| (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.
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| 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 |
