Fourth Court of Appeals San Antonio, Texas OPINION
No. 04-24-00761-CV
Rafael CISNEROS and Sofia Nanez, Appellants
v.
Humberto LEAL, Yvonne Leal, and Samuel Rene Ramos, Appellees
From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2022CVK001182D1 Honorable Joe Lopez, Judge Presiding
Opinion by: Lori Massey Brissette, Justice
Sitting: Irene Rios, Justice Lori Massey Brissette, Justice Adrian A. Spears II, Justice
Delivered and Filed: March 11, 2026
REVERSED AND REMANDED
This case involves the question of whether Texas recognizes a claim for social host liability
for adults who make alcohol available to minors in their home. After reviewing the record and the
parties’ briefing and considering oral argument, we hold Texas does recognize a cause of action
for damages proximately caused by a minor’s intoxication when an adult knowingly allows a
minor to be served alcohol in their home. Accordingly, we reverse the trial court’s order granting 04-24-00761-CV
appellees’ motions for summary judgment and remand for further proceedings consistent with this
opinion.
BACKGROUND
Jesus Lerma Montemayor, a minor, died on September 10, 2021 after he got into a car
accident while driving with Rafael Cisneros and other minor passengers in his car. Cisneros
suffered serious injuries and his arm was amputated. Cisneros and his mother Sofia Nanez sued
four adult individuals for damages under Texas Alcoholic Beverage Code subsection 2.02(c),
alleging (1) the four adults had knowingly allowed alcohol to be provided at their homes to minors
including the driver Lerma and (2) the minors’ intoxication proximately caused injuries and other
damages to Cisneros and Nanez. See TEX. ALCO. BEV. CODE § 2.02(c).
In their first amended petition, Cisneros and Nanez allege that before the car accident, the
driver Lerma had been consuming alcoholic beverages with another minor, Faaron Garcia, at the
adult Juan Jose Garcia’s home. They allege that Lerma and Faaron Garcia next met at the home of
the adults Humberto and Yvonne Leal, where they again imbibed. According to Cisneros and
Nanez, Lerma then arrived at the home of the adult Samuel Rene Ramos to meet the minor Derek
Lee Ramos. The petition alleges Samuel Rene Ramos hosted a party which also included alcohol.
The minors allegedly became intoxicated and later got into the car accident.
Cisneros and Nanez sued all of the aforementioned adult parents: Juan Jose Garcia,
Humberto and Yvonne Leal, and Samuel Rene Ramos. The Leals filed a traditional motion for
summary judgment, as did Ramos. Cisneros and Nanez filed a response in opposition to the
motions and a hearing was held. The trial court then granted the motions for summary judgment,
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dismissing appellants’ claims against the Leals and Ramos. 1 No depositions were taken prior to
the trial court’s ruling. Cisneros and Nanez timely appealed.
First, Cisneros and Nanez argue that social hosts can be liable for damages proximately
caused by the intoxication of a minor if they knowingly allowed minors to be provided with alcohol
in their home, an issue of first impression. See TEX. ALCO. BEV. CODE § 2.02(c). Second, Cisneros
and Nanez argue that the movant-appellees did not meet their burden to demonstrate that there is
no genuine issue of material fact as to one or more essential element of Cisneros and Nanez’s
claims.
I. WHETHER APPELLANTS’ SOCIAL-HOST LIABILITY CLAIMS ARE RECOGNIZED IN TEXAS
Ramos argues that Texas does not recognize such a civil cause of action, citing Reeder v.
Daniel, 61 S.W.3d 359, 365 (Tex. 2001), and that Texas Alcoholic Beverage Code section 2.02(c),
enacted after Reeder, does not create such a claim. While the Leals state that section 2.02
“ostensibly” affords such a cause of action, they note that there are no appellate decisions applying
or interpreting the statute. We note that it is generally accepted by scholars that subsection 2.02(c)
does create social-host liability in the context of a minor’s intoxication. 2 But the Leals are correct
that no Texas appellate court has interpreted or applied the subsection since its enactment in 2005.
Before the addition of subsection 2.02(c), the Texas Supreme Court explicitly deferred to
the Legislature when it declined to recognize social-host liability in Texas, concluding the Texas
Alcoholic Beverage Code “precludes us from recognizing a social-host civil cause of action for
1 Juan Jose Garcia is not a party to this appeal. The trial court severed the claims at issue in this appeal, i.e. appellants’ claims against the Leals and Ramos, into a new cause. Also, all third-party claims were dismissed. Therefore, the trial court’s order granting the Leals and Ramos’s motions for summary judgment is a final, appealable order. 2 See, e.g., Elizabeth A. Ryan, “Can I Start You Off with Some Drinks?”: An Analysis of Commercial Alcohol Provider Liability in Texas, 39 Tex. Tech L. Rev. 45, 49–50 (2006); Daniel D. Horowitz III et. al., Can Friends Still Let Friends Drive Drunk? A Look at Social-host liability in Texas, 76 Tex. B.J. 419, 421–22 (2013); Wayne Schiess, Graphics in Briefs: Why Not?, 92 The Advoc. (Texas) 8, 13 (2020).
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making alcohol available to guests under age eighteen.” Reeder, 61 S.W.3d at 360–61; see also
Graff v. Beard, 858 S.W.2d 918 (Tex. 1993) (holding no social-host liability for serving
intoxicated adult guests); Smith v. Merritt, 940 S.W.2d 602, 605 (Tex. 1996) (holding no social-
host liability for serving guests from ages eighteen to twenty). The Reeder court also recognized
that in originally enacting Chapter 2, known as the Dram Shop Act, the Legislature had taken
“comprehensive action” in regulating alcoholic beverage consumption” and “declined to include
social hosts in the Dram Shop Act’s civil liability scheme.” Id. at 364–65.
But, after these decisions, in 2005, the Texas Legislature passed House Bill 2868, entitled
“Civil Liability for Provision of Alcohol to a Minor,” which took effect September 1, 2005. See
79th Leg., R.S., ch. 643, § 1, 2005 (codified at TEX. ALCO. BEV. CODE § 2.02(c)). The bill amended
section 2.02 by creating the new subsection (c). Section 2.02, entitled “Causes of Action,” states
in full:
(a) This chapter does not affect the right of any person to bring a common law cause of action against any individual whose consumption of an alcoholic beverage allegedly resulted in causing the person bringing the suit to suffer personal injury or property damage. (b) Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter and may be made the basis of a revocation proceeding under Section 6.01(b) of this code upon proof that: (1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and (2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered. (c) An adult 21 years of age or older is liable for damages proximately caused by the intoxication of a minor under the age of 18 if: (1) the adult is not: (A) the minor’s parent, guardian, or spouse; or (B) an adult in whose custody the minor has been committed by a court; and
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(2) the adult knowingly: (A) served or provided to the minor any of the alcoholic beverages that contributed to the minor’s intoxication; or (B) allowed the minor to be served or provided any of the alcoholic beverages that contributed to the minor’s intoxication on the premises owned or leased by the adult. TEX. ALCO. BEV. CODE § 2.02.
We begin with the statute’s text because it is the best indication of the Legislature’s intent.
See Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 901 (Tex. 2010). “A fundamental constraint on
the courts’ role in statutory interpretation is that the Legislature enacts the laws of the state and the
courts must find their intent in that language and not elsewhere.” Liberty Mut. Ins. Co. v. Adcock,
412 S.W.3d 492, 493 (Tex. 2013). Only where the plain meaning is ambiguous or would lead to
an absurd result will we go beyond the statute itself. See Silguero v. CSL Plasma, Inc., 579 S.W.3d
53, 59 (Tex. 2019).
We apply a de novo standard of review when analyzing the construction of a statute.
Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 571 (Tex. App.—Fort Worth 2019, pet. denied);
see ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017). Further, “[w]e []
presume that the legislature chose a statute’s language with care, intentionally including each word
chosen, and omitting words purposefully.” Harris Cnty. Appraisal Dist. v. IQ Life Scis. Corp., 612
S.W.3d 93, 97 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). In so doing, we “must
consider the act as a whole and not just as single phrases, clauses, or sentences.” Id.; see
Fredericksburg Care Co. v. Perez, 461 S.W.3d 513, 520 (Tex. 2015). We also must give effect to
each provision of a statute so that none is rendered meaningless or mere surplusage. TIC Energy
& Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016).
Applying these rules, we recognize that the plain language of subsection 2.02(c) makes
clear that Texas recognizes a potential social-host liability claim for damages against adults who
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knowingly allow minors to be provided with alcohol. Subsection 2.02(c) is not limited to
commercial contexts and, by its terms, applies when any adult allows alcohol to be provided in
their home. See TEX. ALCO. BEV. CODE § 2.02(c)(2)(b) (stating an adult can be liable for damages
if the adult “allowed the minor to be served or provided any of the alcoholic beverages that
contributed to the minor’s intoxication on the premises owned or leased by the adult.”) (emphasis
added).
The broader statutory context reinforces the subsection’s plain meaning. See IQ Life Scis.
Corp., 612 S.W.3d at 97 (stating we “must consider the act as a whole and not just as single
phrases, clauses, or sentences”); Hegar v. Health Care Serv. Corp., 652 S.W.3d 39, 43 (Tex. 2022)
(“Words that in isolation are amenable to two textually permissible interpretations are often not
ambiguous in context.”). Nothing in subsection 2.02(c) limits liability to “providers” of alcohol,
which by statute are only those who “sell[] or serve[] an alcoholic beverage under authority of a
license or permit issued under the terms of this code or who otherwise sell[] an alcoholic beverage
to an individual.” TEX. ALCO. BEV. CODE § 2.01(1). Instead, under subsection 2.02(c) any “adult
21 years of age or older” can be liable if they “served,” “provided,” or “allowed the minor to be
served or provided.” Id. § 2.02(c); see IQ Life Scis. Corp., 612 S.W.3d at 97. Further, while
subsection 2.02(b) uses the word “provided,” section 2.01(2) of the same Code explains that
“provision” includes, but is not limited to, the sale or service of an alcoholic beverage. TEX. ALCO.
BEV. CODE §§ 2.01, 2.02 (emphasis added). And, notably, subsection 2.02(c) does not include the
word “sold” or any variation thereof, as it does when referring to licensed providers’ liability in
subsection 2.02(b). TEX. ALCO. BEV. CODE § 2.02. We must presume the Legislature omitted the
word “sold” purposefully, creating a separate section for those persons who are not licensed
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providers but who knowingly make alcohol available to minors in their home. See IQ Life Scis.
Corp., 612 S.W.3d at 97.
While this supports our construction of the statute, we can go on. Specifically, the
subsection’s exclusion of adults who are “the minor’s parent, guardian, or spouse” would be
meaningless or absurd if only commercial providers could be liable under subsection 2.02(c).
Given that meaning, the statute would—for some unknown reason—be focused on excluding from
liability those commercial providers who chose to serve their own child as a patron at their
establishment. That would be a uniquely niche focus for the Texas Legislature. See Tex. Mun.
Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 199 (Tex. 2007) (stating “we should
not interpret one portion of a statute so as to render another portion of the statute meaningless”)
(citing TEX. GOV’T CODE § 311.021); Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830,
844 (Tex. 2018) (“We interpret statutes according to the language the Legislature used . . . unless
the plain meaning yields absurd or nonsensical results.”); Martin, 498 S.W.3d at 74.
Furthermore, Subsection 2.02(b) describes actions of a commercial alcohol provider that
“may be made the basis of a revocation proceeding under Section 6.01(b)[.]” TEX. ALCO. BEV.
CODE § 2.02(b). In contrast, subsection 2.02(c) does not state that liable adults may be subject to
such a revocation proceeding. Id. § 2.02(c). These revocation proceedings are for commercial
providers of alcohol. See id. § 6.01(b). We must presume the Legislature intentionally omitted the
possibility of revocation proceedings for those liable under subsection 2.02(c) because that
provision is not focused on licensed providers. See IQ Life Scis. Corp., 612 S.W.3d at 97.
We also note that the Alcoholic Beverage Code does not merely regulate commercial
providers of alcohol. For instance, it creates a criminal offense for any “person” who “purchases
an alcoholic beverage for or gives an alcoholic beverage to a minor.” See TEX. ALCO. BEV. CODE
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§106.03. And, rather than limiting itself to the regulation of licensed alcohol providers, the Code
states, “This code is an exercise of the police power of the state for the protection of the welfare,
health, peace, temperance, and safety of the people of the state. It shall be liberally construed to
accomplish this purpose.” TEX. ALCO. BEV. CODE §1.03.
Finally, the addition of subsection 2.02(c) would be largely meaningless and superfluous
if the subsection only imposed liability on commercial providers, since commercial providers are
already liable for injuries caused by serving or providing alcohol to “obviously intoxicated” minors
under subsection 2.02(b). And, elsewhere the Code already imposes stiff consequences and
penalties on commercial providers who provide alcohol to minors. See id. §§ 2.02(b), 106.06,
106.03, & 106.13; Risner v. Harris Cty. Republican Party, 444 S.W.3d 327, 343 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (“[W]hen interpreting an amendment to a statute, we presume
that the legislature intends to change the law.”).
After the Reeder court explained that it is the Legislature’s role to create social-host
liability for adults who make alcohol available to minors, the Legislature appears to have answered
the call by enacting subsection 2.02(c) to create such liability. See 61 S.W.3d at 360–61; Brown v.
City of Houston, 660 S.W.3d 749, 755 (Tex. 2023) (“[S]tatutory history—the statutes repealed or
amended by the statute under consideration”—is relevant to statutory interpretation because this
history “form[s] part of the context of the statute[.]”); see also Am. Pearl Group, L.L.C. v. Nat’l
Payment Sys., L.L.C., 715 S.W.3d 383, 388 (Tex. 2025), reh’g dismissed (July 11, 2025)
(distinguishing statutory history from legislative history).
We conclude the statute’s plain meaning is unambiguous and controls. Social hosts can be
liable under subsection 2.02(c) for damages proximately caused by the intoxication of a minor
when they knowingly serve, provide, or allow a minor to be served or provided alcoholic beverages
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on premises leased or owned by the host. See Silguero, 579 S.W.3d at 59. Because Cisneros and
Nanez’s claims against appellees are enforceable causes of action, we sustain Cisneros and
Nanez’s first issue. We must next determine whether fact issues preclude summary judgment here.
II. TRADITIONAL SUMMARY JUDGMENT
Having recognized the claims asserted, we must turn to whether the movant-appellees met
their burden for a traditional summary judgment. Cisneros and Nanez argue the trial court erred in
granting the motions for summary judgment because the Leals and Ramos did not meet their
burden to demonstrate that there is no genuine issue of material fact as to one or more essential
element of Cisneros and Nanez’s claims. Specifically, appellants argue there is a question of fact
as to (1) whether the Leals and Ramos allowed alcohol to be provided to the minors; and (2)
whether the minor Lerma’s intoxication proximately caused Cisneros and Nanez’s damages.
A. Standard of Review
The grant of summary judgment is reviewed de novo. Nall v. Plunkett, 404 S.W.3d 552,
555 (Tex. 2013) (per curium). In our de novo review, “we take as true all evidence favorable to
the nonmovant, and we indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor.” KMS Retail Rowlett, LP v. City of Rowlett, 593 S.W.3d 175, 181 (Tex. 2019)
(citation omitted). We credit evidence favorable to the nonmovant if reasonable jurors could, and
we disregard contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). “Texas law recognizes summary judgment to be a harsh remedy
requiring strict construction.” UpCurve Energy Partners, LLC v. Muench, 661 S.W.3d 907, 918
(Tex. App.—El Paso 2023, no pet.).
To prevail on a traditional motion for summary judgment, the movant has the burden to
demonstrate that there is no genuine issue of material fact as to one or more essential element of
the plaintiff’s cause of action and that he is entitled to judgment as a matter of law. Provident Life
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& Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003) (analyzing TEX. R. CIV. P. 166a(c)). In
other words, the movant must “conclusively establish[] that at least one element of plaintiff’s cause
of action does not exist.” Zess v. Funke, 956 S.W.2d 92, 93 (Tex. App.—San Antonio 1997, no
writ).
For traditional summary judgment motions, courts “never shift the burden of proof to the
non-movant unless and until the movant has establish[ed] his entitlement to a summary judgment
. . . by conclusively proving all essential elements of his cause of action or defense as a matter of
law.” Draughon v. Johnson, 631 S.W.3d 81, 87–88 (Tex. 2021) (quoting Casso v. Brand, 776
S.W.2d 551, 556 (Tex. 1989)) (internal quotation marks omitted). “[T]he non-movant’s failure to
answer or respond cannot supply by default the summary judgment proof necessary to establish
the movant’s right.” Id. (quoting City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979)).
“The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could
differ in their conclusions in light of all the summary-judgment evidence.” Curry v. Harris Cnty.
Appraisal Dist., 434 S.W.3d 815, 826 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007)).
B. Provision of Alcohol to the Minors
The only relevant summary judgment evidence is the parties’ competing affidavits. 3
Ramos, Humberto Leal, and Yvonne Leal all filed affidavits stating that they “did not authorize
3 Competing affidavits can create a genuine issue of material fact precluding summary judgment. See, e.g., Reyes v. De Alba, No. 13-16-00620-CV, 2018 WL 5289541, at *3 (Tex. App.—Corpus Christi–Edinburg Oct. 25, 2018, no pet.); Massey v. Royall, No. 14-00-00177-CV, 2001 WL 1136025, at *4 (Tex. App.—Houston [14th Dist.] Sept. 27, 2001, pet. denied); Dawkins v. First Am. Title Co., LLC, No. 07-12-00437-CV, 2014 WL 4536288, at *4 (Tex. App.— Amarillo Sept. 11, 2014, no pet.); Wheeler v. Yettie Kersting Mem'l Hosp., 866 S.W.2d 32, 49 (Tex. App.—Houston [1st Dist.] 1993, no writ); see also Morse v. Black, No. 03-08-00785-CV, 2009 WL 2476686, at *3 (Tex. App.— Austin Aug. 12, 2009, no pet.). But, we need not address the issue of whether the nonmovants’ affidavits did so here, for the reasons set forth herein.
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anyone to give” alcohol to Cisneros, Lerma, or Eric Bryan Heard (the minor driver of the other
vehicle involved in the accident). All three appellees’ affidavits also assert that they did not
“invite” Cisneros, Lerma, or Heard to their homes. Humberto and Yvonne Leal’s affidavits further
state: “When I found out that uninvited persons arrived at my house on the night before the alleged
incident for which I am being sued, my [spouse] and I had those persons removed from my
property.” Ramos also testified by affidavit that he did not “provide” alcohol to Cisneros, Lerma,
or Heard.
The Leals and Ramos argued to the trial court that Cisneros and Nanez’s affidavits to the
contrary were merely conclusory and failed to show a basis for personal knowledge, rendering the
affidavits insufficient to controvert the Leals’ and Ramos’s affidavits. They argue that there is
therefore no genuine fact issue as to whether the elements of subsection 2.02(c)(2) are satisfied,
and summary judgment was proper. However, the Leals and Ramos filed traditional motions for
summary judgment, and they first bear the burden to show there is no issue of material fact. See
Knott, 128 S.W.3d at 216. The burden of proof “never” shifts to the nonmovant “unless and until
the movant has establish[ed] his entitlement to a summary judgment . . . by conclusively proving
all essential elements of his cause of action or defense as a matter of law.” Draughon, 631 S.W.3d
at 87–88 (quoting Casso, 776 S.W.2d at 556) (internal quotation marks omitted). “[T]he non-
movant’s failure to answer or respond cannot supply by default the summary judgment proof
necessary to establish the movant’s right.” Id. (quoting Clear Creek Basin Auth., 589 S.W.2d at
678). Therefore, we need not analyze whether Cisneros and Nanez’s affidavits were deficient
unless we conclude that the Leals and Ramos’s affidavits conclusively establish they did not
knowingly provide alcohol to the minors or allow them to be provided alcohol. See id.; TEX. ALCO.
BEV. CODE § 2.02(c)(2); TEX. R. APP. P. 47.1. As explained below, we do not so conclude.
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Whereas the statute states an adult can be liable if the adult “allowed the minor to be served
or provided” alcohol, see TEX. ALCO. BEV. CODE § 2.02(c)(2) (emphasis added), all three
appellees’ affidavits merely assert that they “did not authorize anyone to give” alcohol to the
minors. Chapter 2 of the Texas Alcoholic Beverage Code does not define “allowed.” But, when
giving that term its common, ordinary meaning, we must conclude the affidavits fail to address
this aspect of the statute. See Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014)
(when interpreting a statute, undefined terms are given their ordinary meaning unless the statute
clearly indicates otherwise).
To determine a term’s common, ordinary meaning, we may look to “a wide variety of
sources, including dictionary definitions . . . .” Id. Dictionaries consistently define “allow” to
include passive acquiescence. See, e.g., Allow, Merriam-Webster, https://www.merriam-
webster.com/dictionary/allow (last visited February 12, 2026) (“to fail to restrain or prevent”);
Allow, Black’s Law Dictionary (12th ed. 2024), available at Westlaw (“To put no obstacle in the
way of; to suffer to exist or occur; to tolerate”). In contrast, dictionaries consistently define
“authorize” as an active approval. See, e.g., Authorize, Merriam-Webster, https://www.merriam-
webster.com/dictionary/authorize (last visited February 12, 2026) (“to endorse, empower, justify,
or permit by or as if by some recognized or proper authority”); Authorize, Black’s Law Dictionary
(12th ed. 2024), available at Westlaw (“To formally approve; to sanction”).
Thus, even though the movant-appellees’ affidavits allege that they did not authorize
anyone to give alcohol to the driver Lerma or the other minors, their affidavits do not conclusively
establish that they did not allow the minors to be provided alcohol. See TEX. ALCO. BEV. CODE §
2.02(c)(2); Draughon, 631 S.W.3d at 87–88. To be liable under subsection 2.02(c), an adult need
not give a verbal approval, a thumbs up, or even a nod. If he knows minors are drinking alcohol
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on his property, and passively tolerates it, he can be liable for resulting damages. See id. § 2.02(c).
Likewise, an adult can be liable under subsection 2.02(c) even if the adult does not personally
invite the specific drinking minors to their homes, as long as the adult knowingly acquiesces to the
consumption of alcohol by the minors at their home. See id. Therefore, appellees’ testimony by
affidavit that they did not invite Cisneros, Lerma, or Heard to their homes does not foreclose
liability under subsection 2.02(c).
Finally, the assertion in the Leals’s affidavits that they had “uninvited persons” removed
from their property does not conclusively establish that they did not allow the minors in question
to be provided alcohol at their home that night. The affidavits do not clearly articulate which
“persons” were allegedly removed. They do not specifically assert whether Cisneros, Lerma,
and/or Heard were present in their home, how long they were present, whether they were the ones
ultimately removed, and whether they had been allowed to drink prior to being removed.
The Leals’s unclear, indirect, and self-serving affidavits lack sufficient factual support to
conclusively negate liability. See Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex. 1997)
(“A self-serving affidavit from an interested party must be clear, positive, direct, otherwise
credible, free from contradictions and inconsistencies, and readily controvertible to support
summary judgment.”); NB 2021 GP, LLC v. FM 725 LLC, No. 04-23-00117-CV, 2024 WL
2947274, at *6 (Tex. App.—San Antonio June 12, 2024, no pet.) (“An affidavit that states only
legal or factual conclusions without providing factual support is not proper summary-judgment
evidence because it is not credible or susceptible to being readily controverted.”).
Taking as true all evidence favorable to the nonmovants, indulging every reasonable
inference and resolving any doubts in the nonmovants’ favor, we cannot find that the Leals and
Ramos met their burden on their traditional motions for summary judgment and, accordingly, we
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sustain Cisneros and Nanez’s second issue. See KMS Retail, 593 S.W.3d at 181; Mack Trucks, 206
S.W.3d at 582; Draughon, 631 S.W.3d at 87–88.
C. Proximate Causation
Subsection 2.02(c) states that an adult can be liable only for those damages proximately
caused by the intoxication of a minor under the age of eighteen. TEX. ALCO. BEV. CODE § 2.02(c).
In their third issue, Cisneros and Nanez argue the trial court erred in granting the motions for
summary judgment because there is a fact issue as to whether the minor Lerma’s intoxication
proximately caused Cisneros and Nanez’s damages. The Leals and Ramos counter that there is no
fact issue regarding proximate causation because Heard, the minor driver of the other vehicle in
the accident, was intoxicated, 4 making his negligence and intoxication a new, intervening, and
independent cause of appellants’ injuries as a matter of law.
The Leals and Ramos point to the police report they attached to their summary judgment
motions. The report states that both Lerma’s and Heard’s vehicles failed to control their speed.
However, the report does not conclude that either driver was wholly at fault. Instead, the report
contains the investigator’s opinion scoring both drivers’ vehicles with thirty-six contributing
factors. The report gives Lerma’s vehicle—“Unit 1”—a total contributing-factor score of 116, and
it gives Heard’s vehicle—“Unit 2”—a total score of 86. The report also states that one of the
vehicles failed to drive in a single lane. The investigator’s narrative identifies this vehicle as “Unit
2,” but on the same page in the “Charges” section the report states that it was “Unit 1” that failed
to drive in a single lane.
We must determine whether the Leals and Ramos met their burden to conclusively negate
proximate causation.
4 Heard had a blood alcohol content level of .091.
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1. Applicable Law
“Proximate cause has two components: cause in fact and foreseeability.” Univ. of Tex. M.D.
Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 518 (Tex. 2019). Cause in fact is established
by showing “the negligent act or omission was a substantial factor in bringing about injury, without
which the harm would not have occurred.” Bush v. Columbia Med. Ctr. of Arlington Subsidiary,
L.P., 714 S.W.3d 536, 544 (Tex. 2025) (quoting Doe v. Boys Clubs of Greater Dall., Inc., 907
S.W.2d 472, 477 (Tex. 1995)) (internal quotation marks omitted). Foreseeability, on the other
hand, requires “the actor [to] have reasonably anticipated the dangers that his negligent conduct
created for others.” McKenzie, 578 S.W.3d at 519. The danger that must be reasonably anticipated
is only the “general danger, not the exact sequence of events that produced the harm[.]” Id.
The cause must be “unbroken by any new and independent cause.” Tex. Campaign for the
Env’t v. Partners Dewatering Int’l, LLC, 485 S.W.3d 184, 197 (Tex. App.—Corpus Christi–
Edinburg 2016, no pet.). A “superseding,” or “new and independent” cause is not an affirmative
defense, but instead, is an element to be considered by the jury in determining whether proximate
causation exists. Stanfield v. Neubaum, 494 S.W.3d 90, 97–98 n.6 (Tex. 2016). “A new and
independent cause of an occurrence is the act or omission of a separate and independent agent, not
reasonably foreseeable, that destroys the causal connection, if any, between the act or omission
inquired about and the occurrence in question.” Columbia Rio Grande Healthcare, L.P. v. Hawley,
284 S.W.3d 851, 856 (Tex. 2009); see Stanfield, 494 S.W.3d at 98 (explaining harm not reasonably
foreseeable if “nothing short of prophetic ken could have anticipated the happening of the
combination of events” (quoting Tex. & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S.W. 162, 164
(1896))). In contrast, a merely “concurring cause” is one that is reasonably foreseeable and
“‘concurs with the continuing and co-operating original negligence in working the injury,’ leaving
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the causal connection between the defendant’s negligence and the plaintiff’s harm intact.”
Stanfield, 494 S.W.3d at 98 (quoting Gulf, C. & S.F. Ry. Co. v. Ballew, 66 S.W.2d 659, 661 (Tex.
Comm’n App. 1933, holding approved)). “Foreseeability is a highly fact-specific inquiry[.]” Id.
“With regard to foreseeability, we know by common knowledge that alcohol distorts
perception, slows reaction, and impairs motor skills while operation of an automobile requires
clear perception, quick reaction, and adept motor skills. The tragic relationship between
intoxicated drivers and fatal accidents is unquestionable.” Dagley v. Thompson, 156 S.W.3d 589,
592 (Tex. App.—Tyler 2003, pet. denied) (citation omitted). “Driver error is a commonly
understood and foreseeable consequence of serving intoxicants to an already obviously intoxicated
person.” Biaggi v. Patrizio Rest. Inc., 149 S.W.3d 300, 306 n.7 (Tex. App.—Dallas 2004, pet.
denied). “‘The risk and likelihood of injury from serving alcohol to an intoxicated person whom
the licensee knows will probably drive a car is as readily foreseen as injury resulting from setting
loose a live rattlesnake in a shopping mall.’ If we substitute ‘social host’ for ‘licensee,’ the
statement remains equally true.” Graff v. Beard, 858 S.W.2d 918, 922 (Tex. 1993) (Gammage, J.,
dissenting) (quoting El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987). 5
2. Application
Taking as true all evidence favorable to the nonmovants, indulging every reasonable
inference and resolving any doubts in the nonmovants’ favor, and disregarding contrary evidence
unless reasonable jurors could not, we hold that the Leals and Ramos did not meet their burden to
conclusively establish the absence of cause in fact and foreseeability here. See KMS Retail, 593
5 Furthermore, apportionment of responsibility, under the Proportionate Responsibility Act, applies to claims under Chapter 2 of the Texas Alcoholic Beverage Code. F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 689 (Tex. 2007) (citing Tex. Civ. Prac. & Rem. Code §§ 33.013(a), (b)(1)). Therefore, as with ordinary negligence claims following a car accident, in claims under the Chapter 2, the negligence of an actor other than the defendant does not automatically preclude proximate causation nor otherwise bar a plaintiff’s recovery. See Gonzalez v. Sanchez, 717 S.W.3d 516, 529 (Tex. App.—Eastland 2025, no pet.) (citing Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 209–10 (Tex. 2015)).
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S.W.3d at 181; Mack Trucks, 206 S.W.3d at 582. A reasonable juror could conclude that Lerma’s
intoxication was a substantial factor in bringing about the accident, and that without the alcohol
the accident would not have occurred. See Bush, 714 S.W.3d at 544. And a reasonable person
would have foreseen the general danger that allowing minors to drink alcohol can lead to a car
accident. See McKenzie, 578 S.W.3d at 519. Furthermore, based on the police report, the Leals
and Ramos have also not conclusively shown that the other driver Heard’s negligence or
intoxication constituted a new and independent cause precluding liability. See Hawley, 284 S.W.3d
at 856. Instead, that is a fact question for the jury. See Draughon, 631 S.W.3d at 87–88.
Because the Leals and Ramos did not meet their burden to conclusively negate proximate
causation, we conclude the trial court erred by granting their motions for summary judgment. We
sustain Cisneros and Nanez’s third issue.
CONCLUSION
Based on the foregoing, we reverse the trial court’s summary judgment and remand the
cause for further proceedings consistent with this opinion.
Lori Massey Brissette, Justice
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