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 7871l-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 knowinglysold, served, dispensed, or delivered an alcoholic beverage to a minor in violation of this code.” (Em phasis 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 Q61.71(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 TexasAlcoholic 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 civilpenalty1 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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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 ofthe 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]npractical 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 ofthat code) that a person acts “‘knowingly’” “‘whenhe is aware of the nature of his conduct or that the circumstances exist,‘”the court concluded that none of the authorities “suggestthat ‘knowingly could include ‘should have known’” 650 S.W.2d at 532. “Areview 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 ofhis “actual knowledge”which the statutes, per L Square Entetpties require. See uLroStarr 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.’ 650s.w.2d at 531.

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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. TeuzsAlcoholic 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,3provides in subsection (b) that there is no offense ifthe 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

zSeei&o wte 4 3Seeinfm note 4

‘In line with your question, we limii this opinion to the issue of the propriety of tbe proposed rule vis avis proof ofkmwledgc. We oote that the &&al provision in section 106.03(a)was amended in 1987to make it an offense.to sell wirhcrimi14 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. TcrcuAlcoholic Bevem@ Commh, 810S.W.2d859,861 (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. “alcoholicbeverages ”to a minor.

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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 ofTexas 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

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