What is minor in possession under ABC § 106.05?
Texas Alcoholic Beverage Code § 106.05 makes it a Class C misdemeanor for any person under 21 to possess an alcoholic beverage. The offense is filed in justice or municipal court, carries a fine up to $500 on a first offense, and triggers a driver's license suspension under Transp. Code § 521.342.
- A minor — § 106.01
- Texas Alcoholic Beverage Code § 106.01 defines "minor" as a person under 21 years of age for purposes of chapter 106. This is the alcohol-specific definition and is distinct from the Family Code's designation of 17 as the criminal-responsibility age. A 19- or 20-year-old college student is a "minor" under ABC § 106.05 even though that person is a legal adult for nearly every other purpose under Texas law. Age proof — typically a driver's license, government ID, or birth certificate — is rarely contested at trial, but identification of the defendant as the person in possession routinely is.
- Possesses — Tex. Penal Code § 1.07(a)(39)
- Possession is defined in Texas Penal Code § 1.07(a)(39) as actual care, custody, control, or management. Texas applies the same possession framework here as in drug-possession cases under Health & Safety Code ch. 481, requiring "affirmative links" between the defendant and the contraband when possession is constructive rather than actual. Garza v. State, 956 S.W.2d 99 (Tex. App.—San Antonio 1997), and the broader Texas affirmative-links jurisprudence (e.g., Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006)) apply to alcohol cases just as to drug cases — mere proximity to a beverage in a vehicle, a dorm room, or a party setting is not enough on its own.
- An alcoholic beverage — § 1.04(1)
- Texas Alcoholic Beverage Code § 1.04(1) defines an alcoholic beverage as alcohol, or any beverage containing more than one-half of one percent of alcohol by volume, capable of use for beverage purposes. The definition reaches beer, wine, and distilled spirits. Identification of the substance as an alcoholic beverage is an element the State must prove — typically through the arresting officer's testimony about labeling, odor, and observed contents. In some contested cases (open-container drinks at a party, unlabeled flasks, mixed drinks of uncertain origin), the State's proof of the alcohol element itself can be challenged.
- Penalty under § 106.071 — Class C and beyond
- A first or second MIP is a Class C misdemeanor — fine up to $500, no jail. A third or subsequent MIP is enhanced under § 106.071(c) — fine up to $2,000 and up to 180 days in county jail. Additional conditions are mandatory across all tiers: alcohol awareness course under § 106.115, community service of 8-40 hours depending on the offense number, and a driver's license suspension under Transp. Code § 521.342. The court is also generally required to notify the minor's parents on a first conviction, although the parent-notification provision has been modified over the years.
Minor in Possession under § 106.05 occupies a peculiar position in Texas criminal practice. Despite its filed location in the drug-crimes hub of most criminal-defense websites, the offense is an alcohol-only offense — possession of a controlled substance by a minor would be charged under Health & Safety Code ch. 481, not under ABC ch. 106. The statute targets a specific public-policy harm: underage drinking and its downstream consequences in traffic, health, and academic outcomes. The Texas Legislature has built a graduated response: a relatively modest first-offense punishment range, a stepped-up second-offense response with mandatory awareness and community service, and a sharp escalation at the third offense that introduces both jail eligibility and a meaningful fine increase.
Volume drives the practical importance of MIP defense in Texas. The offense is among the highest-volume Class C misdemeanors filed in DFW justice and municipal courts. College football games at the Cotton Bowl, fraternity and sorority events at SMU, Greek-row weekends at UNT-Denton, social events at UTA, off-campus parties near TCU, and house parties throughout the DFW metroplex generate thousands of MIP filings per academic year. Many of these cases involve first-time defendants — typically college freshmen and sophomores between ages 18 and 20 — whose entire post-graduate trajectory (graduate school admission, professional licensing, security clearance, immigration status) hinges on whether the case can be resolved with a non-conviction outcome under the deferred-disposition framework.
The disconnect between the modest punishment range and the heavy collateral consequences is the most important fact about MIP defense. A $500 fine — even doubled to $1,000 with court costs — is not the central issue. The central issues are: the driver's license suspension that affects employment and class attendance; the conviction record that appears on background checks for graduate school, law school, medical school, professional licensure (nursing, teaching, financial services), bar admission character-and-fitness review, and federal-government security clearance review; and the immigration consequences for non-citizen students that can include inadmissibility for certain offenses. The deferred-disposition pathway under art. 45.0511, followed by a non-disclosure order under ch. 411, addresses each of these collateral concerns and is the principal record-protection strategy for first-offense MIPs.
The possession element — actual vs. constructive possession
Texas applies the same possession framework to MIP that governs drug possession — actual care, custody, control, or management. When the alcohol is not in the defendant's actual physical control, the State must prove affirmative links beyond mere proximity.
The possession element under § 106.05 is the single most contested element in MIP defense. Texas courts apply Penal Code § 1.07(a)(39) — actual care, custody, control, or management — across the possession statutes, and the Texas affirmative-links jurisprudence developed in the drug-possession context applies equally to alcohol cases. Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006), is the contemporary touchstone: where possession is constructive rather than actual, the State must establish affirmative links between the defendant and the contraband sufficient to support a rational inference of knowing possession. Mere presence in proximity to alcohol — at a party, in a vehicle where others have beverages, in a dorm room with multiple occupants — is not enough.
Garza v. State, 956 S.W.2d 99 (Tex. App.—San Antonio 1997), and State v. Sanchez, 855 S.W.2d 113 (Tex. App.—San Antonio 1993), are the workhorse Texas authorities on the alcohol-specific application of these principles. In Garza, the court considered whether a minor in a parked vehicle with open containers, surrounded by other occupants, could be convicted on the possession alone — the court applied the affirmative-links framework and found the proof insufficient on the specific facts presented. The principle generalizes: a minor at a house party is not in possession of every beverage on the premises; a minor in a vehicle is not necessarily in possession of beverages held by other occupants; a minor in a dorm room with a refrigerator is not necessarily in possession of every beverage stored there.
Affirmative-links factors recognized by Texas appellate courts include: whether the contraband was in plain view to the defendant; the defendant's proximity to and accessibility of the contraband; whether the defendant was the owner or occupant of the place where the contraband was found; whether the defendant possessed other contraband or had paraphernalia for use; the defendant's incriminating statements; whether the contraband was in an enclosed space and the defendant had access to that space; the amount of contraband found; whether the place was frequented by other people who could have placed the contraband; whether the defendant had a special connection to or relationship with the contraband. No single factor is dispositive — the totality controls. The defense develops the absence of these factors to argue that mere proximity does not establish possession.
Practical application in DFW MIP cases: at a house party with multiple guests, possession of a specific cup, can, or bottle requires officer testimony tying the alcohol to the defendant's hand, lap, or immediate physical control. Beverages on a table, on a counter, or in a shared cooler are not "possessed" by every minor in the room. A vehicle stop in which a passenger is alleged to be in possession of beverages stored in a backpack or center console requires testimony establishing the defendant's access to and control over that container. These distinctions are routinely litigated at the trial-de-novo level in justice and municipal court appeals and frequently produce dismissals or favorable plea offers when the affirmative-links record is thin.
The repeat-offender ladder — § 106.071 enhancements
A first or second MIP is a Class C misdemeanor — fine up to $500. A third or subsequent MIP escalates under § 106.071 to a fine up to $2,000 and up to 180 days in county jail. Driver's license suspensions extend with each offense, and community-service hours increase across the ladder.
Texas Alcoholic Beverage Code § 106.071 builds a graduated response to repeat minor-alcohol offenses that practitioners must understand precisely. A first or second offense — counting any combination of MIP, consumption, DUIA, purchase, and misrepresentation-of-age violations within ABC ch. 106 — is a Class C misdemeanor punishable by a fine of not less than $250 nor more than $500 plus the standard community-service and alcohol-awareness conditions. A third or subsequent offense is a more serious offense punishable by a fine of not less than $250 nor more than $2,000, confinement in jail for not more than 180 days, or both fine and confinement, in addition to the awareness-course and community-service requirements.
Community-service hours scale with the offense count: 8-12 hours on a first offense, 20-40 hours on a second, and 20-40 hours on a third under § 106.071(b)(2). The community service is generally to be served at a project that serves an educational purpose, that involves health-related work, or that promotes safe driving. Failure to complete the ordered community service is itself a basis for further sanction, including potential revocation of any deferred disposition and entry of the underlying conviction.
Driver's license suspensions under Transp. Code § 521.342 escalate in parallel: 30 days for a first ABC ch. 106 offense, 60 days for a second, and 180 days (with possible extension up to one year) for a third or subsequent. The DPS suspension is administrative and independent of any criminal sentencing — it follows automatically from the conviction or deferred adjudication notification sent by the court to DPS. An occupational driver's license under Transp. Code § 521.241 may be available to permit essential driving (work, school, healthcare) during the suspension, but eligibility depends on the defendant's broader driving history and case-specific factors.
Strategic implications of the ladder: the gap between the second and third offense is enormous — a third-offense conviction carries 180 days in county jail and a fine up to $2,000, while a second-offense conviction tops out at $500 with no jail eligibility. A defendant facing a third MIP charge therefore has a much sharper interest in deferred-disposition or dismissal outcomes than a first-time defendant — and the State and court are correspondingly less inclined to offer favorable terms on a third offense. The defense work-product on a third-offense case is substantially heavier: investigation into the prior dispositions (were they actually MIPs, or other ABC ch. 106 offenses; were they convictions or deferred adjudications; did the prior matters survive any non-disclosure or expunction); aggressive 4th Amendment challenge to the underlying stop, search, or party-entry; and earnest deferred-disposition argument on the equities for a minor whose entire post-graduate trajectory is at risk.
DUIA versus DWI — § 106.041 vs. § 49.04
Driving Under the Influence by a Minor under ABC § 106.041 requires only "any detectable amount of alcohol" in the minor's system — no 0.08 BAC and no proof of intoxication. It is a Class C misdemeanor and is structurally distinct from § 49.04 DWI, which can be charged in addition to or instead of DUIA at higher BAC levels.
Driving Under the Influence by a Minor (DUIA) under ABC § 106.041 is a Class C misdemeanor distinct from the standard § 49.04 Driving While Intoxicated charge. The DUIA offense applies to any minor — a person under 21 — who operates a motor vehicle in a public place while having any detectable amount of alcohol in the minor's system. The standard is "any detectable amount" — there is no BAC floor, no requirement to prove intoxication in the § 49.04 sense (loss of normal use of mental or physical faculties or 0.08 BAC), and no requirement to prove the minor was impaired in any specific way. A minor with a BAC of 0.02 or 0.03 — well below the 0.08 DWI threshold and likely below the level at which impairment is detectable to a trained officer — is committing the DUIA offense.
Texas DUIA is a strict-liability-style offense as to the alcohol element. A minor who lawfully consumed a sip of communion wine in church, or who took a cough medicine containing alcohol, is committing the offense if any detectable amount remains in the system at the time of operation. This is a sharper threshold than the federal "zero tolerance" framework adopted by the National Highway Safety designation for the under-21 BAC limit, and Texas has chosen to implement it through this specific statute rather than through a modification of § 49.04. The defense response in low-BAC DUIA cases often centers on the detection-equipment calibration, the chain-of-custody on any breath or blood specimen, and the field-sobriety test administration that prompted the breath-test request.
DUIA is structurally distinct from § 49.04 DWI in important ways: DUIA is a Class C misdemeanor, while DWI starts at Class B (180 days, $2,000 fine); DUIA does not require proof of intoxication, while DWI does; DUIA can be charged below the 0.08 BAC threshold, while DWI at 0.08+ is a per-se violation. A minor with a BAC of 0.10 is committing both DUIA and DWI, and the State has discretion whether to charge one, the other, or both. Many DFW prosecutors charge DUIA in addition to or in lieu of DWI when the BAC is below 0.08 because DUIA does not require the more substantial impairment proof. Other prosecutors charge DUIA alongside DWI to preserve a fallback if the DWI fails for any evidentiary reason.
Critical practitioner point: a defendant cannot be punished for both DUIA and DWI arising out of the same operation under the Texas double-jeopardy framework as applied in Crawford v. State and related authority. The State must elect or the convictions will violate double jeopardy. Driver's license consequences differ as well — the standard DWI ALR suspension under Transp. Code § 524.022 runs alongside any administrative suspension under § 521.342, and the periods may or may not run concurrently depending on the specific procedural posture. A practitioner navigating a DUIA-plus-DWI case must understand both administrative tracks, the criminal sentencing structure for each offense, and the interaction of any deferred-disposition pathway with the more substantial DWI exposure. These cases are not routine MIPs — they are full-DWI defense cases with a parallel minor-alcohol charge attached.
Defense strategies — challenging the State's case
MIP defense at trial turns on the possession element (proximity is not enough), the identification of the defendant as the person in actual or constructive possession, the lawfulness of the underlying stop or entry, and the availability of deferred disposition / dismissal pathways under art. 45.0511.
The possession-element challenge is the foundational defense theory. Where the alcohol was in actual physical control of someone other than the defendant — a friend at the party, another passenger in the vehicle, another resident in the dorm room — the State's burden of proving the affirmative-links sufficient to establish constructive possession is substantial. Defense counsel develops the absence of the standard affirmative-links factors: was the beverage in the defendant's plain view? Was the defendant's proximity such that the beverage was within reach? Was the defendant the owner or occupant of the place? Did the defendant make any incriminating statements? Were there other plausible possessors? The Texas affirmative-links jurisprudence (Garza, Evans, and progeny) supplies the framework, and a thin affirmative-links record produces either dismissal or a favorable plea offer well below the maximum statutory fine.
Fourth Amendment challenges to the underlying police contact are routinely overlooked in justice-court MIP practice but often dispositive. The stop, the entry into the residence, the search of the vehicle, the search of the backpack, the field-sobriety procedure — each step in the police encounter must satisfy 4th Amendment requirements (reasonable suspicion to stop, probable cause or exception to search, voluntariness of any consent). House-party MIP cases frequently involve police entry into a private residence on a noise or disturbance complaint, with the entry itself constituting a 4th Amendment intrusion that requires consent, exigency, or warrant. Vehicle MIP cases frequently involve stops that lack reasonable suspicion under Terry v. Ohio as applied in Texas. A successful suppression motion typically resolves the case in the defendant's favor.
Identification challenges in volume-arrest contexts (large parties, multiple occupants of a vehicle, crowded public events) can be substantial. The arresting officer may have observed beverages in the general area without specifically observing them in the defendant's actual control. Bodycam footage, witness statements from non-defendant attendees, and contemporaneous photographs frequently undermine the State's narrative that this particular minor was in actual or constructive possession of this particular beverage. The defense develops the photographic and testimonial record to show that the defendant — if observed at all — was not the person in possession of the alcohol attributed to him.
Mistake-of-age is not a defense to MIP. The minor is either under 21 or not, and an honest belief that the minor was over 21 is irrelevant to the minor's own guilt. (Mistake-of-age is, however, relevant to the seller or furnisher under § 106.03 furnishing-an-alcoholic-beverage-to-a-minor — that is the seller's defense, not the minor's.) Some practitioners confuse this point because mistake-of-age operates in the related furnishing offenses; counsel must not adopt that theory for the MIP defendant herself. The minor's defense theories are the possession-element challenge, the 4th Amendment challenge, the identification challenge, and the procedural diversion under art. 45.0511 — not mistake-of-age.
Strategic plea-negotiation posture: most first-offense MIPs in DFW resolve through deferred disposition under art. 45.0511, with the conditions being an alcohol awareness course, modest community service, and a fine in deposit. Prosecutors understand the heavy collateral consequences a conviction imposes on a college student or other young adult and are typically receptive to deferred outcomes where the underlying facts are not aggravating. Repeat offenders, defendants with simultaneous DUIA or other charges, or defendants with aggravating fact patterns (drunken disturbance, injury to self or others, involvement of a younger minor) face more difficult negotiation postures. In those cases, the defense develops the contested factual record more aggressively to leverage either a 4th Amendment suppression or a thin-affirmative-links argument into a more favorable resolution.
Deferred disposition and record clearing
Code Crim. Proc. art. 45.0511 deferred disposition is the principal record-protection pathway for first-offense MIPs. ABC § 106.10 community service in lieu of conviction is a parallel diversion. Successful completion permits non-disclosure under ch. 411 — sealing the record from most public access.
Deferred disposition under Code of Criminal Procedure art. 45.0511 is the central record-protection move for MIP defendants in Texas. The procedure: the defendant enters a plea of guilty or nolo contendere, the court defers further proceedings without entering a finding of guilt for a period not to exceed 180 days, the court imposes conditions (typically an alcohol awareness course under § 106.115, community service of 8-40 hours, and a fine in deposit), and the court dismisses the charge on successful completion. The defendant has no conviction and the case ends without a finding of guilt. The deferred-disposition procedure is widely used in DFW municipal and justice courts for first-offense MIPs and produces the cleanest available record-protection outcome short of dismissal on the merits.
Community service in lieu of conviction under ABC § 106.10 is a parallel diversion track that some courts use as the primary disposition mechanism. The statute authorizes the court to require a minor convicted of an ABC ch. 106 offense to perform community service in lieu of paying the fine, with the community service work directed toward an educational or health-related purpose. Some practitioners and courts conflate § 106.10 with art. 45.0511; they are distinct mechanisms, and the choice between them matters for record purposes. A deferred disposition under art. 45.0511 dismissed on completion is not a conviction; a § 106.10 disposition operates after a finding of guilt and produces a conviction record absent some further record-clearing step. Defense counsel should generally seek the art. 45.0511 pathway for first-offense clients where the goal is record protection.
Non-disclosure under Government Code ch. 411, subch. E-1, is the second step in the record-protection sequence. A successful art. 45.0511 deferred disposition is eligible for non-disclosure under art. 411.0735 — a record-sealing order that removes the case from public access and from most private background-check products. Government agencies retain access for certain regulatory and licensing purposes (bar admission, certain healthcare licensing, certain financial-services positions, federal security clearance, immigration adjudications), but the order substantially protects the individual's record for most employment background checks, college and graduate-school admissions, professional-licensure character-and-fitness review, and ordinary residential and employment screening. The non-disclosure application is a separate filing made after completion of the deferred-disposition conditions, generally with a small filing fee and a streamlined approval process for compliant cases.
Sequencing matters: the practitioner must (1) confirm the disposition is structured as art. 45.0511 deferred (not as a § 106.10 community service in lieu of conviction); (2) ensure all conditions are timely completed within the 180-day deferral period (alcohol awareness course completed and certificate filed, community service completed and verification filed, fine deposit complied with); (3) confirm the case is in fact dismissed on completion and the dismissal is reflected in the court records; (4) wait the statutorily required period after dismissal (which can be immediate for art. 45.0511 dismissals); and (5) file the non-disclosure petition under ch. 411. Failure at any step — a missed awareness-course deadline, an unverified community-service completion, an incorrect docketing of the disposition type — can convert a non-conviction record protection into a conviction record that materially affects the defendant's future. The procedural discipline of the deferred-disposition process is the most important deliverable a defense lawyer provides in routine MIP work.
Local DFW practice — college towns and municipal courts
MIP volume in DFW is heavily concentrated in college towns — Denton (UNT, TWU), Dallas (SMU, UTD), Arlington (UTA), and Fort Worth (TCU). Each municipal and justice court has its own deferred-disposition norms, prosecutor practice, and alcohol-awareness-course relationships.
The DFW metroplex hosts five major college-town municipal-court venues for MIP volume: Denton Municipal Court (covering UNT and TWU students), Dallas Municipal Court and University Park Municipal Court (covering SMU), Richardson Municipal Court (covering UTD), Arlington Municipal Court (covering UTA), and Fort Worth Municipal Court (covering TCU). Each court has developed its own informal docket procedures for the high-volume MIP filings generated by football weekends, fraternity and sorority events, and other campus-related contexts. Defense counsel familiar with each venue's prosecutor practice, the local approved alcohol-awareness-course providers, and the local timing for deferred-disposition setting and compliance proceedings can resolve cases substantially more efficiently than counsel new to the venue.
Justice courts also handle MIP filings outside the municipal limits — Collin County JP courts in Plano and McKinney, Denton County JP courts, Dallas County JP courts in the unincorporated areas, and Tarrant County JP courts. The procedural framework is the same — art. 45.0511 deferred disposition applies in both justice and municipal court — but the local practice (filing deadlines, hearing settings, court personnel, awareness-course referral practices) varies. A case filed in one county's JP court may have meaningfully different procedural timing than the same case filed in a neighboring city's municipal court.
College-town context drives the prosecution's plea-offer practice. Most municipal prosecutors in DFW college-town venues understand that a first-time MIP defendant is a college student whose post-graduate trajectory depends on the record-protection outcome. Standard offers in these venues typically include art. 45.0511 deferred disposition with awareness course, 8-12 hours of community service (often satisfiable through a campus volunteer placement or local nonprofit), and a fine in deposit of $200-$300 plus court costs. Aggravating factors — disturbance, injury, simultaneous DUIA, refusal of compliance — produce stiffer offers. Mitigating factors — prompt counsel retention, voluntary completion of an awareness course before the first setting, voluntary community service before the first setting — produce more favorable offers in some venues.
Practical advice for affected students: do not appear at the first setting without counsel, do not enter a plea at the first setting absent counsel's advice, and do not assume the standard "plea bargain" being offered protects the record. The art. 45.0511 deferred-disposition pathway and its non-disclosure follow-up under ch. 411 are not automatic — they require defense-counsel advocacy to structure correctly. A guilty plea entered without counsel, even with a small fine and no jail, can produce a conviction record that affects college admissions, graduate-school admissions, professional licensing, bar admission, security clearance, and immigration status. The investment in counsel for a routine first-offense MIP is small relative to the collateral consequences avoided, and the procedural discipline of a properly structured deferred disposition substantially protects the defendant's future.
When to retain counsel
Retain counsel before the first court setting. Counsel structures the deferred-disposition outcome under art. 45.0511, sequences the non-disclosure follow-up under ch. 411, addresses driver's license suspension and ODL eligibility, and protects against the collateral consequences that drive the case's importance.
Retention of defense counsel for a Texas MIP should be immediate — within days of the citation or arrest, well before the first court setting. The first-setting disposition is the dispositive procedural moment for record-protection purposes. A deferred disposition entered correctly at the first setting under art. 45.0511 is a non-conviction; a guilty plea entered without counsel at the first setting is a conviction that creates years of collateral-consequence exposure and may require expunction proceedings (which are not available for ABC ch. 106 deferred dispositions handled correctly the first time) or non-disclosure proceedings that are more limited and more expensive than the routine path.
Counsel's deliverables in a typical first-offense MIP: (1) procedural review of the citation, the underlying police contact, and the affirmative-links record for possible suppression or dismissal grounds; (2) prosecutor negotiation for art. 45.0511 deferred disposition rather than § 106.10 community service in lieu of conviction or guilty-plea conviction; (3) structuring the conditions of the deferred disposition (awareness course completion plan, community-service placement, fine deposit) to minimize burden and maximize compliance certainty; (4) post-disposition follow-up to confirm the dismissal is correctly docketed and the record reflects no conviction; (5) sequenced non-disclosure petition under ch. 411 if the case qualifies and the client wants the additional record-sealing protection; (6) advice on the driver's license suspension under Transp. Code § 521.342 and the occupational-license alternative under § 521.241 if essential driving is at issue; (7) advice on immigration consequences for non-citizen students and on professional-license character-and-fitness implications for licensing applications down the line.
For repeat-offense MIPs, the case is materially heavier and the counsel-retention urgency is correspondingly greater. A third or subsequent MIP carries jail eligibility, a fine up to $2,000, and a substantial driver's license suspension; the prosecutor's plea posture is less favorable; the record consequences are more difficult to address through deferred mechanisms; and the underlying facts often involve more substantial police contact (vehicle stops, DUIA allegations, disturbance complaints) that require more aggressive 4th Amendment work. Counsel for a repeat-offense MIP must investigate the prior dispositions, identify whether any prior cases survive non-disclosure, evaluate the 4th Amendment record in the current case, and structure the trial-versus-plea posture accordingly.
For DUIA + MIP combined charges, for MIP + DWI combined charges, or for MIP + drug-possession or paraphernalia combined charges, the matter has graduated out of routine MIP practice and into multi-charge criminal-defense work. Counsel must understand not only the MIP framework but also the parallel DWI / drug-possession / paraphernalia frameworks, their respective procedural tracks, the interaction of the various collateral consequences (driver's license suspensions from each track, separate non-disclosure or expunction pathways for each charge, parallel immigration consequences), and the overall plea-resolution strategy. These cases are not handled by Class C MIP procedural reflex — they require the full criminal-defense workup, expert engagement where the BAC or drug-quantity proof is contested, and trial-readiness planning where the State's case is genuinely contested.
