How Is an Emergency Suspension Order Challenged at a Hearing?

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An emergency suspension order under Section 11.614 of the Alcoholic Beverage Code is challenged at a hearing that TABC must set no later than the 10th day after the order is issued. The State Office of Administrative Hearings (SOAH) conducts it, and the judge decides whether to affirm, modify, or set aside the order. The test is narrow: the order is affirmed to the extent reasonable cause existed to issue it.

The timeline

Section 11.614(c) fixes the sequence when TABC issues an emergency order without a hearing:

  1. The order takes effect. It states the length of the suspension, up to 90 days.
  2. TABC sets the hearing. The commission or its administrator sets the time and place for a hearing to be held no later than the 10th day after the order was issued.
  3. SOAH hears it. The hearing is conducted by SOAH, which holds hearings at locations the Code authorizes.

The suspension runs while this happens. Ten days is short for gathering evidence, so preparation starts the day the order is served.

What the judge decides

The hearing is not a full trial of every alleged violation. Its subject is the emergency order itself, and it has three possible outcomes:

  • Affirm the order, to the extent reasonable cause existed to issue it;
  • Modify it, for example by shortening the suspension; or
  • Set it aside.

The statute’s wording, that reasonable cause “existed to issue the order,” points the hearing at what TABC had when it issued the order: its basis for concluding that continued operation would be a continuing threat to the public welfare. A business challenging the order is therefore contesting the grounds and the scope of that conclusion: whether the facts TABC relied on were accurate, whether they showed a continuing threat rather than a past event already resolved, and whether the length of the suspension fits.

The procedure that applies

Section 11.614(e) makes the proceeding a contested case under Chapter 2001 of the Government Code, the Administrative Procedure Act, so the Act’s contested-case procedures govern the hearing. Section 11.614(d) also allows TABC to adopt rules on how emergency orders are decided and appealed, including a rule letting the commission affirm, modify, or set aside SOAH’s decision. The current rules should be checked for any such procedure before the hearing.

A final order in the case can be appealed to district court under Section 11.67, like other orders suspending a permit.

A hearing outcome from 2020

In one COVID-period case, an administrative judge affirmed TABC’s emergency suspension of a McAllen nightclub, as TABC announced in a July 10, 2020 news release. The release reports the result, affirmance, which is one of the three outcomes the statute allows; it does not describe how the hearing was conducted.

The seven-day summary suspension

A suspension of up to seven days under Section 11.61(d), after a shooting, stabbing, or murder on the premises, is a separate, investigative tool with its own notice rules, and Section 11.614’s 10-day hearing provision does not describe its review. Because it is so short, the practical focus for that order is cooperating with the investigation and preparing for any longer action that may follow.

Preparing in ten days

  • Get the order and its basis. Identify exactly what conduct and conditions TABC relied on.
  • Document what has changed. Staffing, security, policies, and any corrective steps taken since the incident go to whether a continuing threat still exists.
  • Line up witnesses and records. Managers, security staff, video, incident reports, and any report made to TABC.
  • Engage counsel early. The hearing is a formal contested case on a compressed schedule.

This article is general information about Texas alcoholic beverage law, not legal advice, and reading it does not create an attorney-client relationship. Statutes and TABC rules change; confirm current requirements with the Texas Alcoholic Beverage Commission, the relevant city or county, or a licensed Texas attorney before acting.

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