The Texas legislature has passed a law making an adult who serves or provides alcohol to a minor under the age of 18 liable for damages caused by that minor in certain circumstances. Reversing a long-standing trend in Texas to not hold social hosts liable if their guests become intoxicated, the Texas legislature has amended the dram shop statute to recognize this as a cause of action. The legislature’s dramatic move probably came in response to Texas Supreme Court cases which relied upon the legislative history and policy to repeatedly hold that social hosts in Texas have no common law liability to others.

The State of Texas briefly recognized common law liability against “dram shops” for damages resulting from their negligence in serving alcoholic beverages to one who they know or should know was intoxicated when two cases were submitted together to the Texas Supreme Court, El Chico v. Poole and Joleemo, Inc. v. Evans, and decided on June 3, 1987, 732 S.W.2d 306 (Tex.1987). The liquor licensed establishments in those cases argued that, at common law, a purveyor of alcoholic beverages was not liable for damages sustained by third-persons resulting from a patron’s intoxication. The Court held that modern times required an analysis that disregarded an absolute rule of non-liability in favor of common law liability as a matter of public policy.

While the Texas Supreme Court was considering El Chico and Joleemo, the Texas legislature was drafting changes to the Texas Alcoholic Beverage Code which would effectively abrogate the Court’s holding. A mere 8 days after the Court’s opinion, on June 11, 1987, the legislature’s amendments to §2.02-.03 became effective, creating statutory liability only for dram shops. The Texas Alcoholic Beverage Code (TABC) §2.03 specifically reflected:

The TABC applies to “providers” of alcoholic beverages. The statute defines a “provider”as “a person who sells or serves an alcoholic beverage under authority of a license or permit issued under the terms of this code or who otherwise sells an alcoholic beverage to an individual.” Thus, the code does not apply to social hosts unless the host sells alcoholic beverages to his or her guests. For instance, if a host set up a “cash bar” at a party, then the host would be a “provider” and the statute would govern any liability that arose from those sales. Otherwise, the code simply did not apply to social hosts.

The Texas Supreme Court confronted the issue of social host liability more than once since the amendments to §2.02, and consistently refused to recognize it. The Court held that social hosts have no common law liability with regard to damages caused by an adult guest who becomes intoxicated even if the host knew that the guest would be driving. See Graff v. Beard, 858 S.W.2d 918 (Tex. 1993). The Court reasoned that the Texas legislature considered imposing social host liability, and declined to do so, when it passed the amendments to §2.02. The guest is in a far better position to know the amount of alcohol he or she has consumed, his or her state of sobriety, the consequential risk he or she poses to the public, and to control his or her consumption.

The Texas Supreme Court continued to not find social host liability when presented with guests who were minors between the ages of 18 and 21. The Court relied upon the language of §2.02 which states that it is the exclusive remedy for the providing an alcoholic beverage to a person 18 years of age or older. Smith v. Merritt, 940 S.W.2d 602 (Tex. 1997). The Court also pointed out that an 18 year old is responsible for their own behavior and any resulting civil liability.

Four years later, the Texas Supreme Court took up the issue of social host liability with respect to minors under the age of 18 in the case of Reeder. Reeder v. Daniel, 61 S.W.3d 359 (Tex. 2001). Andrew Daniel came to the Reeder home when the Reeders’ teenage son, Tyler, was hosting a party. Tyler’s seventeen-year-old friend, Jeff Lawson, brought cases of beer to the party which were available to drink. Lawson struck and injured Daniel after he had consumed about twelve beers. Daniel sued Lawson for the assault and the Reeders for negligence per se for making alcohol available to a minor which is prohibited by criminal statute.

The Texas Supreme Court reversed the appellate court and rendered that Daniel take nothing in his suit. The Court explained that violation of a criminal statute does not always create a civil cause of action, and in this instance it would not because the TABC did not recognize social host liability. Thus, the Court was similarly precluded in recognizing such a cause of action for making alcohol available to guests under the age of 18.

The Texas legislature responded again with amendments to TABC §2.02 creating a cause of action whereby an adult can be liable for the damages caused by an intoxicated minor under the age of 18. The amendments, effective September 1, 2005, are as follows:

Since this statute does not require the sale of the alcoholic beverage, the amendment creates social host liability for the limited circumstance of an adult providing alcohol to a minor under the age of 18. Interestingly, the statute does not create a cause of action for providing alcohol to a guest between the ages of 18 and 21, even though that guest would still be underage to drink.

Also, the statute exempts parents of the minor from liability. So, applying the new amendments to the situation presented in the Reeder case, the Reeders would have faced a statutory cause of action. The intoxicated seventeen-year-old guest in the Reeder case was Lawson, who was not the Reeders’ son. If the facts were slightly different and the minor whose intoxication proximately caused the injuries had been Tyler Reeder, the parents would not face a cause of action in their individual capacities.

So far there have not been any cases decided under the new TABC §2.02 amendments. However, how the statute gets applied to situations involving intoxicate minors should prove interesting.