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RULE §34.1General Provisions

(a) This rule relates to §§11.61, 11.64, 11.641, 104.01, and 106.13 of the Alcoholic Beverage Code.

(b) Definitions. When used in this chapter, the following words and have the following meanings unless the context clearly indicates otherwise:

  (1) Assist--as used in Alcoholic Beverage Code §§61.71(a)(11) and 106.09(a), the word "assist" shall not be construed to mean that a person under 18 years of age assists in selling, serving, preparing, handling, or dispensing alcoholic beverages merely by being employed to work on or about a premises where alcoholic beverages are sold or served, as long as the person under 18 years of age does not have a direct and immediate connection with any particular sale or service of such beverages.

  (2) The Code--the Texas Alcoholic Beverage Code.

  (3) Lewd and vulgar entertainment or acts--Any sexual offenses contained in the Texas Penal Code, Chapter 21, or any public indecency offenses contained in the Texas Penal Code, Chapter 43.

  (4) Narcotic--Any substance defined in the Texas Controlled Substances Act, §481.002(5), (6), (7), or (26).

  (5) Written--any method of writing by any method of transmission, including hand-written or typed and transmitted by hand delivery, mail, e-mail, fax, or through an internet-based management system directly accessible by the recipient.

(c) Authorized commission personnel may settle an administrative action initiated by the commission.

(d) Written warnings. A written warning is an administrative notice issued by a representative of the commission to the license or permit holder documenting a violation of the Code or commission rules and:

  (1) may be issued by authorized commission personnel for any violation if the person issuing the written warning determines it to be an effective deterrent from further violations of the Code or commission rules;

  (2) may be used as an aggravating circumstance for purposes of determining the appropriate sanction under §34.2 or §34.10; of this title and

  (3) is subject to the rights and procedures of a contested case under the Administrative Procedure Act.

(e) Any case alleging a sale to a minor or intoxicated person in violation of Code §§11.61(b)(14), 61.71(a)(6) or 101.63 in which the unlawful sale or service directly or indirectly caused death or serious bodily injury shall be referred directly to the commission's legal services division by authorized commission personnel without an offer of settlement or compromise provided to the licensee/permittee. For purposes of this section, "serious bodily injury" has the meaning assigned by Tex. Penal Code §1.07(a)(46).

(f) Each suspension of a license or permit shall run for consecutive days. A person assessed a suspension by the commission may be provided with an opportunity to pay a civil penalty in lieu of a suspension as provided by §11.64 of the Code. The commission may, in its discretion, agree to divide an imposed sanction between civil penalties and suspension.

(g) A subsequent violation of the same Code provision or rule will result in a higher sanction if:

  (1) the person has been given written notice of the prior violation and the subsequent violation is:

    (A) a health, safety, and welfare violation and occurs within 36 months of the prior violation; or

    (B) a regulatory violation with a base penalty of $1,000 and occurs within 24 months of the prior violation; or

  (2) the subsequent violation involves covert investigative activities.

(h) For a violation of the Code or rules that is not listed in §34.2, of this title, the penalty or sanction must be approved by a division director prior to entering into a settlement.

(i) A person authorized to enter into a settlement under this section may make a written recommendation to the executive director or the executive director's designee for a deviation from sanctions in §34.2 of this title to account for aggravating or mitigating circumstances. The executive director or the executive director's designee must approve a recommendation to deviate from §34.2 of this title before a settlement reflecting the deviation is offered to the licensee/permittee.

Source Note: The provisions of this §34.1 adopted to be effective August 21, 2008, 33 TexReg 6583; amended to be effective May 25, 2009, 34 TexReg 3262; amended to be effective June 6, 2022, 47 TexReg 3242

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