DAN MORALES 

.ATTORXEY GESERAL 

QBffice of tty EWmwp QBeneral 

Mate of IlLexae 

May 4,1992 

Ms. Jeannene Fox Opinion No. DM-115 

Acting Administrator 

Texas Alcoholic Beverage Commission Re: Authority of the Alcoholic Beverage 

P. 0. Box 13127 Commission to adopt a rule regarding the 

Austin, Texas 7871 l-3 127 sale of alcohol to minors (RQ-264) 

Dear Ms. Fox: 

Alcoholic Beverage Code section 106.13(a) authorizes the Alcoholic 

Beverage Commission to cancel or suspend a license or permit to sell alcoholic 

beverages “if it is found, on notice and hearing, that the licensee or permittee 

knowingly sold, served, dispensed, or delivered an alcoholic beverage to a minor in 

violation of this code.” (E m ph asis added.) Section 61.71(a)(S) provides similarly 

that the commission may suspend a licensees license if it is found that the licensee 

“btowing~ sold.. . beer to a minor.” (Emphasis added.) You ask whether the Texas 

Alcoholic Beverage Commission (hereinafter the commission) may provide by rule 

that if a licensee or permitee “sells alcohol to a minor and refuses to ask the minor 

to show proof of age by displaying an apparently valid Texas Driver’s license or an 

identification card issued by the Texas Department of Public Safety, he is presumed 

to have done so with knowledge that the person is a minor.” You say that “[t]his 

presumption unless rebutted by credible evidence [would establish] a prima facie 

case of a violation under Q 61.71(a)(S) and 0 106.13(a).” Section 531 of the code 

authorizes the commission to prescribe rules necessary to carry out the code’s 

provisions. 

In Texas Alcoholic Beverage Comm’n v. J. Square Enters.., 650 S.W.2d 531 

(Tex. App.--Dallas 1983, no writ) the court of appeals upheld a district court’s 

reversal of a commission order suspending the license of, or alternatively imposing a 

monetary civil penalty1 on, a licensee for selling or serving an alcoholic beverage to 

*Subsection (c) and (c)(l) of section 106.U permits the commission to “assess a sanction the 

. . 

comnn.won . . fmds just” if it is determined “that the violation could not reasonably have been 

prevented. . . by the exercise of due diligence. The 1. Squam Enrerprises court noted that the 

commission had, in view of the circumstances of the alleged violation, ordered either ‘that the license 

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Ms. Jeannene Fox - Page 2 (DM-115) 

a minor. ‘Ihe commission in its order had concluded, under section 106.13, that 

although “the minors themselves did not buy the beer from the respondent but 

rather sent a surrogate to do the buying for them,” the licensee’s agent “either knew 

or shou&f have known of the presence and activities of [the] two minors.” Id. at 531 

(emphasis added by the court). Noting that appeals from commission orders were 

“tested under the substantial evidence rule” and “[i]n practical result, it does not take 

much evidence to qualify as substantial,” the appeals court nevertheless upheld the 

district court’s finding “that there was a complete lack of evidence in the record 

from which one might reasonably infer that the agent for J. Square Enterprises 

actually knew that [the] minors were co naming alcohol on the premises.” Id at 

532; see also Alto. Bev. Code g 11.67 (appeal of commission order is under 

substantial evidence rule). Citing inter alia the Penal Code definition (in section 

6.03 of that code) that a person acts “‘knowingly’” “‘when he is aware of the nature of 

his conduct or that the circumstances exist,‘” the court concluded that none of the 

authorities “suggest that ‘knowingly could include ‘should have known’” 650 S.W.2d 

at 532. “A review of the hearing examiner’s findings of fact reveals no findings from 

which we could reasonably infer actual knowledge on the part of the agent for J. 

Square Enterprises.” Id 

We understand the J. Square Entqtie.s court’s construction of the 

“knowingly” requirement of the applicable statutes to mean that evidence of the 

licensee’s or permittee’s actual bwwZedge that he is selling alcoholic beverages to a 

minor is required in order for the commission to cancel or suspend a licence or 

permit thereunder. The proposed commission rule you ask about would, it appears, 

permit the commission to cancel or suspend a license or permit on the mere 

showing that the licensee or permittee 1) sold alcoholic beverages to a minor and 

2) failed to ask for specified types of identification. We do not believe such 

evidence would. in itselc constitute evidence of “actual knowledge” on the part of 

the licensee or permittee that he was selling alcoholic beverages to a minor. Nor do 

we think the characterization of the rule as a “rebuttable presumption” saves it: the 

respondent licensee’s or permittee’s failure to rebut the rule’s presumption (ie, his 

failure to show that, notwithstanding his having neglected to obtain the requisite 

identification, he did not actuahy know the buyer was a minor) would not constitute 

the evidence of his “actual knowledge” which the statutes, per L Square Entetpties 

require. See uLro Starr v. State, 734 S.W.2d 52, 53 (Tex. App.-Houston [lst Dist] 

(fccbote continued) 

of the rcJpondcnt be suspended for a period of only three days or that the respondent pay P civil 

penalty in the amollnt of $450.00.’ 650 s.w.2d at 531. 

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Ms. Jeamtene Fox - Page 3 (DM-115) 

1987, no writ) (%nowingly” in crimi~J provision, section 106.03, making it an 

offense to “knowingly* sell to a minor, requires proof that seller knew buyer was a 

minor, although such knowledge may be inferred from circmnstances; noting that 

“Wroof that the defendant ‘should have known’ the minor’s age is insufficient, even 

in a civil suit to revoke a liquor license” (citing L Square Enterprkes)); Wuhnow v. 

Teuzs Alcoholic Beverage Comm’n, 757 S.W.2d 404,409 (Tex. App.-Houston [14th 

Dist.] 1988. writ denied) (approving I. Square Enteprises because “the statute 

affirmatively requires a showing of knowledge and the Commission had made no 

such showing”). 

We note, in support of our conclusion, that section 106.03 of the Alcoholic 

Beverage Code, which makes it a crimmal offense to sell alcoholic beverages to a 

minor,3 provides in subsection (b) that there is no offense if the minor has displayed 

specified kinds of identification indicating he is not a minor. We think it would be 

inconsistent, without affirmative statutory authority, to conclude that the 

commission could, in a civil proceeding under sections 106.13(a) and 61.71(a)(5), 

transform what is an afhrmative defense under the criminal provision into a 

presumption that the licensee or permittee has violated the statute. 

Consequently, it is our opinion that the proposed commission rule you ask 

about, which would establish a “rebuttable presumption” that a licensee or permittee 

had “knowingly~ sold alcoholic beverages to a minor where it was shown that the 

zSee i&o wte 4 

3See infm note 4 

‘In line with your question, we limii this opinion to the issue of the propriety of tbe proposed 

rule vis a vis proof of kmwledgc. We oote that the &&al provision in section 106.03(a) was amended 

in 1987 to make it an offense. to sell wirh crimi14 negligwwe an ahhotic bcwmge to a minor. Acts 

l987,7Oth Leg., ch. 582,s l, at 2298. See oko Penal Code 0 6.03(d) (def+ ‘&i acgligcncc’). 

However, the civil provisions governing permit and lieease cancellations and suspensions wbicb you ask 

about, sections 61.71(a)(5) and 106X+(a) continue to use tbc word “knowingly.” See ia this regard, 

J. &I. Bewage Co. Y. Tcrcu Alcoholic Bevem@ Commh, 810 S.W.2d 859,861 (Te% App-Dallas 1991, 

no writ) (which held that under the specitic provision of section 61.71(a)(5), the ‘knowingly standard 

gowns cancellation or suspension of license for selling beer to minors, but stated in dkto that se&on 

61.71(a)(l), authorizing suspension or caaceUation for violation of a provision of this code, in 

conjumtiw with section lCUl3(a) permits ‘the cancellation or suspension of a retail dealer’s licence 

for se&g with crimii negligence any alcoholic beverage acept beer”) (emphasis in original). The 

court did not allude to the specific provisions of section 106.W(a) for caocellatioo and suspension for 

“kncwiugl~ selhg, serving, etc. “alcoholic beverages” to a minor. 

p. 591 
Ms. Jeannene Fox - Page 4 (DM-115) 

seller had failed to request proper identification, would be invalid as inconsistent 

with the applicable statutory provisions as interpreted by the courts. See ZCe& v. 

I&u@ial Accident &L, 358 S.W.2d 874 (Tex. Civ. App.-Austin 1962, writ ref d). 

SUMMARY 

A proposed rule of the Alcoholic Beverage Commission 

which would establish a “rebuttable presumption” that a licensee 

or permittee had “knowingly” sold alcoholic beverages to a 

minor where it was shown that the seller had failed to request 

proper identification, would be invalid as inconsistent with the 

applicable statutory provisions as interpreted by the courts. 

DAN MORALES 

Attorney General of Texas 

WILL PRYOR 

Fit Assistant Attorney General 

MARYKELLER 

Deputy Assistant Attorney General 

RmEAHKKs 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opinion Committee 

Prepared by Wiianr Walker 

Assistant Attorney’ General 

p. 592