Untitled Texas Attorney General Opinion

EE .i RNEY GENEEAL F TEXAS

November 29, 1972

Honorable Homer R. Taylor Opinion No. M- 1273 County Attorney 304 Courthouse Building Re: Does Art. 353c, V.P.C. Wharton, Texas 77488 prohibit persons from furnishing alcoholic beverages to a prisoner Dear Mr. Taylor: in a county jail? You have requested an opinion in reference to the following questions:

(1) "Does Art. 353c, VTPC prohibit persons from furnishing Alco- holic Beverages to a Prisoner in a County Jail?"

(2) "Is it a criminal offense to fur- nish alcoholic beverages to a prisoner in a county jail?" You advise us that a trustee of the county jail fur- nished beer to one of the prisoners confined in the county jail of your county. Article 353c, Section 1, Vernon's Penal Code, reads as follows: "It shall be unlawful for any officer or employee of the Texas Prison System or for any other person to furnish, attempt to furnish, or assist in fur- nishing to any inmate of the Texas Prison System any alcoholic beverage, narcotic drug, barbiturate, or drug stimulant ,thatwould cause prisoners to behave abnormally, except from the prescription of a physician. It shall also be unlawful for any person to take, attempt to take, or assist in taking any of the aforementioned

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articles into the confines of property belonging to the Texas Prison System which is occupied or used by prisoners except for delivery to a prison ware- house or pharmacy or to a physician'." (Emphasis added.) The words "Texas Prison System" have a definite and distinct meaning. The Legislature has placed the Texas Prison System under the supervision, management and control of the Texas Department of Corrections. Art. 6166a-1, et seq., V.C.S. On the other hand, County Jails are established by the Commissioners' Courts of the various counties in the State. Art. 2351, Subd.(7), V.C.S. In the interpretation of criminal or penal statutes, offenses cannot be created nor can omissions by the Legisla- ture, through inadvertance or otherwise, be supplied. Ratcliff v. State, 289 S.W. 1072 (Tex. Crim. 1927). Statutes cannot be extended bv construction to acts not fairlv and clearly embraced within their terminology. In order"to sus- tain a conviction, a particular act must plainly and unmistakenly be within the clear definition of the statute and if there exists any doubt whether the statute embraces a particular act, this doubt must be resolved in favor of the accused. Murray,v. State, 2 S.W. 757 (Tex. Ct. of App. 1886). No person can be punished for an offense not made penal by the plain import of the words of a law. Art. 7, V.P.C. Our opinion is the furnishing of beer to an inmate of a county jail does not fall within the prohibition of Article 353c, Vernon's Penal Cede, supra. We do not have sufficient factual information to make a determination as to whether furnishing beer to an inmate of a county jail is a violation of any other criminal statute.

S.JMMARY Article 353c, V.P.C., making it a penal offense for persons to furnish alcoholic beverages to inmates of the Texas Prison System, does no,tinclude County Jails.

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Re~$ctfully submitted,

FORD C. MARTIN

Prepared by E. L. Hamilton Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Mary Carol Cunningham Bill Craig Gerald Ivey Bart Boling SAMUEL C. MCDANIEL Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant

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