, the law treats the price of the meal as covering the drink too, so it is a sale. The opinion relied on Savage v. State and Attorney General Opinion C-421 for that rule.

Why does giving it away not get around the law?
Because the law looks at substance, not labels. The reasoning the opinion quoted warned that if calling a sale a "gift" worked, a dealer could hand a glass of liquor to anyone who bought some small item and evade the licensing and sale laws entirely.

So can a dry-area restaurant cook with wine or other alcohol?
The opinion would not say yes or no. It noted that possessing more than a quart of liquor in a dry area raises a rebuttable presumption of intent to sell (section 101.32), and whether a restaurant could overcome that by showing the alcohol is used in cooking is a fact question it could not decide.

What makes an area "dry"?
An area is dry as to a particular type and alcoholic content of beverage when local-option voters have made the sale of that beverage unlawful there. The authority for those elections comes from article XVI, section 20(b) of the Texas Constitution and the local-option provisions of the Alcoholic Beverage Code.

Background and statutory framework

Article XVI, section 20(b) of the Texas Constitution directs the Legislature to let local voters decide whether the sale of intoxicating liquors is prohibited or legalized, implemented through the local-option provisions of the Alcoholic Beverage Code (chapter 251; see § 251.14 on types and content, and § 251.71(a) defining a "dry area"). Section 101.31 lists the conduct barred in a dry area, including selling and possessing with intent to sell. Section 101.32 supplies the rebuttable presumption: possession of more than one quart of liquor in a dry area is presumed to be possession with intent to sell, a point the opinion supported with Walden v. State, 272 S.W. 139 (Tex. Crim. App. 1925). Section 1.04(1) defines "alcoholic beverage" and § 1.04(5) defines "liquor." The opinion's sale-by-gift analysis rested on Savage v. State, 88 S.W. 351 (Tex. Crim. App. 1905), and on Attorney General Opinion C-421 (1965), which in turn quoted Commonwealth v. Worcester, 126 Mass. 256 (1879). A footnote noted a statutory exception added in 1979 allowing private clubs using the "pool system" of storage to operate in dry areas.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 20(b) (local-option elections on liquor sales)
• Alco. Bev. Code § 251.71(a) (definition of "dry area"); ch. 251 and § 251.14 (local-option framework)
• Alco. Bev. Code § 101.31 (acts prohibited in a dry area)
• Alco. Bev. Code § 101.32 (presumption of intent to sell from possession over one quart)
• Alco. Bev. Code § 1.04(1) ("alcoholic beverage") and § 1.04(5) ("liquor")

Cases:

• Savage v. State, 88 S.W. 351 (Tex. Crim. App. 1905)
• Walden v. State, 272 S.W. 139 (Tex. Crim. App. 1925)
• Commonwealth v. Worcester, 126 Mass. 256 (1879)

Prior Attorney General opinion discussed: C-421 (1965).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0084
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0084.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

January 30, 1992

Honorable Doyle Willis
Chairman
General Investigating Committee
Texas House of Representatives
P. O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-84

Re: Whether the owner of a restaurant in a dry area violates section 101.31 of the Alcoholic Beverage Code by giving away wine to patrons or using alcoholic beverages for cooking (RQ-38)

Dear Representative Willis:

You ask whether a restauranteur may possess and use alcoholic beverages in his restaurant in a "dry" area of the state. The Texas Constitution provides that the legislature shall enact laws authorizing the voters of any county, justice's precinct, or incorporated town or city to determine by majority vote whether the sale of intoxicating liquors for beverage purposes shall be prohibited or legalized. Tex. Const. art. XVI, § 20(b); see Alco. Bev. Code ch. 251 (local option elections). The laws shall permit voting on the sale of intoxicating liquors of various types and alcoholic content. See Alco. Bev. Code § 251.14. An area is a "dry area" as to an alcoholic beverage of a particular type and alcoholic content if the sale of that beverage is unlawful there. Id. § 251.71(a).

You ask the following two questions about the owner of a restaurant in a dry area:

1. Whether a restaurant owner or employee who gives away, at the sole discretion of the owner, a glass of wine to patrons during their meals eaten in the restaurant, would be in violation of section 101.31, V.T.C.A., Alcoholic Beverage Code, where the premises are located in a dry area.

2. Whether a restaurant owner who possesses alcoholic beverages for the purpose of use in cooking or preparation of meals sold to patrons would be in violation of section 101.31, V.T.C.A., Alcoholic Beverage Code, where the premises are located in a dry area.

In addressing your questions, we assume that the area is dry as to all alcoholic beverages, including wine. In response to your first question, we conclude that a restauranteur or his employee may not give away a glass of wine to patrons during meals in a dry area without violating section 101.31 of the code.

Section 101.31 of the Alcoholic Beverage Code sets forth the following:

Except as otherwise provided in this code, 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.

Relying in part on Savage v. State, 88 S.W. 351 (Tex. Crim. App. 1905), this office concluded in Attorney General Opinion C-421 (1965) that the owner of a motor hotel and restaurant in a dry area who gave away beer or mixed drinks with meals would be in violation of the prohibition on sales of alcoholic beverages in dry areas. The issue in Savage was whether the "gift" of alcoholic beverages was, in fact, a gift or was actually a sale for purposes of the Sunday "closing law." The court initially held that the state failed to prove a sale. The dissent to this opinion stated as follows:

In contemplation of law, the moment defendant offers on his bill of fare to give beer with each lunch purchased, this forms part and parcel of the consideration for the purchase of the lunch, and, being a part of the same, constitutes, in law, a sale of the beer. To say otherwise would be to hold that a party could make a direct sale, and call it a gift, and yet could not be prosecuted at all for the sale, simply because he called the sale a gift.

Savage, supra, at 353. On rehearing, the majority concluded that the restauranteur had violated the law against selling intoxicating liquor on Sunday. Id. at 355. Attorney General Opinion C-421 analyzed the reasoning and conclusion of Savage and determined that it stood for the proposition that the furnishing of alcoholic beverages with meals constitutes a sale of the beverage as a matter of law. Attorney General Opinion C-421 at 3. This conclusion is well expressed by the language of the dissent quoted above and by the following language, which Attorney General Opinion C-421 also relied on:

The purchase of a meal includes all the articles that go to make up the meal. It is wholly immaterial that no specific price is attached to those articles separately. If the meal included intoxicating liquors, the purchase of the meal would be a purchase of the liquors. It would be immaterial that other articles were included in the purchase, and all were charged in one collective price. If a dealer should undertake to present a glass of liquor to everybody who should purchase some small article of him, it would be considered a mere evasion of the law prohibiting the unlicensed sale of intoxicating liquors . . . .

Attorney General Opinion C-421 at 4 (quoting Commonwealth v. Worcester, 126 Mass. 256 (1879)) (emphasis in opinion); see also Annot., 89 A.L.R.3d 551, §§ 15, 21(c) (1979) (sale of liquor).

Attorney General Opinion C-421 is dispositive of your first question. A restauranteur whose premises are in a dry area would violate section 101.31 of the Alcoholic Beverage Code by giving wine to patrons during meals at his restaurant.[1]

You next ask whether a restauranteur would violate section 101.31 of the Alcoholic Beverage Code by possessing alcoholic beverages in a dry area for the purpose of use in cooking or preparation of meals sold to patrons. Section 1.04(1) defines alcoholic beverage as follows:

In this code:

(1) "Alcoholic beverage" means 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.

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. Crim. 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 Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

[1] We note that there is now an express statutory exception to the general prohibition found in section 101.31 that authorizes the furnishing of alcoholic beverages in dry areas. In 1979, the legislature amended the private club provisions of the code, found in chapter 32, to allow the "pool system" of alcoholic beverage storage to be "used in any area" in private clubs. Acts 1979, 66th Leg., ch. 777, § 8, at 1968; see now Alco. Bev. Code § 32.06(a). A private club registration permit authorizes alcoholic beverages to be stored and served on private club premises. Alco. Bev. Code § 32.01. The use of the pool system of storage allows a private club to be located in a dry area.