This seems really simple for me. 46.035 says, in part, that one commits an offense if he carries on the premises of a 51% location. (Paraphrased for brevity) 46.035 also says that IN THIS SECTION, premises means a building or portion of a building. It does not say that premises has the definition of the Texas Alcoholic Beverage Code. It does not say premises has the definition of penal code 46.02. (At least that law is in the same code)srothstein wrote:Yes, you would be charged under the Penal Code section 46.035. I am well aware of the definition of premises under the Penal Code section that says that this is not a premise. But I am also aware of the definition of a licensed premise under the Alcoholic Beverage Code. There premises is different, as it says: "Sec. 11.49. PREMISES DEFINED; DESIGNATION OF LICENSED PREMISES. (a) In this code, "premises" means the grounds and all buildings, vehicles, and appurtenances pertaining to the grounds, including any adjacent premises if they are directly or indirectly under the control of the same person."
It does not matter what the ABC code defines for licensing businesses.
I would. The law is crystal clear to me.I agree with you that the charge should never be made or should be thrown out by the court. I am just not willing to bet that the courts would agree.
The laws are not conflicting. 46.035 is specific. Had they intended a different definition than that given in 46.035, they could have written it like 46.03 for schools. In that section, the legislators showed their intent for schools by writing that off limits were any building or grounds where a school sponsored event is taking place is off limits. That same section uses the term premises to describe other off limits.EDIT: I just thought about one other point to consider. One of the points the courts would consider is that generally, one law cannot make another law senseless. When that happens the courts will try to look at the intent of the legislature. Since TABC can issue a 51% license to a location that has no buildings at all, then the definitions of premises in the ABC makes the definition of premises senseless. The intent of the legislature is to not allow carrying in locations that are primarily sales of alcoholic beverages for on premises consumption. It would really depend on the specifics of the case making it to the court. If the premises had a building with a small area of tables on the sidewalk, the court might say the law really did mean just the building. If the licensed premise had no buildings but sold to an outdoor crowd walking around, it might rule the intent was to make the entire grounds off limits.
Had the legislature meant for 51% locations to use a different standard, they would have referenced the TABC code, or even used the phrase, "building or grounds". They did not. They used a word that is defined right there in that section of law.
Using the logic that some other definition might apply could also extend to the definition of premises in 46.02 which includes real property. Under your logic, a person carrying in nis car on a professional sporting event parking light might be charged because elsewhere in chapter 46 premises includes parking lots.