Chapter 8 — Who Is (and Isn’t) a Provider

Statutory Definition

Tex. Alco. Bev. Code § 2.01(1):

“Provider” means 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.

Key Case Law

1. Foundational Decisions

  • Borneman v. Steak & Ale of Tex., Inc., 22 S.W.3d 411 (Tex. 2000): The Dram Shop Act is the exclusive remedy against providers for adult claims.
  • F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007): Liability is premised on the provider’s act of serving, not the consumer’s act of drinking.

Social Host and Non-Provider Cases

  • Graff v. Beard, 858 S.W.2d 918 (Tex. 1993): No social host liability for serving adults.
  • Triplex Communications, Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995): Radio station promoter not liable; promoters and advertisers are not “providers.”

Commentary and Analysis

2. Permit Holders Are Providers. The entity that holds the TABC license or permit for the premises is the provider for sales under that authority. Plaintiffs must identify and sue the correct permit holder.

3. Owners, Officers, and Investors Are Not Providers by Status Alone. Individuals associated with the business are not providers unless they personally served alcohol or unless veil-piercing applies (rare).

4. Employees and Servers. Individual bartenders and servers are not typically sued. Their acts of service are imputed to the employer. See 20801, Inc. v. Parker, 249 S.W.3d 392, 398–99 (Tex. 2008).

5. Landlords and Lessors. Absent direct permit operation or active involvement in sales, landlords and property owners are not providers.

6. Promoters, DJs, Media, and Contractors. Promoters, DJs, security personnel, or media sponsors are not providers unless they directly controlled alcohol sales under the permit or held their own license. Triplex makes clear that promotion or advertising alone is not a basis for liability.

7. Unlicensed Sellers. Entities selling alcohol without a permit (e.g., “all you can drink” events, drink tickets, cover charges for “open bars”) may still qualify as statutory providers, because they “otherwise sell” alcohol under § 2.01(1).

8. Social Hosts and Minors. No liability for social hosts serving adults (Graff). However, § 2.02(c) imposes liability on adults (21+) who knowingly serve alcohol to minors under 18, even outside commercial contexts.

9. Misidentification of Defendant. Suing the wrong entity (e.g., naming the bar’s DBA instead of the actual permit holder LLC) is fatal if limitations run. Defense counsel should immediately obtain TABC records to confirm permit history.

Defense Strategy and Practice Checklist

10. Strategic Actions

  • Confirm Provider Identity: Obtain permit history and records from the TABC as soon as suit is filed.
  • Eliminate Non-Providers: Move to dismiss owners, officers, promoters, DJs, landlords, and investors unless they personally sold or served alcohol.
  • Demand Proof: Through discovery, confirm which entity held the permit on the date of service; demand POS data, contracts, merchant records.

Motion Practice

  • Dispositive Motions: Use Rule 91a motions and summary judgment to target and dismiss claims against non-providers.
  • Sever and Protect: Where multiple defendants are sued, consider motions to sever to prevent prejudice or “guilt by association.”