Opinion

Wishnow v. Texas Alcoholic Beverage Commission

  • 757 S.W.2d 404
  • 1988 Tex. App. LEXIS 1475
  • 1988 WL 63235
Court
Court of Appeals of Texas
Filed
Jun 23, 1988
Status
Published
Author
Ellis
On the bench
Pressler, Draughn, Ellis
Cited by
12 cases
Authority
More cited than 7.3%

approving J. Square Enterprises because "the statute affirmatively requires a showing of knowledge and the Commission had made no such showing"

How later courts described this case

  • approving J. Square Enterprises because "the statute affirmatively requires a showing of knowledge and the Commission had made no such showing"
  • approving I. Square Enteprises because “the statute affirmatively requires a showing of knowledge and the Commission had made no such showing”

Written by the judges who cited it.

The opinion

ELLIS, Justice,

dissenting.

Finding myself in disagreement with the other members of the Court, I record my respectful dissent. I would sustain appellant’s first three points of error and reverse the judgment of the district court.

While I express no opinion as to the culpability of Mr. Wishnow and I do not condone the violations alleged to have been committed by him, I believe the law should more specifically inform a permittee of the conduct which is proscribed by the Code and for which his permits may be cancelled or suspended. Accordingly, I would hold that §§ 11.61(b)(7) and 104.01(2) of the Alcoholic Beverage Code are unconstitutionally vague and overbroad because they fail to define key words or phrases so as to provide a sufficiently definite warning to the permittee as to the proscribed conduct. Texas Alcoholic Beverage Commission v. Wishnow, 704 S.W.2d 425 (Tex.App.-Houston [14th Dist.] 1985, no writ). The broad interpretations given such words and phrases as “lewd”, “immoral”, “offensive to public decency”, “the exposure of person”, and “permitting a person to expose his person” make it virtually impossible for a permittee to follow with any certainty the mandates of the Code provisions. For this reason I would reverse the judgment of the district court and set aside TABC’s administrative order suspending appellant’s permits.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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