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Just to make sure I understand something...

The legal term "not a defense to prosecution" does not mean that something cannot be used by the defense, correct?

Conversely, if something is a "defense to prosecution", it means a trial (or even an arrest) is unlikely.

And so, just because the lack of a visible 51% sign is "not a defense to prosecution", that fact doesn't keep the defense lawyer from hammering the point to show the lack of mens rea, right? Especially since the standard for violating the law requires "knowingly, intentionally, or recklessly".

It's got to be just about impossible to enter a 51% premises without having a good idea that it's a "bar", and Charles has shown us that "recklessly" translates to "should have known, but did it anyway".

Still, I can think of a few circumstances where it's possible. Just theorizing and hypothesizing... a business-class hotel lounge that happens to be licensed separately from the restaurant (for whatever unknown corporate reasons). A winery that happens to have a 51% license to go beyond plain "sample tasting". A 51% ice house with outdoor picnic tables under an awning (where are the "premises"?)

However unlikely it might be, I suppose it's possible to be charged under this section for carrying where no 51% sign is posted. Lack of a sign is going to go a long way towards casting "reasonable doubt".

Kevin

KBCraig wrote:Just to make sure I understand something...

The legal term "not a defense to prosecution" does not mean that something cannot be used by the defense, correct?

It doesn't mean that the defendant can't defend the case, as in my example about the mens rea, but it does mean you can't use the specified fact as a defense. For example, having a CHL isn't a defense to carrying in a school building.

KBCraig wrote:Conversely, if something is a "defense to prosecution", it means a trial (or even an arrest) is unlikely.

It means it's less likely, but how much so depends on the defense involved. Some defenses to persecution may not lend themselves to easy determination by a LEO on the scene, while others may be quite clear. For example, being an off duty LEO or having a CHL is easily determined by the LEO on the scene.

KBCraig wrote:And so, just because the lack of a visible 51% sign is "not a defense to prosecution", that fact doesn't keep the defense lawyer from hammering the point to show the lack of mens rea, right? Especially since the standard for violating the law requires "knowingly, intentionally, or recklessly".

Correct, but attacking the mens rea is not often easy to do.

Regards,
Chas.

In hopes of not appearing absorbed by the minutae, I would like to confirm the statute means the establishment has to make 51% of gross receipts from the sale of alcohol for on-premise consumption NOT 51% net profit from those sales?

I ask because the percentage profit from sales of alcohol is much higher than for food.

Correct - revenue (sales) as opposed to profit. And I agree for the same reason.

Some good discussion here. But, back on the original situation: Methinks someone should contact Texas Alcoholic Beverage Commission about the location in question. Me-also-thinks that TABC will motivate their act to get proper signage posted. And I doubt it will include "51%". And they sure don't supply 30.06s.