How a TABC Violation Is Defended at a SOAH Hearing

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At a State Office of Administrative Hearings (SOAH) hearing, TABC usually carries the burden of proving the violation by a preponderance of the evidence, meaning more likely than not, and the judge decides only on the evidence admitted at the hearing. A defense therefore works on three fronts: showing that TABC’s evidence does not meet that standard, proving a defense the Alcoholic Beverage Code recognizes, and building a record of circumstances that should lower the sanction if a violation is found.

The standard the case is decided under

SOAH’s guide for parties in general hearings sets out the basics:

  • the party with the burden of proof must show each fact is more likely than not true;
  • the agency that referred the case usually has that burden, although the judge decides who carries it where the answer is unclear;
  • the criminal standard of beyond a reasonable doubt never applies; and
  • the judge may consider only evidence in the hearing record, and parties cannot add evidence afterward unless the judge asks for it.

That last point shapes preparation more than any other. Documents, video, training records, and witnesses that are not presented at the hearing do not exist for the decision.

Defenses written into the Code

  • Safe harbor for employee sales. Under Section 106.14, an employee’s sale to a minor or an intoxicated person is not attributed to the employer if the employer required its employees to attend a TABC-approved seller training program, the employee actually attended one, and the employer did not directly or indirectly encourage the violation. The defense is proved with records: the written training requirement, the employee’s certificate, and evidence of how the business discourages violations.
  • Grounds to relax a sale-to-minor sanction. Section 106.13(c) lets TABC impose a lesser sanction if the business establishes at the hearing that the violation could not reasonably have been prevented by the exercise of due diligence, that it was entrapped, or that an employee violated the Code without the knowledge of the licensee or permittee.
  • Criminal case outcome. Section 11.641(c) bars a penalty, including cancellation, based on a criminal prosecution that ended in acquittal or dismissal or has not reached a final adjudication. The administrative case must stand on its own evidence.

Evidence that affects the sanction

If a violation is found, Section 11.641 requires the penalty to reflect the nature and seriousness of the violation, the type of permit, aggravating or mitigating circumstances, and the business’s previous violations. It also forbids basing the penalty on the business’s sales volume, receipts, taxes paid, or financial condition. Useful evidence on this front includes the business’s compliance history, the steps it took before and after the incident, and anything showing the violation was isolated rather than part of a practice.

Before and after the hearing

Settlement with TABC and SOAH mediation remain available while the case is pending. After the hearing, the judge’s Proposal for Decision is a recommendation, and a party can file written exceptions pointing out errors in its findings or conclusions before TABC’s commission makes the final decision.

Preparing a defense

Gather every record that bears on the incident as soon as the notice arrives: seller training certificates and the written training requirement, schedules, point-of-sale data, identification-check procedures, video, and incident reports. Identify witnesses who saw the transaction or run the business’s compliance program. Because SOAH hearings follow formal procedural rules and deadlines, a license holder may choose to be represented by a lawyer who handles TABC cases, though SOAH does not require one, and no defense guarantees an outcome.

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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