holding TABC provision making it illegal to sell beer to persons “showing evidence of intoxication” was unconstitutionally vague because symptoms like slurred speech and bloodshot eyes may appear in intoxicated as well as non-intoxicated persons
How later courts described this case
- holding TABC provision making it illegal to sell beer to persons “showing evidence of intoxication” was unconstitutionally vague because symptoms like slurred speech and bloodshot eyes may appear in intoxicated as well as non-intoxicated persons
- stating that evidence of intoxication may include, among other things, slurred speech, bloodshot eyes, odor of alcohol on the person or breath, and unsteady balance
- noting that evidence of intoxication may include, among other things, slurred speech, bloodshot eyes, odor of alcohol, unsteady balance, and staggered gait
- noting that evidence of intoxication may include, among other things, bloodshot eyes, odor of alcohol, unsteady balance, and staggered gait
Written by the judges who cited it.
The opinion
TEAGUE, Judge,
concurring.
I wholeheartedly agree with the conclusion that Judge Miller forms in the opinion he writes for the Court, that “Our inability to answer these questions,, [which are set out in the opinion], except with a guess, demonstrates clearly that Section 61.-71(a)(6) is unconstitutionally vague.”
I write because the Legislature is now in session, and believe that they should be expressly informed of the action this Court has taken. I also believe that it would be very simple for that body of our government to reword the statute so that a properly worded statute, which unquestionably is needed to protect some of our citizens, will be available not only to law enforcement personnel, but to the large number of persons who sell, serve, or deliver beer to other persons to be consumed on the spot.
I also write because I believe that there is a world of difference in meaning between the phrase “showing evidence of intoxication” and the phrases “obviously intoxicated” or “visibly intoxicated” or “actually or apparently under the influence of liquor.” It is the failure of the State and Presiding Judge Onion, and those judges who join his dissenting opinion, to see the obvious distinction in meaning that the terms facially have that causes their positions to be unacceptable. As Judge Miller has so cogently and clearly demonstrated, and pointed out for the Court, for one to make the determination that another person is “showing evidence of intoxication” can amount only to a mere guess that such person has consumed “one too many beers.” Without question, to uphold such a statute as we have here would permit an overzealous member of law enforcement to unlawfully invade the privacy of some of our citizens. As to the other phrases, however, I find that facially they are sufficiently clear to put one person on notice that another person has consumed one too many beers.
I find that when the Legislature enacted Section 61.71 of the Alcoholic Beverage Code, its intent was to put wait persons on notice that they must take negative action, in the form of refusing to serve a person “one more beer,” if they observe that that person has had “one too many beers.” I also find that the Legislature intended that if persons who sell, serve, or deliver “one more beer” to a person who has had “one *144 too many beers,” if caught, they had to suffer the consequences for not taking negative action. However, it is apparent to me that when the statute was drafted, the drafters failed to peruse like statutes of other States. Had they done so, I believe that they would have drafted a statute that would have passed muster, rather than drafting the above statute, which, on its face, is obviously unconstitutional.