COVID-19 and Texas Open Container Laws

The COVID-19 pandemic presents unprecedented challenges for the hospitality industry in Texas. Many restaurants are surviving on takeout and delivery business alone as their dining rooms remain closed or reopen under restrictions.

To help restaurants cope, Gov. Greg Abbott issued a temporary waiver on March 18 that allows licensed establishments to “deliver alcoholic beverages with food purchases to patrons, including beer, wine, and mixed drinks.”

Unfortunately, there was some confusion over the precise scope of the governor’s waiver. To that end, the Texas Alcoholic Beverage Commission later issued a series of clarifications. To briefly summarize the TABC’s orders:

• A restaurant that holds a mixed beverage permit may offer delivery or customer pick-up of alcohol if it has been “forced to end-in dine services” by the state or local government due to the COVID-19 pandemic.
• An eligible restaurant may deliver orders “that include alcohol” using independent contractors or third-party delivery apps.
• Alcohol must be “accompanied by a food order” prepared on the restaurant’s premises.
• The alcohol must be “delivered in the original container that was sealed by the manufacturer of the beverage,” and that container cannot be larger than 375 milliliters.

While the governor’s initial statement suggested “mixed drinks” could be sold for delivery, the actual TABC rules prohibit restaurants from mixing their own cocktails for delivery or customer takeout. However, restaurants could sell the other ingredients necessary to make a mixed drink, so long as the alcohol itself remains in a manufacturer-sealed container.

A Mixed Drink in a “To-Go” Cup Is Still an “Open Container” Under Texas Law

So what would happen if a restaurant, misunderstanding the TABC rules, sells a mixed cocktail with a takeout order? In theory, if the customer were stopped by a police officer on the way home, that customer could face an open-container charge. (The restaurant could also be fined or lose their mixed beverage license.)

Despite the current emergency, the open container law remains in effect. This means it is illegal in Texas for anyone to operate a motor vehicle with an open container of alcohol anywhere in the passenger area.

By definition, an “open container” is a “receptacle that contains any amount of alcoholic beverage and that is open, that has been opened, that has a broken seal or the contents of which are partially removed.”

Under this definition, a mixed drink in a plastic to-go cup would qualify as an open container, even if the customer does not actually take a sip while behind the wheel. Remember, the violation here is having the open container in the car at all, not intoxication. Of course, if you are driving drunk with an open container in your car, that is a separate offense under the Texas Penal Code.

If you need legal advice on Texas open container laws, or are facing actual criminal charges, you should work with a qualified criminal defense attorney. Contact the Law Offices of Tad Nelson & Associates if you need to speak with someone right away in Houston, Galveston or League City.