I’ve now successfully represented two sets of married couples charged with Furnishing Alcohol to a Minor, both of whom made the same mistake – allowing their teenage children to have friends over knowing alcohol would (or might) be present and expecting everything to be fine. Before talking about what Texas law has to say about the matter, let me just first say this: although I understand wanting to trust your children and treat them like adults, “if you can be drafted, you should be able to drink,” and all that, do you really want to trust all of their friends? The only reason both couples ended up in my office was because guests at the parties did something stupid, which really is to be expected if you allow teenagers to drink on your property don’t you agree? Having said that, in both cases there was no evidence that any of the parents had provided the alcohol that the underage kids were drinking, and they were charged, it appeared, for merely allowing underage minors to drink alcohol on their property. Therefore the question to be explored is:
What constitutes “furnishing alcohol” under Texas law?
Section 106.06(a) of the Texas Alcoholic Beverage Code provides in part:
. . . a person commits an offense if he purchases an alcoholic beverage for or gives or makes available an alcoholic beverage to a minor with criminal negligence.
Subsection (b) allows a minor’s adult parent, guardian, or spouse to purchase or give alcohol to the minor as long as they are “visibly present” when the minor possesses or consumes the alcohol, and subsection (c) provides that a violation of the statute is a Class A Misdemeanor.
As I stated before, none of the parents charged in my two cases were accused of actually giving alcohol to any of the minors present on their property, but rather the position of the arresting agencies and the District Attorney appeared to be that by merely knowingly allowing minors to consume alcohol on their property they were “mak[ing] available” alcohol in violation of the law. In both cases, all of the minors present denied that any of the parents provided the alcohol they consumed (with one exception I discuss below) and several of them specifically admitted that they had elsewhere obtained the alcohol consumed prior to their arrival at the parties.
I started my defense in each case by looking at the plain language of the statute. In each case it was clear that the State was not going to be able to prove that the parents gave alcohol to any minors, but rather were somehow going to attempt to prove that they made alcohol available simply by allowing alcohol to be consumed on their property. To me, it seemed very clear that the “makes available” language of the statute required that the person charged have at least purchased, or provided in some way, the alcohol the kids drank. I could think of no possible reading of the phrase “makes available” that could apply to alcohol that the kids themselves obtained.
After researching this issue I found that Texas criminal courts had yet to examine this question, however, I did find an appellate opinion from a civil lawsuit that was directly on point and provided a thorough and well-reasoned discussion of this matter.
In Kovar v. Krampitz, 941 S.W.2d 249 (Tex.App — Houston 1996), the 14th District Court of Appeals examined whether the appellees from a take-nothing summary judgment were guilty of negligence per se by violating section 106.06(a). In that case appellee H.E. Krampitz permitted his grandson to use his farm for a small party under two conditions: (1) the premises be kept clean, and (2) no drinking of alcohol was to occur on the property. Despite knowing that alcohol was consumed at previous parties hosted by the grandson on the property, Mr. Krampitz was not present during the party. Alcohol ended up being readily available to the minor attendees, one of whom, 18-year old Brian Kovar, drank at the party and then left with another attendee driving a friend’s truck. Sadly, while Kovar was driving the truck it crashed, killing him and severely injuring his passenger. Kovar’s blood alcohol content was found to be over the legal limit.
After stating the established legal principle that “an unexcused violation of a statute constitutes negligence per se if the injured person is a member of the class protected by the statute,” the Court first determined that Kovar was a member of the protected class (“minor” is defined in the Alcoholic Beverages Code as “a person under 21 years of age;” Kovar was only 18 years old at the time of the incident). Kovar at 252.
Next, the Court examined whether or not the statute itself was violated by determining whether there was any evidence that the appellees made alcohol available to Kovar, reasoning that the answer was controlled by how one defines “makes available.” Id. Since the phrase “makes available” was not defined in the Code, the Court looked at the definition of “available” in Webster’s Third New International Dictionary (“‘that [which] is accessible or may be obtained’” and “‘at disposal’”) as well as an opinion by the Texas Attorney General from 1972 which declared “that to make alcohol ‘available’ an offender must have ‘placed said alcoholic beverage where it is accessible to the minor.’” Id. In addition, the Court found instructive the caption for 106.06 which reads “Purchase of Alcohol for a Minor; Furnishing Alcohol to a Minor,” pointing out that although the word “furnish” appears nowhere in the section, the only reasonable reading of the statute was that it applied to “gives or with criminal negligence makes available an alcoholic beverage to a minor.” Id. Although the statute has since been amended slightly (see above), the Court’s conclusion still applies to the statute as it reads today, namely that the “legislature apparently intended the law to pertain to those who furnish or give alcohol to a minor.” Id. Since there was no evidence that the appellees “placed any alcohol on the farm where Kovar could obtain it, or that they provided, served, or furnished alcohol to Kovar,” the Court affirmed summary judgment on behalf of the appellees.
The first couple that hired me did so immediately after their arrest so that I was able to begin working on their behalf before the District Attorney even filed a case against them. Neither of them denied knowing that the teenage party goers they allowed on their property were drinking. Teenage boys being boys, an accident occurred on the property. Fortunately no one was seriously injured, but the authorities were called out and both parents were charged with Furnishing Alcohol to a Minor, despite no evidence that they provided any alcohol to the kids and evidence to the contrary that all alcohol consumed by the minors was brought to the party by the kids themselves. Using Kovar and a plain reading of the statute itself, I was able to convince the intake attorney that no crime had been committed and that the case should be declined.
The second couple did not contact me until after criminal cases were already filed against them. The facts in their cases were similar to those of the first couple (remember accidents happen!), except that both denied knowing that their child’s invited guests were drinking. I think it was easier for the Assistant District Attorney to offer a conditional dismissal of the cases (both were required to attend an alcohol awareness class and complete a few community service hours) because he felt it was believable that the parents did not really know what the kids were up to. However, my position was that under Kovar and a plain reading of language in 106.06(a), it didn’t matter whether or not they knew the kids were drinking because, once again, the alcohol consumed on their property was brought by the kids themselves and not given or provided to them by either of the defendants.
An interesting side note on the second case is that one of the kids at the party actually claimed that she had obtained alcohol surreptitiously from the parents’ personal supply after they went to sleep. Could the State have effectively argued, if this was to be believed, that the parents had indeed made alcohol available to a minor with criminal negligence? Maybe so, which raises the question of what level of supervision over alcohol in a person’s home must be maintained when minors are present to prevent being charged with Furnishing Alcohol to a Minor? Is it necessary to maintain surveillance or to lock up all of your alcohol when a minor is visiting? Going back to my first point, regardless of how the law should or should not be interpreted, is it really worth the risk of allowing underage drinking on your property just to be known as “cool” parents?
Conclusion
I think the frustration of the various police and sheriff’s departments involved in these cases, as well as that of the District Attorney, was that it just seems like a bad policy to say it is okay for property owners to allow minors to consume alcohol on their property and, as such, it must be a violation of the law, despite the fact that it’s pretty clear that it is not. In fact in the second case, the information charged my clients with not only making the alcohol available by providing or supplying it, but also, very creatively on the State’s part, with “making the alcohol available to said minor by providing a premises for the alcohol to be consumed.” It seems that this is the way that the police and prosecutors believe the law should be written, and it very well may be true that as a policy it is a bad idea to make it okay under the law for adults to allow minors to drink on their property. But this is not how the law is written, and it is up to the Legislature, not law enforcement or prosecutors, to change the law to correct the policy.
Craig Flory
October 31, 2016