Texas Attorney General Opinion: DM-115 Page: 3 of 4
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Ms. Jeannene Fox - Page 3
1987, no writ) ("knowingly" in criminal provision, section 106.03, making it an
offense to "knowingly"z sell to a minor, requires proof that seller knew buyer was a
minor, although such knowledge may be inferred from circumstances; noting that
proofof that the defendant 'should have known' the minor's age is insufficient, even
in a civil suit to revoke a liquor license" (citing J. Square Enterprises)); Wishnow v.
Texas Alcoholic Beverage Comm'n, 757 S.W.2d 404, 409 (Tex. App.-Houston [14th
Dist] 1988, writ denied) (approving I. Square Enterprises because "the statute
affirmatively requires a showing of knowledge and the Commission had made no
We note, in support of our conclusion, that section 106.03 of the Alcoholic
Beverage Code, which makes it a criminal 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 affirmative defense under the criminal provision into a
presume ption 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"4 sold alcoholic beverages to a minor where it was shown that the
2See infr note 4
3See infr note 4
4In line with your question, we limit this opinion to the issue of the propriety of the proposed
rule vis a vis proof of knowledge. We note that the criminal provision in section 106.03(a) was amended
in 1987 to make it an offense to sell with criminal negligence an alcoholic beverage to a minor. Acts
1987, 70th Leg., ch. 582, 1, at 2298. See also Penal Code 6.03(d) (defining 'criminal negligence').
However, the civil provisions governing permit and license cancellations and suspensions which you ask
about, sections 61.71(a)(5) and 106.13(a) continue to use the word "knowingly." See in this regard,
J. & J. Beverge Co. v. Texas Alcoholic Beverage Comm'n, 810 S.W.2d 859, 861 (Tex. App-Dallas 1991,
no writ) (which held that under the specific provision of section 61.71(a)(5), the "knowingly" standard
governs cancellation or suspension of license for selling beer to minors, but stated in dicta that section
61.71(a)(1), authorizing suspension or cancellation for violation of a provision of this code, in
conjunction with section 106.03(a) permits "the cancellation or suspension of a retail dealer's licence
for selling with criminal negligence any alcoholic beverage except beer") (emphasis in original). The
court did not allude to the specific provisions of section 106.13(a) for cancellation and suspension for
"knowingly" selling, serving, etc. "alcoholic beverages" to a minor.
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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/m1/3/: accessed April 23, 2019), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.