In Re Texas Alcoholic Beverage Commission v. the State of Texas

Petition for Mandamus Denied and Memorandum Opinion filed February
24, 2026

In The

Fifteenth Court of Appeals

NO. 15-25-00151-CV

IN RE TEXAS ALCOHOLIC BEVERAGE COMMISSION

On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2023-07113

MEMORANDUM OPINION
The question here is whether information that the Texas Alcoholic Beverage
Commission (“TABC”) acquires while investigating an alcohol-related fatal car
crash is discoverable. The trial court ordered TABC to disclose information
specifically about one incident, but denied production of documents about the
agency’s general investigatory policies and procedures. For the following reasons,
we deny mandamus relief.
BACKGROUND
On November 15, 2022, Niguel Hayward died in a head-on collision with
Eduardo Moreno after Moreno allegedly consumed alcoholic beverages at
Sandbaggers Pub and Molly’s Pub. After the crash, TABC peace officers conducted
an investigation of both establishments under its TRACE program (“Target
Responsibility for Alcohol-Connected Emergencies”) to determine the source of any
alcohol and whether it may have been served irresponsibly.1
Real parties in interest Ashlie Dominguez, Orlando Hayward, and Reyna
Hayward, individually and as the representatives of Hayward’s estate, sued both
establishments. On May 6, 2024, the Plaintiffs served TABC with a deposition on
written questions and a subpoena duces tecum seeking documents regarding the
TRACE investigation and TABC’s policies and procedures governing them. TABC
objected by email, and later in its response to the Plaintiffs’ motion to compel, that
the documents requested were “confidential or protected by law under Section 5.48
of the Texas Alcoholic Beverage Code and/or Section 30.006(c) of the Texas Civil
Practice & Remedies Code” and that the requests were “overly broad and unduly
burdensome.” The district court granted the Plaintiffs’ motion in part, ordering
TABC to produce all TRACE documents specifically relating to the two pubs during
a limited time period that included the incident “as long as there is not an open
prosecution of Defendant Moreno.” But the court denied Plaintiff’s motion to
compel production of TABC’s policies, procedures, checklists, training manuals, or
other documents relating to TRACE investigations generally.
TABC filed a petition for writ of mandamus and a motion to stay the district
court’s order. We requested responses to the mandamus petition and motion to stay,
neither of which the Plaintiffs have filed to date. But we granted the stay to preserve

1
See TEX. ALCO. BEV. CODE § 5.36.

2
our jurisdiction, and now issue this opinion without oral argument.2

DISCUSSION
“Mandamus relief is available if the relator establishes a clear abuse of
discretion for which there is no adequate appellate remedy.” 3 Only the first
requirement is at issue here, as it is well-settled that “when the trial court orders
production of privileged information, the party claiming the privilege has no
adequate appellate remedy.”4
In accordance with the general standards, absent any findings of fact and
conclusions of law we imply all findings and conclusions necessary to support the
trial court’s judgment if they are supported by the record.5 This rule applies in
mandamus proceedings too.6 Because Rule 52.4 provides that a response to a
petition “is not mandatory,” the Plaintiffs’ failure to file a response brief after we
requested it “does not act as a default on factual or legal issues on mandamus
petitions.”7
Here, TABC asserted privilege under two statutes:
• Section 5.48 of the Texas Alcoholic Beverage Code provides: “The
private records of a permittee, licensee, or other person that are required

2
See TEX. R. APP. P. 52.8(a), (b).
3
In re AutoZoners, LLC, 694 S.W.3d 219, 223 (Tex. 2024).
4
In re Silver, 540 S.W.3d 530, 538 (Tex. 2018).
5
See Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 337 (Tex. 2009);
Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003).
6
See, e.g., In re Lynd Co., 195 S.W.3d 682, 686 (Tex. 2006); Worford v. Stamper, 801
S.W.2d 108, 109 (Tex.1990) (per curiam) (holding that findings should be implied in favor of an
order modifying child support). The rule is otherwise if the order was expressly based on a legal
error. See In re Ayad, 655 S.W.3d 285, 289 n.3 (Tex. 2022) (“Because the order was expressly
based on a legal error, we do not imply that the trial court made findings in support of its order on
these issues.”).
7
In re Freidman, 2025 WL 2087209, at *2 (Tex. App.—Austin July 25, 2025, orig.
proceeding).

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or obtained by [TABC] or its agents, in connection with an investigation
or otherwise, are privileged unless introduced in evidence in a hearing
before the commission or before a court in this state or the United States.”8
Subsection (a) of that statute defines “private records” as “all records of a
permittee, licensee, or other person other than the name, proposed
location, and type of permit or license sought in an application for an
original or renewal permit or license, or in a periodic report relating to the
importation, distribution, or sale of alcoholic beverages required by the
commission to be regularly filed by a permittee or licensee.”9

• Section 30.006 of the Texas Civil Practice and Remedies Code provides
in subsection (c) that “a court in a civil action may not order discovery
from a nonparty law enforcement agency” if “the release of the
information ... would interfere with the detection, investigation, or
prosecution of criminal acts.”10 But subsection (d) of that statute provides
that “the court may order discovery from a nonparty law enforcement
agency … if the court determines, after in camera inspection, that (1) the
discovery sought is relevant; and (2) there is a specific need for the
discovery.”11

Although TABC raised both statutes in the trial court, the trial court did not
indicate which statute it applied, and TABC’s petition is based entirely on § 5.48.
Normally, an alternative ground supporting a trial court order that it is not addressed
would require us to affirm.12 But TABC’s argument that § 5.48 is a mandatory

8
TEX. ALCO. BEV. CODE § 5.48(b) (emphasis added).
9
Id. § 5.48(a).
10
TEX. CIV. PRAC. & REM. CODE § 30.006(c) (emphasis added).
11
Id. § 30.006(d) (emphasis added).
12
See, e.g., Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995) (“When the trial
court does not specify the basis for its summary judgment, the appealing party must show it is
error to base it on any ground asserted in the motion. The appellate court must affirm the summary
judgment if any one of the movant’s theories has merit.” (internal citations omitted)); Woolfolk v.
Devore, 2022 WL 1420528, at *2 (Tex. App.—Fort Worth May 5, 2022, no pet.) (“When the trial
court’s judgment can rest upon more than one independent ground, the complaining party must
assign error to each ground, or the judgment will be affirmed on the ground against which no
complaint is made.”).

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blanket bar to production, if charitably construed, impliedly argues that § 5.48
overrules any other rule, including § 30.006. 13 We disagree.
First, § 5.48 applies only to “private records,” a term defined in the statute to
mean “all records of a permittee, licensee, or other person” other than administrative
data like applications for a license, name and location of the licensee, and periodic
reports required by the agency. 14 TRACE investigative reports are records of the
agency, not of a “permittee, licensee, or other person.” Whether § 5.48 even applies
to TRACE reports is a matter of first impression, as no court opinion has ever
addressed the statute since it was adopted in 1937. 15 Perhaps, 88 years ago, the
Legislature intended for § 5.48 to apply to all agency records, but that is not what
the text actually says. As a textual matter, § 5.48 does not appear to be broad enough
to apply here.
Second, while both statutes would apply to production of some TABC
documents—and thus may arguably conflict—it is “our duty to harmonize statutes”
if possible.16 Here, § 5.48 provides that TABC records “are privileged unless
introduced in evidence in a hearing before the commission or before a court in this
state or the United States.”17 Since TABC alone has custody of its TRACE
investigations, § 5.48 appears to contemplate instances in which TABC actively
participates as a party in administrative or judicial proceedings and either voluntarily
introduces the records or is ordered to do so. By contrast, § 30.006(d) expressly
states that it “does not apply to an action in which a law enforcement agency is a

13
See Bertucci v. Watkins, 709 S.W.3d 534, 541–42 (Tex. 2025) (“Courts should hesitate to
resolve cases based on procedural defects and instead endeavor to resolve cases on the merits.”
(internal citations omitted)).
14
TEX. ALCO. BEV. CODE § 5.48(a) (emphasis added).
15
See Act of June 8, 1937, 45th Leg., R.S., ch. 448, 1937 TEX. GEN. LAWS 1053, 1063.
16
Paxton v. Annunciation House, Inc., 719 S.W.3d 555, 578 (Tex. 2025).
17
TEX. ALCO. BEV. CODE § 5.48(b) (emphasis added).

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party.” Since TABC is not a party here, § 30.006 would appear to apply.
Finally, even if we were to hold that the two statutes conflict, we would reach
the same result. It is hard to say which of these statutes is the general one and which
is the more specific. Section 5.48 is more specific with regard to whose documents
are privileged since it applies only to the TABC, while § 30.006 applies to all law
enforcement agencies. But § 30.006 is far more specific with respect to which
documents are privileged since it limits the privilege to information that could
interfere with criminal prosecutions and at the same time provides an exception in
case of “specific need for the discovery”; by contrast, TABC argues that § 5.48 gives
it an absolute privilege to produce nothing at all. Since § 30.006 is the much more
recent enactment and manifestly intended to apply to all law enforcement agencies,
to the extent of any conflict we would apply that statute.18 Because TABC does not
address § 30.006(d) in its petition or support it with documents material to that issue,
we deny the requested relief.

CONCLUSION
We do not hold as a matter of law that § 5.48 never applies unless TABC
appears as a party. But in the circumstances here—where another statute does apply
and TABC’s petition does not address it—we hold that the trial court did not clearly
abuse its discretion by complying with the in camera inspection required by § 30.006
and the limited order to compel stated in its order. We thus deny TABC’s petition.

18
TEX. GOV’T CODE § 311.026(a)–(b) (“If a general provision conflicts with a special or local
provision, the provisions shall be construed, if possible, so that effect is given to both. If the
conflict between the general provision and the special or local provision is irreconcilable, the
special or local provision prevails as an exception to the general provision, unless the general
provision is the later enactment and the manifest intent is that the general provision prevail.”).

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/s/ Scott A. Brister
Scott A. Brister
Chief Justice

Before Chief Justice Brister and Justices Field and Farris.

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