Texas Alcoholic Beverage Commission Code
R
eference Tool
For Local Communities

Using the TABC Code to Further Align Public Policies to Protect and Improve the Public’s Health, Safety and Welfare.

Compiled as a public service
by
Rio Grande Valley Committee for Good Government

The following provides examples of various statutory provisions of the Texas Alcoholic Beverage (the “TABC”) Code that serve the public policy interests of the State of Texas in protecting the public’s health, safety and welfare.

The purpose of highlighting these limited statutory provisions is a potential resource for local officials and community leaders in considering, advocating, crafting and enacting local ordinances to advance and complement these aligned public policy interests that have been endorsed by the Texas Legislature.

 

Question No. 1: Does the TABC Code include provisions intended to promote the welfare, health, peace, temperance, and safety of the public?
Answer: Yes

1.1  The overarching public policy reason for the TABC Code is expressed by the State of Texas as the “protection of the welfare, health, peace, temperance, and safety of the people of the state.”  TABC Code at 1.03.  The State of Texas has made clear that the TABC Code “shall be liberally construed to accomplish this purpose.” Id.

1.2  The TABC has implemented this public policy through numerous legislatively enacted enforcement statutes. For example, the TABC can refuse to issue an original or renewal permit and can also cancel a permit for the sale of alcohol if “the place or manner in which the applicant may conduct his business warrants the refusal of a permit based on the general welfare, health, peace, morals and safety of the people and on the public sense of decency.”  TABC Code at 11.46(a)(8); see also id. at 11.61(b)(7).

1.3  The TABC further prohibits the operation of a business selling alcohol to the extent it is creating a “common nuisance.” TABC Code at 10.70. A “common nuisance” includes maintaining a premise in violation of the TABC Code and/or its “purposes.” TABC Code at 10.70.  It further encompasses a long list of deleterious situations relating to, among many other things, organized criminal activity, controlled substances, gambling, prostitution, obscene material and performances, weapons, and assault.  Id.  Finally, the TABC has established multiple laws against the provision of alcoholic beverage at certain times and to certain persons in further protection of the public’s health, safety and welfare. TABC Code at 11.61(b); see also id. at 61.71(a)(7).

1.4  Municipalities can analogously use these statutes in addressing resident concerns regarding a wide variety of public nuisances, including those occurring at businesses that impinge upon the residents’ quality of life and tarnish the community’s reputation and economic health.

Question No. 2: Is the promotion of economic development a longstanding priority of the TABC Code?
Answer: Yes

2.1  As an example, the TABC, in its 2013-2017 Strategic Plan, listed as a priority goal to “provide an attractive economic climate for current and emerging industries that fosters economic opportunity, job creation, capital investment and infrastructure development.” TABC Strategic Plan, Fiscal Years 2013-2017.  The Legislature reasons that this is accomplished “by ensuring compliance with statutory schemes and creating an atmosphere and business climate supporting fair competition and lawful trade practices.” The priorities and statutes of the TABC were adopted to improve the business climate by fostering a peaceful and stable environment attractive to consumers, tourists, convention attendees, residents and business owners alike.

2.2  In enacting ordinances that promote a stable and legal business environment, local communities can directly improve the local economy, attracting both new businesses, residents, tourists and conventioneers.

Question No. 3:  Does the TABC Code include prohibitions against excessive noise and other breaches of the peace?
Answer: Yes

3.1  The TABC may cancel or suspend a permit where “the permittee maintains a noisy … establishment.” TABC Code at 11.61(b)(9). A permittee’s permit can further be cancelled if he fails to “promptly report to the commission a breach of the peace occurring on his premises.” TABC Code at 11.61(b)(21).

3.2  The Texas Legislature has made clear that the peaceful conduct of commercial businesses, which do not impede upon others’ enjoyment of their property, is a priority in protecting the public welfare. Local communities that are proactive in working against commercial events, performances and gatherings that are characterized by loud and noxious noise improve the quality of life of the residents.

Question No. 4: Does the TABC Code legislatively protect against lewd, indecent and/or immoral behavior?
Answer: Yes

4.1  For example, the TABC can refuse to issue a permit to a person if the premises for which the permit is sought has been “operated, used, or frequented for a purpose or in a manner that is lewd, immoral or offensive to public decency.”  TABC Code at 11.46(a)(15); see also id. at 104.01(a)(1).  The TABC can also cancel or suspend a permit where the permittee “maintains a . . . lewd [] or disorderly . . . establishment.”  TABC Code at 11.61(b)(9).  The TABC Code has specifically listed certain acts that are considered to fall within this standard, including “the use of. . . vulgar, or indecent language, or permitting its use . . . the exposure of a person or permitting a person to expose himself or herself . . . permitting lewd or vulgar entertainment or acts . . . . . . permitting solicitations of persons for immoral . . . purposes.” TABC Code at 104.01(a).  The TABC Code relatedly expressly prohibits the “possess or display on the licensed premises a card, calendar, placard, picture, or handbill that is immoral, indecent, lewd, or profane.”  TABC Code at 101.64. Obscene lyrics and performances as well as lewd activity such as exhibitionism and public sexual acts, would fall within the ambit of this statutory prohibition.

4.2  A municipality that is viewed as too lenient on commercial businesses purveying indecent or obscene performances faces the risk of a significant drain on tourism and convention dollars resulting from a perception that the community is unsafe or inappropriate for families and corporate employees attending conventions.

Question No. 5: Does the TABC Code contain statutory prohibitions against criminal activity?
Answer: Yes.

5.1  The TABC can refuse to issue a permit to a person in certain situations following “a shooting, stabbing, or other violent act, or as a result of an offense involving drugs, prostitution, or trafficking of persons.”  TABC Code at 11.46(c). A permit can also be cancelled if the permittee “knowingly allowed a person to possess a firearm in a building on the licensed premises.”  TABC Code at 11.61(e).

5.2   An interest of the State, as codified in the TABC Code, is to protect against criminal activity in operating businesses, which is dangerous to the public, fosters unfair business practices, and harms the reputation of the community.

Question No. 6:  Does the TABC Code address the public policy against public drunkenness?
Answer: Yes.

6.1  The TABC Code precludes the sale or delivery of an alcoholic beverage to an intoxicated person.  TABC Code at 11.61(b)(14); see also TABC Code at 61.71(a)(6).

6.2  The public policy of the State of Texas is to avoid public drunkenness, which directly leads to drunken driving, injury, death, and the preying by criminals upon the intoxicated person.

Question No. 7: Does the TABC Code have a public policy of protecting minors from engaging in illegal activity?
Answer: Yes.

7.1  The TABC Code and other state laws of course contain multiple provisions policing the sale or possession of alcohol minors.  See TABC Code at 106.

7.2   Municipalities that address underage drinking head-on advances numerous public policy concerns, including reducing drunk driving and associated man- slaughter, brain damage due to excessive alcohol consumption, increased drug use, as well as the preying by criminals upon intoxicated and incapacitated minors.

Question No. 8: Does the TABC Code anticipate involvement by local officials in the permitting process?
Answer: Yes.

8.1   As just one example, when a person applies for a permit, the TABC may give due consideration to the recommendations of the mayor, the city council member or commissioner who represents the area in question, chief of police, city marshal, or city attorney of the city or town in which the premises sought to be licensed are located.  TABC Code at 11.41. The TABC Code specifically references a protest by these and certain other officials to the issuance of a permit.  Id.

8.2  This specific provision highlights the positive involvement of local officials and community leaders in developing analogous and complementary ordinances to further the public interest and welfare as endorsed and enacted by the State Legislature.

Question No. 9: Can a citizen file a complaint regarding a violation of the TABC?
Answer: Yes.

9.1  A citizen can file a complaint with the TABC based on any violation of its rules, which includes, as discussed herein, nuisances, lewd behavior, and criminal activity.  Information regarding how to make complaints, which can be done online, can be found at:

https://www.tabc.state.tx.us/enforcement/complain_about_a_location.asp

9.2  Local communities can of course improve their websites to facilitate user-friendly methods for citizens to register complaints of nuisances caused by local businesses, large events, and individuals.

Question No. 10: Can anonymous complaints regarding a violation of the TABC be kept confidential?
Answer: Yes.

10.1  The email address of the complainant must be kept confidential by the TABC.  See https://www.tabc.state.tx.us/enforcement/complain_about_a_location.asp.  However, other information contained in the complaint is subject to being disclosed following an open record request pursuant to the Texas Public Information Act.  A complainant is not required to provide any identifying information to the TABC other than his or her email address, which, again, is kept confidential.

Question No. 11: Can the TABC Code be a useful resource in the implementation of ordinances to protect the welfare, health, peace, temperance, and safety of individual municipalities?
Answer: Yes.

11.1  As shown above, the TABC Code provides direct and helpful guidance regarding the public policy of the State of Texas in protecting certain legislatively-endorsed public interests.  These statutory issues have been legally approved and constitute the enforceable law of the State of Texas.

11.2   Whether for adopting limitations on noise, the preying by criminals against minors, obscene language and performances, lewd behavior, or in developing tailored conditions for the permitting and regulation of special events involving loud music and crowds (and associated provisions regarding costs, reimbursement, and bonds), the TABC Code can guide local communities in protecting the public. Analogously using these legally sound statutory provisions and procedures as a resource to develop and approve local ordinances that address and advance the same public policy concerns can work to directly improve the quality of life in our communities.