TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-25-00249-CV
Ronald Oman and Karen Anderson, Appellants
v.
Wildflower Country Club, Inc. d/b/a Wildflower Country Club and Jeremy Lawson,
Appellees
FROM THE 169TH DISTRICT COURT OF BELL COUNTY
NO. 24DCV346878, THE HONORABLE CARI L. STARRITT-BURNETT, JUDGE PRESIDING
CONCURRING AND DISSENTING OPINION
Today, the Court holds that an alcoholic-beverage provider is not liable for
overserving two patrons under the Texas Dram Shop Act in part because the patrons signed a
valid and enforceable pre-injury release of their claims. The implicit rationale for permitting
such releases is “Texas’s public policy that strongly favors freedom of contract,” Shields Ltd.
P’Ship v. Bradberry, 526 S.W.3d 471, 481 (Tex. 2017) (citation modified), including the
freedom to contractually release the right to bring certain legal claims, e.g., Schlumberger Tech.
Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997) (parties may contractually waive right to
bring fraudulent-inducement claims). According to this rationale, the provider and patrons are
grown-ups, so they can “freely and voluntarily” enter into whatever agreement they like,
Shields Ltd. P’Ship, 526 S.W.3d at 481, even one that leaves the patrons without a legal remedy
for their injuries.
While Texas law does “strongly favor” the “freedom of contract,” and consenting
adults do normally have “the right to contract as they see fit,” that right is not unlimited. Id.
(citation modified). The freedom of contract does not extend to agreements that “violate the law
or public policy.” Id. (citation modified). And an agreement to release the right to bring
statutory dramshop claims does just that—it violates the law and public policy embodied in the
Dram Shop Act, which is the exclusive statutory framework for litigating claims arising from the
overservice of alcohol, see Tex. Alco. Bev. Code § 2.03(c) (providing that Dram Shop Act is
“the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or
older”), enacted not as part of tort reform efforts, compare with Tex. Civ. Prac. & Rem. Code
§§ 74.001–.551 (Texas Medical Liability Act, enacted as part of 2003 tort reform package), but
as “a legitimate exercise of the police power to regulate alcohol,” Holguin v. Ysleta Del Sur
Pueblo, 954 S.W.2d 843, 853 (Tex. App.—El Paso 1997, pet. denied).
A contractual release of dramshop claims violates the law because such a release
is not included among the exclusive defenses available under the Act. And such a release
violates public policy because it allows providers to nullify one of the act’s key features—
potential lawsuits brought by overserved patrons—the purpose of which is to discourage
providers from overserving patrons and thereby promote public health and safety. Because the
pre-injury release at issue here contravenes both the law and public policy of the Dram Shop Act,
I would hold that it is void and unenforceable as applied to Appellants’ dramshop claims.
Therefore, I respectfully dissent from the part of the Court’s opinion and judgment that affirms
the district court’s dismissal of claims brought under the Dram Shop Act. I join the part of the
Court’s opinion and judgment that reverses the district court’s dismissal of the other claims
brought in this suit.
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Although this case involves claims other than statutory dramshop claims and
issues other than the validity and enforceability of the pre-injury release, for purposes of my
dissent, the background facts can be summarized and simplified as follows: Ronald Oman and
Karen Anderson (Appellants) are members of Wildflower Country Club, Inc. d/b/a Wildflower
Country Club (the Club). Appellants sued the Club and one of its employees, bartender
Jeremy Lawson (Appellees) after allegedly suffering alcohol-induced blackouts and related
injuries following a members-only golf tournament. Appellants brought a statutory cause of
action under the Texas Dram Shop Act, alleging that, during the course and scope of his
employment as bartender, Lawson overserved them alcohol at the Club after the tournament,
proximately causing them to suffer injuries later that night. See Tex. Alco. Bev. Code § 2.02(b).
Appellees moved for traditional summary judgment, see Tex. R. Civ. P. 166a(c),
arguing that an executed pre-injury release from liability in Appellants’ membership application
(the Release) established an affirmative defense to their dramshop claims as a matter of law,
see id. R. 94 (including “release” among affirmative defenses). The district court granted
Appellees’ motion and rendered a take-nothing judgment dismissing Appellants’ claims with
prejudice. The Court now affirms, holding, as relevant here, that (1) Appellees’
summary-judgment evidence established as a matter of law that the Release provides fair notice
and is therefore valid and enforceable; (2) Appellants failed to raise a genuine issue of material
fact concerning the validity and enforceability of the Release; (3) Appellants failed to preserve
any public policy challenge to the Release; and, therefore (4) the district court did not err in
holding that the Release bars Appellants’ statutory dramshop claims.
I respectfully dissent. I would hold that the public policy challenge has been
preserved for our review, despite Appellants’ failure to raise it in the district court, because this
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case presents a “rare instance” of “fundamental error,” as the record shows that “the public
interest [will be] directly and adversely affected” by the rule of the law set forth by the Court
today. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 511–13 (Tex. 2018).
I would further hold that a pre-injury release signed by a country club member
cannot bar a subsequent claim under the Texas Dram Shop Act for injuries sustained by the
member after being overserved at the country club bar. While it appears that no Texas court has
ruled on this precise issue, the strong weight of authority supports the conclusion that the release
at issue here is unenforceable against Appellants’ dramshop claims.
Consider first the Act’s text and structure. The Act begins by creating a cause of
action for “providing, selling, or serving” alcohol to an “obviously intoxicated” person. Tex.
Alco. Bev. Code § 2.02(b). It then establishes the “exclusivity” of this “statutory remedy,”
id. § 2.03 (“Exclusivity of Statutory Remedy”), providing:
(a) The liability of providers under this chapter for the actions of their
employees, customers, members, or guests who are or become intoxicated
is in lieu of common law or other statutory law warranties and duties of
providers of alcoholic beverages.
(b) This chapter does not impose obligations on a provider of alcoholic
beverages other than those expressly stated in this chapter.
(c) This chapter provides the exclusive cause of action for providing an
alcoholic beverage to a person 18 years of age or older.
Id. (emphasis added). Finally, the Act eliminates liability under the so-called “Safe Harbor”
provision, which creates an affirmative defense for providers who train their employees and do
not encourage them to violate the law. Id. § 106.14(a). By creating an exclusive statutory cause
of action, displacing the common law, and enumerating a single statutory affirmative defense,
the Act establishes an exclusive statutory framework for imposing liability on alcoholic beverage
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providers for damages resulting from the provision of alcohol to obviously drunk persons. In my
view, this exclusive-remedy scheme is most naturally construed as prohibiting private pre-injury
releases that purport to eliminate the liability the Legislature has expressly imposed on providers.
My proposed construction finds additional support in the caselaw, which recognizes defenses
rooted in the statutory text—i.e., defenses that are either expressly stated in or reasonably
inferred from the provisions of the Act. See, e.g., 20801, Inc. v. Parker, 249 S.W.3d 392, 394
(Tex. 2008) (opinion construing Act’s Safe Harbor provision codified at Tex. Alco. Bev. Code
§ 106.14(a)); Calvillo v. Frazier, 511 S.W.3d 194, 196 (Tex. App.—Dallas 2015, no pet.)
(private club did not “provid[e], sell[], or serv[e]]” alcoholic beverage to patron, as required by
Tex. Alco. Bev. Code § 2.02(b), when record showed that patron “never bought a drink” but
rather drank from other patrons’ drinks).
Now consider the Act’s purpose. As the Texas Supreme Court has explained, the
Act is intended to deter providers from overserving obviously intoxicated individuals and to
prevent such individuals from harming not only other people but also themselves. Smith
v. Sewell, 858 S.W.2d 350, 356 (Tex. 1993). The Safe Harbor provision furthers this goal by
incentivizing providers to engage in conduct that decreases the chances that obviously
intoxicated persons will be served alcohol. But a pre-injury release does the opposite: It
increases the chances that obviously intoxicated patrons will be served alcohol by removing an
incentive for providers to encourage their employees to follow the law—potential liability from
suits brought by overserved patrons. If patrons can’t sue providers for overservice,
then providers are more likely to overserve them—and the purpose of the Act is more likely to
be thwarted.
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Consider further the nature of the Act. As mentioned earlier, while the Act
codifies and regulates claims previously brought under the common law, the Act is not an
example of tort reform. Instead, the Act constitutes an exercise of the State’s police power. As
Texas courts have recognized, the duties imposed on providers by the Act constitute “a
legitimate exercise of the police power to regulate alcohol.” Holguin, 954 S.W.2d at 853. And
when, as here, statutory duties are grounded in the exercise of the state’s police power, those
duties normally are not subject to private contractual waiver, as such waivers undermine the
public purposes the Legislature seeks to advance through the statute. Cf. Deep E. Tex. Reg’l
Mental Health & Mental Retardation Servs. v. Kinnear, 877 S.W.2d 550, 566 (Tex. App.—
Beaumont 1994, no writ) (explaining that “private contract rights must yield” to “the State’s
right to exercise its police power”). Here, the Act seeks to prevent providers from overserving
obviously intoxicated individuals. But if a country club can avoid dramshop liability by
obtaining pre-injury releases from its members, I do not see why it does not also follow that
other providers—including bars, nightclubs, taverns, restaurants, cafes, hotels, liquor stores,
grocery stores, convenience stores, and various venues and festivals, among others—may avoid
liability by obtaining releases from their patrons—an outcome at odds with the statute’s purpose.
See Philadelphia Indem. Ins. v. White, 490 S.W.3d 468, 475 (Tex. 2016) (“As a general rule,
parties in Texas may contract as they wish so long as the agreement reached does not violate
positive law or offend public policy.”); see also Elliott v. City of College Station, 717 S.W.3d 888,
898 (Tex. 2025) (judiciary should not “second-guess the policy choices that inform
our statutes”).
Thus, the Court’s holding is at odds with the Act’s text, structure, purpose, and
nature, while my position accords with all four components of the statute. Further, the Court’s
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holding lacks direct support from the caselaw. The Dram Shop Act has been around for nearly
40 years. But I am unable to find a single case affirming the dismissal of a dramshop claim
based on a pre-injury release signed by the plaintiff, and the cases cited by Appellants do not
involve releases from liability for dramshop claims but other causes of action. See, e.g.,
Quintana v. CrossFit Dall., L.L.C., 347 S.W.3d 445 (Tex. App.—Dallas 2011, no pet.) (release
from liability for injuries sustained while exercising under instruction of personal trainer); Last
v. Quail Valley Country Club, L.P., No. 01-08-00759-CV, 2010 WL 1253782, at *1 (Tex.
App.—Houston [1st Dist.] Mar. 25, 2010, pet. denied) (mem. op.) (release from liability for
injuries sustained from riding mechanical bull). If pre-injury releases were permitted under the
statute, one would expect this principle to be reflected in the caselaw. It is not. One would
further expect pre-injury releases signed by patrons of providers to be a common feature of life
in Texas. It is not, either.
I conclude with a final animating concern: I am worried that the Court’s opinion
will encourage alcoholic-beverage providers to limit their liability under the Dram Shop Act by
obtaining pre-injury releases from their patrons, which, in turn, will result in at least some
providers adopting a more lax approach to serving their patrons alcohol, which, in turn, will
result in more alcohol-related injuries. For these reasons, and with much respect for the Court’s
opinion, I dissent.
Maggie Ellis, Justice
Before Chief Justice Byrne, Justices Crump and Ellis
Filed: October 16, 2026
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