                             QBfficeof tty EWmwp QBeneral
                                           Mate       of IlLexae
DAN MORALES                                       May 4,1992
 .ATTORXEY
       GESERAL


      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
      knowingly sold, served, dispensed, or delivered an alcoholic beverage to a minor in
      violation of this code.” (E mph 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 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 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&fhave 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 conaming 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.




                                             p.   590
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. “alcoholicbeverages” 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




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