Possession of Alcohol by a Minor – Texas Criminal Law

Texas Criminal Law

Texas criminalizes the act of possessing alcohol by a minor, otherwise known as “MIP” or “Minor in Possession.” This charge is a Class C misdemeanor, punishable by a fine up to $500 along with other consequences specifically tailored for minors.[1]

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.

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

The current Texas law is as follows:[2]

(a) Except as provided in Subsection (b) of this section, a minor commits an offense if he possesses an alcoholic beverage.

Clearly, then, it is important to know what Subsection (b) says:

(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.

What is the punishment for Possession of Alcohol by Minor?

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.[3] 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.

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[4]
  • Adult Supervision
    If the minor is in the visible presence of an adult parent, legal guardian, or adult spouse[5]
  • 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)[6]
  • 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.[7]
  • 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.[8]

Legal References:

^1. Texas Alcoholic Beverage Code §106.05(c)

^2. Texas Alcoholic Beverage Code §106.05

^3. Texas Alcoholic Beverage Code §106.071, cited as a reference from 106.05

^4. Texas Alcoholic Beverage Code §106.05(b)(1)

^5. Texas Alcoholic Beverage Code §106.05(b)(2)

^6. Texas Alcoholic Beverage Code §106.05(b)(3)

^7. Texas Alcoholic Beverage Code §106.05(b)(4)

^8. Texas Alcoholic Beverage Code §106.05(d)

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