Texas Attorney General Opinion: DM-115 Page: 1 of 4
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@ffice of the ttornep Qenerat
Mtate of TIexas
DAN MORALES May 4, 1992
Ms. Jeannene Fox Opinion No. DM-115
Texas Alcoholic Beverage Commission Re: Authority of the Alcoholic Beverage
P. O. Box 13127 Commission to adopt a rule regarding the
Austin, Texas 78711-3127 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." (Emphasis added.) Section 61.71(a)(5) provides similarly
that the commission may suspend a licensees license if it is found that the licensee
"knowingly 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 61.71(a)(5) and 106.13(a)." Section 5.31 of the code
authorizes the commission to prescribe rules necessary to carry out the code's
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 penalty on, a licensee for selling or serving an alcoholic beverage to
1Subsection (c) and (c)(1) of section 106.13 permits the commission to "assess a sanction the
commission. . . finds just" if it is determined "that the violation could not reasonably have been
prevented.., by the exercise of due diligence." The J. Square Enterprises court noted that the
commission had, in view of the circumstances of the alleged violation, ordered either "that the license
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-115, text, May 4, 1992; (https://texashistory.unt.edu/ark:/67531/metapth273924/m1/1/: accessed April 25, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.