Possession of Alcohol by Minor: Texas Alcoholic Beverage Code §106.05

The Texas Minor in Possession law criminalizes the possession of alcohol by a minor.

This criminal offense, otherwise known as MIP, is a Class C misdemeanor, punishable by a fine up to $500 and includes other consequences specifically tailored for minors.

The Minor in Possession or “MIP” offense is a state law, not a city ordinance violation. However, it is generally handled in Municipal Court or JP court.

The Texas legislature codified this criminal offense in Texas Alcoholic Beverage Code Section 106.05. The law was not amended in 2023. The legislature most recently amended the law in 2017 when the legislature added provisions to the law that allows minors to escape penalty if they report a sexual assault when they are arrested or cited.

The Alcoholic Beverage Code classifies the Texas Minor in Possession of Alcohol law under Title 4 “Regulatory and Penal Provisions,” Chapter 106 “Provisions Relating to Age.” Learn more about the Texas offense of Possession of Alcohol by Minor below.

What is the current Texas law about Possession of Alcohol by Minor?

The current Texas law defines the offense of Possession of Alcohol by Minor in Alcoholic Beverage Code Section §106.05 as follows:^[1]

(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.

What does it mean to possess an alcoholic beverage?

The relevant issue in most MIP cases is whether or not the minor “possessed” the alcoholic beverage. Possession has a distinct meaning in the law and can be construed as actual or constructive possession.

Actual Possession means physical occupancy or control over property. This would be the actual holding of the alcohol on the person, such as a minor holding a can of beer in hand, a bottle of wine in a purse, or a flask on a belt.

Constructive Possession means control or dominion over a property without actual possession of custody of it. It is more difficult for the prosecution to prove this type of possession. The prosecuting attorney would have to show the minor was aware of the alcohol, was able to take actual possession of the alcohol, and also had the intent to take actual possession. Situations where this may arise include, riding in a car with alcohol present or attending a party where alcohol is present. The state’s prosecuting attorney can try to prove possession this way even if the minor was not drinking or actually holding any alcohol. Your defense lawyer would probably argue that this is ridiculous. But this would be up to a jury to decide.

Are there defenses to the Possession of Alcohol by Minor law?

Texas law does recognize exceptions to the MIP statute. A minor may legally possess alcohol under the following circumstances:

• Employment
  If it is in the scope of the minor’s lawful employment and the minor is an employee of a licensee or permitee^[2]
• Adult Supervision
  If the minor is in the visible presence of an adult parent, legal guardian, or adult spouse^[3]
• Law Enforcement Actions
  If the minor is under the immediate supervision of a law enforcement officer enforcing the alcohol beverage code (for example a sting operation enticing a vendor to sell to minors^[4]
• Educational Tasting
  If the minor is at least 18 years of age and is enrolled as a student in a university or college that offers a program in culinary arts, viticulture, enology or wine technology, brewing or beer technology, distilled spirits production of technology, and the beverage is tasted for educational purposes.^[5]
• Emergency Medical Assistance
  If the minor requested emergency medical assistance for a possible alcohol overdose for themselves or another. To qualify, the minor must have been the first person to request medical assistance, remained on the scene until assistance arrived, and cooperated with medical and law enforcement personnel.^[6]

What is the statute of limitation for Minor in Possession of Alcohol in Texas?

As a misdemeanor, Minor in Possession of Alcohol charges have a two-year limitations period.^[7]

What is the penalty for a Texas Minor in Possession of Alcohol offense?

In addition to a maximum fine of $500, a court will order between 8 and 12 hours of alcohol related community service and suspend a driver’s license for 30 days.^[8] If this is a second offense the community service will be between 20 and 40 hours and the license suspension increased to 90 days. However, if this is a third offense of this type the fine can be raised to $2000 and a jail sentence of up to 180 days can be imposed.

Can you get probation for Minor in Possession of Alcohol in Texas?

The Texas Code of Criminal Procedure allows both judges and juries to grant probation for Minor in Possession of Alcohol, and judges are also allowed to accept deferred adjudication plea deals.^[9]

However, any minor who has been previously convicted at least twice of an alcohol-related offense is not eligible for deferred disposition or deferred adjudication for the third conviction.^[10]

What level of crime is Minor in Possession of Alcohol in Texas?

The Alcoholic Beverage Code classifies Minor in Possession as a Class C misdemeanor, although it can be enhanced to a puinishment including both a fine of up to $2,000 and confinement in jail for 180 days.

Learn more about the penalty range for this offense in the section above.

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Legal References:

^1. Texas Alcoholic Beverage Code §106.05. This law is current as of 2024.^2. Texas Alcoholic Beverage Code §106.05(b)(1)^3. Texas Alcoholic Beverage Code §106.05(b)(2)^4. Texas Alcoholic Beverage Code §106.05(b)(3)^5. Texas Alcoholic Beverage Code §106.05(b)(4)^6. Texas Alcoholic Beverage Code §106.05(d)^7. See Code of Criminal Procedure 12.02(a)^8. See Texas Alcoholic Beverage Code §106.05(c), citing Texas Alcoholic Beverage Code §106.071^9. See Chapter 42, Texas Code of Criminal Procedure, Art. 42A.054, Art. 42A.056, Art. 42A.102 .^10. Texas Alcoholic Beverage Code §106.071(i)