Firsthand Report from the TABC Hearing

Rock Howard just testified to the Texas legislative committee reviewing the actions of the TABC board. Here’s his report:

I just attended the public hearing concerning the Texas Alcoholic Beverage Commission (TABC) and their just suspended sting program. Amazingly the situation is much worse than I anticipated.

The Texas Legislature has a Sunset Advisory Committee that reviews each state agency every 12 years to review their performance. Since 1978 the process has abolished 32 state agencies and consolidated 32 others. However this time around the Committee laid an egg. In its’ recent review of the TABC the Sunset Committee came down quite hard on them due to a raft of complaints from around the state. Despite the fact that the agency was floundering in many aspects of their work, the Committee decided that the real problem was that the TABC wasn’t doing enough to curtail DWIs in Texas.

The upshot was that the TABC received an additional injection of funds and a charge to go do something about DWIs even though the TABC Code makes no provision for operating in that sphere of law enforcement. (The TABC is charged, among other things, with insuring that bars do not serve underage or overly intoxicated patrons, but arresting public citizens has never been a part of their core operations.)

The result was an expansion of the existing Sales to Intoxicated Persons (SIP) program to include undercover sting operations in targeted bars. Apparently this plan was concocted by the TABC without legislative approval. Was this a new idea? No! It was tried once in Fairfax County, Virginia. The local police and the VABC ran a similar program in late 2002. It was curtailed quickly due to public outcry. In a sign of true dysfunction, the TABC convinced themselves that they could get a different result.

Law enforcement personal from around the state testified to support the program, but the most telling testimony was from a senior officer in Brazos County who has been running a similar program without TABC help. They use hidden cameras and focus primarily on aggressive behavior that clearly crosses the line in terms of there being a palpable risk to others. Even with these safeguards and limitations they end up releasing many patrons especially if there is a responsible and sober party available to escort the patron home. The point was made that the program must not go “over the top” since the upshot would be less drinking in local bars and more in house parties and/or remote bars which both lead to more drunk driving miles and ultimately more carnage on the road.

In contrast TABC hired high school graduates with no law enforcement training to take on the task of serving as undercover agents. They also hired many “civilians”, as they called them, to take over many day-to-day operations in order to free up formerly desk-bound agents to participate in the stings. Clearly these new field agents reveled in the chance to actually enforce the Texas Penal Code instead of the boring old TABC code which forces them to focus on bar owners, alcohol distributors and the like.

Not unsurprisingly these rookie agents were not concerned with building solid evidentiary cases and also readily ignored the operational guidelines established by the TABC. In fact many of the 2,200 SIP detainees will not be prosecutable. A number of sting victims are not only fighting the charges, but are also exploring various rights violations stemming from the arrests. The upshot is that the tab from this brief program could run into the tens or hundreds of millions.

Most outrageous is the “cowboy attitude” exhibited by TABC according to State Senator John Whitmire who co-chaired today’s hearings. He chastised TABC tactics including operations where agents dressed in SWAT uniforms and stormed targeted bars. Other committee members reported stories of patrons forced up against a wall en masse. Plenty of individuals testified about being arrested without a sobriety test or even, in one case, of being arrested after passing a Breathalyzer test. At one point TABC even stole a page from the BATF and invited local television camera crews to film their sting operations.

Speaking for the Texas LP, I made these recommendations to the committee:
— Keep the program on suspension at least until after the 2007 general legislative session.
— Reclaim any remaining TABC funds from the most recent grant.
— Restrict the TABC to enforcing TABC Code. Leave the Texas Penal Code to real law enforcement.

As of late the TABC has been acting like a wounded bear. The sting program proves that they are a palpable danger to themselves and others (to borrow a phrase from the penal code that they have been trying to enforce.) It may be too late to repair the required bond of trust and cooperation between the state’s bar owners and the TABC. Given this reality and the public relations disaster that will no doubt haunt the agency for decades due to the stings, the Sunset Advisory Committee should seriously consider abolishing the TABC and transferring their required enforcement duties to some other state agency. It may be the only way for the Sunset Advisory Committee and the Texas Legislature to save face and help the public forget that this law enforcement disaster was precipitated in part by their own actions.

However my gut feeling is that the response to all this will be an adhoc working group of carefully selected “stakeholders” that will be tasked with solving the problems of this program. The upshot will be a further infusion of funds, more hiring, a massive public relations campaign and an expanded SIP program. I expect the reinstatement of the SIP program sometime shortly after the current special session is completed. After all, as cynics have already observed, it wouldn’t do to have this program in place while the lobbyists are busy wining and dining the legislators during the special session and the $8 billion dollar projected state surplus is simply too big for the fat cat lobbyists to ignore.

Robert “Rock” Howard
Chief Volunteer Lobbyist
The Libertarian Party of Texas

Stephen Gordon

I like tasteful cigars, private property, American whiskey, fast cars, hot women, pre-bailout Jeeps, fine dining, worthwhile literature, low taxes, original music, personal privacy and self-defense rights -- but not necessarily in this order.

  1. Excellent testimony Rock. Has there been an official statement from the Friedman for Governor campaign on this? It seems like an issue where we’re definitely in alignment.

    Yours truly,

    …milk it…

  2. I wonder if it would not be in their best interests for bartenders and other workers to start calling with anonymous tips to the TABC when then note Texas Reps or their families drinking – that way they could experience this wonderful service for themselves.

  3. This whole SIP sting business brings to mind this old urban legend about a sober guy “playing drunk” to divert cops from going after his friends. I wonder if we might see people doing this at bars as a protest against this program. If enough people do that, it might even force TABC to reconsider the program as they’d be wasting time and money on sober people. Come to think of it, maybe that’s why the one guy was arrested even though he passed the Breathalyzer test.

  4. Stopping people from driving drunk from a bar isnt rocket science, but my solution doesnt make them any money so they would never do it. See they dont want to stop people from DUI, they want to catch you so they can cash in. The way to stop it is simply put 1 cop at the door with a breathalizer. When you want to leave you blow in it, if you pass then you can leave, if not then you have to stay or call a cab to come get you. Im sure someone would complain this is against their rights or you cant force me to blow in that but it would sure catch all the drunks leaving the bar and if you didnt plan on breaking the law and driving drunk it will simply only take a deep breathe and 30 extra seconds and you could be on your way.

  5. Oje: I don’t drink alcohol. I have been in bars. If somebody tried to stop me at the door with a breathalizer, I would sue them for false arrest. Believe it or not, I think the judge would side with me on constitutional grounds. This is not about making it convenient to be in slavery.

  6. Sandra/Oje — revision: put a bar bouncer on the inside of the bar as well. Leave him with the keys. You either turn in a “DD” wristband or else you breath in the breathalyzer, and get your keys.

    Even better in the populist mindset; use all the funds spent on having these agents do their nocturnal deeds of derring do, to provide for the material funds on said bars. Simple revision. Wouldn’t put most large bars out of business, and the smaller ones could use their own bartenders (no additional funds required.)

    But this would never happen; fine dollars speak too loudly.

  7. You guys are missing the point. It should not be illegal to drink and drive. It should be illegal to drive a car badly, no matter what the cause. They should not give “breathalizer” tests, they should give driving tests. If someone is drunk, and they can keep a car on the road, and pass whatever skill test is required, they should be allowed to drive. If someone can’t pass these tests, whether they are drunk or not, they should not be allowed to drive. People should not be thrown in jail for not being able to safely drive a car.

  8. Mickey — I have actually been witness to the standards highway patrol officers use for field sobriety tests. A sometimes friend of mine let me sit in while he did his qualification maintenance exams.

    The interesting thing about them, to me, is that they judge purely one’s ability to react properly, their ability to process visual information, and coordination.

    These are *proper* standards for determining if one is “driving while impaired.” It would be the same, essentially, (if more grandiosely this way) as if one were to play russian roulette with strangers walking down the road.

    It’s a very difficult area to judge properly. I don’t have a good, libertarian, answer to it.

  9. Wow Sandra, your the exact idiot that makes my plan not work. You wouldnt stop at the door for 30 seconds to show you werent drunk when it would also ensure that you wouldnt be getting on the road with any other drunks leaving the bar? No, instead you would rather be offended they are trying to keep drunks off the street and sue them for making you take a deep breathe and blow it in a tube. How would you feel if you pulled out and someone leaving that same bar drunk as a skunk plowed right into you and put you in the hospital almost killing you? I bet you would be laying in your hospital bed thinking wow that guys idea wasnt half bad, i wouldnt have almost died if they just gave quick breathalizers at the door.

  10. Interestingly several of the witnesses at the SIP hearing who had been arrested via a SIP sting complained that they were not given a field test or a breathalyzer test so that they could prove they weren’t drunk. One witness did get to take a breathalyzer test and passed it, but she was booked anyway.

  11. Rock — thanks for stepping up to the plate on this project. Where was the rest of the Texas LP (and Badnarik)?

  12. Matt Turner, our candidate for County Judge, also testified.

    Michael Badnarik and many other local members for previewing Russo’s new movie at a meeting of the Libertarian Longhorns. (I had already seen it.)
    In point of fact, Michael was promo’d as a guest speaker, so he was obligated to attend.

  13. The SIP sting is one of the more ridiculous attempts by TABC to throw their weight around in the name of public safety. As a bar owner, my staff, all of whom are TABC certified, do our upmost to keep people from driving when they are obviously intoxicated. We have even reported license plate numbers to the police if necessary. We all know people who consume large amounts of alcohol and not show any of the signs listed in the guidelines. And we all know people who are loud, beligerent and combative after 1 drink. TABC collects 14% tax on every drink a bar sells. Why don’t they just institute a 2 drink maximum per person per day. Their revenue would go away and maybe so would TABC. I do my best to operate within the law, but when the law is interrpreted differently by different agents, it’s difficult to comply. To test and possibly arrest a person who is not even behind the wheel, meaning having a designated driver, is an insult to the public.