dissenting.
This case requires us to decide whether a court should create a common-law cause of action in a field that the legislature has pervasively regulated. The majority holds that a private individual can be liable for serving alcohol to a guest who the server knows is intoxicated and will drive a car and who ultimately injures a third person. That holding creates liability that the legislature consciously declined to create (and arguably prohibited) when it enacted the Texas dram shop law in 1987. I dissent.
The majority does not even mention chapter two of the Alcoholic Beverage Code, which is entitled “Civil Liabilities for Serving Beverages,” and which arguably precludes the cause of action created today. That statute creates a cause of action in tort against an alcohol “provider” — defined as a licensee who sells or serves, or anyone who sells, an alcoholic beverage to an individual — if it was “apparent” that the drinker was “obviously intoxicated.” 1
Section 2.03 makes clear that the statutory cause of action is in lieu of common law liability. The last sentence in § 2.03 says that with regard to adults chapter two is exclusive and there is no other cause of action: “This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age *168or older.” If this sentence means simply that the statute is the exclusive cause of action against “providers,” it is redundant because the preceding two sentences already say the same thing. In view of § 2.01(2)’s definition of “provision” — “the sale or service of an alcoholic beverage” —§ 2.03 seems to mean: “This chapter provides the exclusive cause of action for [selling or serving] an alcoholic beverage to a person 18 years of age or older.”
Considering the statute’s title (“Civil Liabilities for Serving Beverages”) and its other provisions together, a very plausible interpretation is that (1) there is a statutory cause of action against two categories of people: (a) those who sell to an intoxicated person, and (b) those who merely serve such persons, but only if the server is a liquor licensee; (2) nothing in the statute precludes a civil action against anyone who sells or serves persons under 18 (whether intoxicated or not); but (3) there is no cause of action against ordinary private individuals (such as the defendants in this case) who serve adults, because the statute is the “exclusive” action against those who serve adults. Other sections of the code proscribe the sale of alcoholic beverages to intoxicated persons and to minors.2
In several states with comparable dram shop statutes, the courts have held that the legislature has occupied the field and that therefore the courts should not create a common-law cause of action. See, e.g., Bankston v. Brennan, 507 So.2d 1385 (Fla.1987); Gariup Constr. Co. v. Foster, 519 N.E.2d 1224 (Ind.1988); Boutwell v. Sullivan, 469 So.2d 526 (Miss.1985); D’Amico v. Christie, 71 N.Y.2d 76, 518 N.E.2d 896, 524 N.Y.S.2d 1, 62 A.L.R.4th 1 (1987); Great Central Ins. Co. v. Tobias, 37 Ohio St.3d 127, 524 N.E.2d 168 (1988); Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (Ct.App.1986).
The majority places almost all its reliance on Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984), from which it quotes extensively. But Kelly stressed that New Jersey did not have a dram shop act and said that whenever such a statute exists, the legislature has arguably occupied the field and the courts should not create common law liability:
[The] very existence of a Dram Shop Act constitutes a substantial argument against expansion of the legislatively-mandated liability. Very simply, when the Legislature has spoken so specifically on the subject and has chosen to make only licensees liable, arguably the Legislature did not intend to impose the same liability on hosts.
476 A.2d at 1227. In this passage the New Jersey court comes very close to saying that it would not have created liability if the legislature had enacted a dram shop law, because the enactment would mean that the legislature had chosen to go only so far, and no further. Texas, of course, has a dram shop act. Because our legislature has occupied this field and made a conscious decision not to extend liability to social hosts, I would not do so by judicial decision.
I agree that Walker v. Children’s Services, Inc., 751 S.W.2d 717 (Tex.App.-Amarillo 1988, writ denied), does not control this case.3 The plaintiff in Walker was the drinker himself and not the third person that he injured. The court stated the question before it as “whether a person who injures himself while driving an automobile under the influence of intoxicants may recover in tort from the individual who furnished him intoxicants in a social setting.” Id. at 718 (emphasis added).
*169Having stated the question this way, the court three times used language that suggested the social host owes no duty to the drinker or to others:
This appeal presents two questions. Does a cause of action exist in Texas which imposes a duty on social hosts not to serve liquor to guests who are obviously intoxicated in order to prevent them from harming themselves or others? ...
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Therefore, the great weight of authority supports the position that a social host should not be held liable to his guests nor to third parties whom his guests may injure ...
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[We] are not persuaded to extend a civil remedy to social guests who injure themselves or others.
Id. at 718, 720 (emphasis added). At another point in the opinion, the court stressed that the case involved the drinker himself as plaintiff and not a third person: “Otis Engineering [Corp. v. Clark, 668 S.W.2d 307 (Tex.1983) ] does not require an employer to protect an employee from harming himself. In this instance, we do not have an injured third party; therefore, Otis Engineering does not apply.” Walker, 751 S.W.2d at 719 (emphasis added).
It is true that the supreme court declined to review Walker, but that action does not necessarily mean that the court approved its dicta. The denial of review could mean that the result in Walker — that the server is not liable to the drinker who injures himself — was correct and that the court exercised its discretion not to review the ease and approve or disapprove the dicta quoted above. Yet this view has its difficulties. The supreme court in a vendor liability case suggested that the vendor owes the same duty irrespective of whether the plaintiff is the drinker or a third party: “The duty is the same whether the foreseeable injury involves the drunkard himself or a third party who may be placed in peril because of the drunkard’s condition.” El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex.1987). And our dram shop statute seems to allow a cause of action by the drinker himself in addition to innocent third parties. Nevertheless, on balance I do not consider the Walker dicta controlling in the present case.
The majority cites cases from other states and then chooses to adopt the minority rule. But in its citation of cases, the majority fails to make fundamental distinctions — whether the host violated a statute or unlawfully served a minor — and gives the erroneous impression that it is following a sizable minority. Some courts have imposed liability because the host served an underage person in violation of a statute.4 Others have relied on language in a statute that justifies civil liability when the host served an intoxicated person.,5 Only two states (Massachusetts and New Jersey) presently impose a duty on non-vendor social hosts in situations like the one before us, in which the person served was an adult and no statute was violated.6 Most courts have held that there *170is no liability under these circumstances.7 See generally Annotation, Social Host’s Liability for Injuries Incurred By Third Parties As a Result of Intoxicated Guest’s Negligence, 62 A.L.R.4& 16 (1988).
I do not fault the majority for adopting the minority rule simply because it is the minority rule. We should not follow the crowd blindly or try to discern and join the “trend” unless there are good reasons for doing so. But when a court joins a scant minority and departs from the common law to create a new, expansive cause of action, it should have good reasons. And it should consider the ramifications of the rule it adopts. It is here that I find the majority opinion especially lacking.
I wholeheartedly agree that drunk driving is a problem, and that society must seek more effective ways to deal with it.8 But I doubt that the law can reduce the DWI problem by holding social hosts liable for the accidents caused by their friends who were already intoxicated when the host served them. How much deterrence will tort suits really accomplish? Tort law does compensate, but I question whether negligence suits shape the behavior of individuals to any appreciable degree. This is especially true where the social host’s homeowners insurance policy will in all likelihood cover his actual and punitive damages9 and the attorney’s fees for defending the suit.10
*171Even if hosts will somehow be deterred from serving the extra drink, I doubt that social host liability will reduce the number of accidents involving drunk drivers because under the majority opinion the cause of action will lie only when the driver was already intoxicated and poised to drive before he got the additional drink from the host. Eliminating the extra drink will not eliminate the driver who was drunk in the first place. I certainly recognize that a driver who is already intoxicated can be more dangerous if he has another drink and becomes even more intoxicated or stays in that condition longer. But why not make the person liable who served the marginal drink that made him intoxicated in the first place? Is there that much difference between the host who serves the almost intoxicated guest and puts him over the line and the host who serves the already intoxicated guest and puts him farther over the line?11
The negligent entrustment cases, referred to in the quotation cited by the majority, do not support the creation of a duty under these circumstances. The supreme court did say in El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex.1987), that there is an “obvious analogy” between the negligent entrustment cases and the dram shop cases. But to me there is a difference between the host who lends a car to a drunk person who would otherwise be traveling on foot and not dangerous to the motoring public, and the host who gives an additional drink to a drunk person who has a car already. Having given the drunk person a dangerous instrument, the first host is more culpable because he has made the drunk dangerous to the public much more than the second. Surely the majority (and the New Jersey court that it quotes) can see the moral distinction between one who gives a car (or a loaded gun) to a drunk person and one who gives a drink to a drunk person who already has a car (or a gun). I do not defend either, but the former has endangered the public much more.
There are several reasons why this issue should be left to the legislature, which is better able to debate and study the matter.12 Legislatures can hold hearings and solicit public input on how far the law’s liability should extend toward the social host. Courts cannot do that. In fact, judges cannot even discuss the issues meaningfully in judicial campaigns.13 Un*172like legislatures we cannot send questionnaires to our “constituents” or otherwise hear out their views on a pending case. Nor can we publicize the fact that we are considering the issue and then assess the pros and cons that are made known in the media or in our constituent mail. The legislature can also consider whether society should attack the problem by means other than civil litigation.14 Courts can act only through the lawsuit, a blunt and unwieldy tool that is costly as well. In addition, courts must proceed step-by-step, while a legislature can enact a statute that takes a more comprehensive, unified view.15
The cause of action created today is palatable to the majority only because it is thought to be narrowly confined and limited. With great confidence the opinion says that the host is liable only when he had exclusive control of the liquor supply and actual knowledge that the drinker was intoxicated and would be driving. But these limits on the cause of action will prove difficult to maintain and enforce. The whole idea of deterrence rests on the premise that the person whose behavior we want to deter — the host — will be aware of the law’s sanctions. But surely some hosts, upon becoming aware of the social host cause of action, may adapt to it by structuring their affairs to avoid exclusive control of the liquor and actual knowledge of who drinks it. What will the courts do when the host gave up exclusive control and let the guests serve their own drinks? And on what principled basis will the next court decide whether to extend liability when the extra drink was consumed at a party at which all the guests contributed money and split the cost of the liquor supply? Under the majority opinion, no one is liable because the host did not have exclusive control, defined as “that right of control greater than that of the guest user.” 16 But that result allows social hosts who want to avoid liability to require simply that their guests contribute to the liquor fund and serve themselves. Who is liable when the drink was served by a bartender? Will the bartender’s actual knowledge be imputed to the host who hired him? And there are other questions. Will there be liability when one friend buys a drink at a bar for another, who a jury later decides was already intoxicated?
When these issues arise in future cases, it will be hard to draw principled lines. We will either have to extend liability further or confine it to the artificial lines drawn today. We are likely to conclude that we should not have started down this road in the first place.
The majority has ignored a statute that occupies the field (“Civil Liability for Serving Beverages”), adopted a rule that is followed by a lonely and unimpressive minority of two state courts, and given no real thought to the practical problems inherent in its decision. It has done this without discussion of whether social host liability will have any impact on the accident rate.
I respectfully dissent.
. The statute reads in its entirety as follows:
CHAPTER 2. CIVIL LIABILITIES FOR SERVING BEVERAGES
§ 2.01. Definitions
In this chapter:
(1) "Provider” means a person who sells or serves an alcoholic beverage under authority of a license or permit issued under the terms of this code or who otherwise sells an alcoholic beverage to an individual.
(2) “Provision” includes, but is not limited to, the sale or service of an alcoholic beverage. § 2.02. Causes of Action
(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.
§ 2.03. Statutory Remedy
The liability of providers under this chapter for the actions of their 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. This chapter does not impose obligations on a provider of alcoholic beverages other than those expressly stated in this chapter. This chapter provides the exclusive cause of action for providing an alcoholic beverage to a person 18 years of age or older.
TEX.ALCO.BEV.CODE ANN. §§ 2.01-2.03 (Vernon Supp.1990) (emphasis added).
. § 101.63. Sale to Certain Persons
(a) A person commits an offense if he knowingly sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person....
TEX.ALCO.BEV.CODE ANN. § 101.63 (Vernon 1978).
§ 106.03. Sale to Minors
(a) A person commits an offense if with criminal negligence he sells an alcoholic beverage to a minor....
TEX.ALCO.BEV.CODE ANN. § 106.03 (Vernon Supp.1990).
. The supreme court left open the question of gratuitous social host liability in El Chico Corp. v. Poole, 732 S.W.2d 306, 309 (Tex.1987).
. See, e.g., Ely v. Murphy, 207 Conn. 88, 540 A.2d 54 (1988); Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985); Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804 (1985); Walker v. Key, 101 N.M. 631, 686 P.2d 973 (Ct.App.1984); Mitseff v. Wheeler, 38 Ohio St.3d 112, 526 N.E.2d 798 (1988); Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983); Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985).
See also DiOssi v. Maroney, 548 A.2d 1361 (Del.1988) (host who served minor is liable to persons injured by minor on host’s premises).
. See, e.g., Divecchio v. Mead Corp., 184 Ga.App. 447, 361 S.E.2d 850 (Ct.App.1987) (court relied on earlier case interpreting statute that provided "no alcoholic beverage shall be sold ... given, provided, or furnished to any person who is in a state of noticeable intoxication"); Gariup Constr. Co. v. Foster, 519 N.E.2d 1224 (Ind.1988) (statute prohibited serving liquor to person "in a state of intoxication"); Gressman v. McClain, 40 Ohio St.3d 359, 533 N.E.2d 732 (1988) (statute forbade permit holder to sell liquor to intoxicated person); Solberg v. Johnson, 306 Or. 484, 760 P.2d 867 (1988) (violation of statute to serve “visibly intoxicated" person).
.See McGuiggan v. New England Tel. & Tel. Co., 398 Mass. 152, 496 N.E.2d 141 (1986); Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984).
In Solberg v. Johnson, 306 Or. 484, 760 P.2d 867 (1988), the court upheld liability against a tavern that had furnished alcohol to a "visibly intoxicated person" who had "a serious drinking *170problem.” The court’s language suggested that such liability might extend to the social host. The majority makes the potentially misleading statement that a social host cause of action "has been recognized” in seven states. See text of majority at note three. But as the majority admits, the legislatures of California, Iowa, and Minnesota responded to court decisions — which rested in whole or in part on statutes — with legislation abolishing the cause of action. The Connecticut case involved a vendor, though the court did suggest in dictum that there may be ordinary social host liability when the host is guilty of wanton and reckless misconduct. The Georgia cases rest on a statute that prohibited serving alcohol to minors. The Washington case is no longer authoritative in view of Burkhart v. Harrod, 110 Wash.2d 381, 755 P.2d 759 (1988), which rejected social host liability.
. See, e.g., Beeson v. Scoles Cadillac Corp., 506 So.2d 999 (Ala.1987); Fruit v. Schreiner, 502 P.2d 133 (Alaska 1972); Keckonen v. Robles, 146 Ariz. 268, 705 P.2d 945 (Ct.App.1985); Cartwright v. Hyatt Corp., 460 F.Supp. 80 (D.C.1978); Bankston v. Brennan, 507 So.2d 1385 (Fla.1987); Johnston v. KFC Nat'l Management Co., 71 Haw. 229, 788 P.2d 159 (1990); Miller v. Moran, 96 Ill.App.3d 596, 52 Ill.Dec. 183, 421 N.E.2d 1046 (1981); Gariup Constr. Co. v. Foster, 519 N.E.2d 1224 (Ind.1988) (extending liability to employer who served employee at party, but rejecting ordinary social host liability); Kuykendall v. Top Notch Laminates, Inc., 70 Md.App. 244, 520 A.2d 1115 (Md.Ct.Spec.App.), cert. denied, 310 Md. 2, 526 A.2d 954 (1987); Childress v. Sams, 736 S.W.2d 48 (Mo.1987); Holmes v. Circo, 196 Neb. 496, 244 N.W.2d 65 (1976); D'Amico v. Christie, 71 N.Y.2d 76, 518 N.E.2d 896, 524 N.Y. S.2d 1, 62 A.L.R.4th 1 (1987); Settlemyer v. Wilmington Veterans Post, 11 Ohio St.3d 123, 464 N.E.2d 521 (1984); Klein v. Raysinger, 504 Pa. 141, 470 A.2d 507 (1983); Garren v. Cummings & McCrady, Inc., 289 S.C. 348, 345 S.E.2d 508 (Ct.App.1986); Burkhart v. Harrod, 110 Wash.2d 381, 755 P.2d 759 (1988); Overbaugh v. McCutcheon, 396 S.E.2d 153 (W.Va.1990).
. The majority rests its decision almost entirely on the goal of deterring drunk driving. It does not express a desire to find additional compensation for the injured third person, but that goal is mentioned in the extensive quotation in its opinion. If greater compensation is in fact the goal, we should be candid and simply admit that we are widening the net in search of additional defendants to help compensate the injured party. As I read the majority opinion, however, it does not rest on this deep-pocket rationale.
. The Texas cases have held that punitive damages are covered under insurance policies covering the "total sum” or "all sums" that are adjudged against the insured, and that such coverage is not against public policy. See American Home Assur. Co. v. Safway Steel Prods. Co., 743 S.W.2d 693, 701-705 (Tex.App.-Austin 1987, writ denied); Home Indem. Co. v. Tyler, 522 S.W.2d 594, 596-97 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref’d n.r.e.). Many states hold otherwise. See generally Annotation, Liability Insurance Coverage as Extending To Liability for Punitive or Exemplary Damages, 16 A.L. R.4th 11 (1982).
. Criminal penalties for the serving host, which would not be discharged by insurance, would surely have a greater deterrent effect than a negligence action for damages. Middle class servers of drinks are accustomed to writing checks for insurance premiums. In all likelihood they will be little deterred by the prospect of simply having to write a slightly larger check, which of course would not happen until after they have served the drink and contributed to the accident, which is what the majority seeks to deter. In my view, the prospect of facing a criminal indictment for knowingly serving an *171already intoxicated person would be much more effective in concentrating the server’s mind on his responsibilities.
.On this point the majority has not addressed concerns such as those expressed in Justice Mosk’s concurrence in Coulter v. Superior Court, 21 Cal.3d 144, 156, 577 P.2d 669, 676, 145 Cal.Rptr. 534, 541 (1978) (emphasis added):
When the inebriate thereafter causes injury to a third person, it can be argued that the negligence which proximately caused the injury resulted from his original intoxication, not from the additional liquor served after he had already become “obviously intoxicated.” Thus I suggest that in order to hold liable the social provider of liquor, it is not enough to rely upon the provisions of section 25602 [the statute that prohibited the furnishing of any alcoholic beverage to any obviously intoxicated person]. The plaintiff should be compelled to prove either (1) that the social host furnished the liquor knowing that it was likely to, and that it did, produce the original intoxication, or (2) that the additional liquor served to one already "obviously intoxicated" increased or prolonged the existing state of intoxication and to that extent was a proximate cause of the injury.
. It is true that the legislature can correct our decision if a sizable enough legislative majority in each chamber wants to do so, and the governor agrees. But court decisions like this one simply shift the burden of passing legislation from those who favor social host liability to those who oppose it. The decision shifts the burden of overcoming inertia, which is especially important because in the Texas Senate a minority of one-third plus one can prevent legislation from being passed.
I reiterate that the legislature has already decided to make vendors liable, but it has not taken (and arguably has forbidden) the step that the court takes today.
. The Code of Judicial Conduct provides as follows:
Canon 7. A JUDGE SHALL REFRAIN FROM POLITICAL ACTIVITY INAPPROPRIATE TO THE JUDICIARY.
(1) A judge or a judicial candidate is prohibited from statements that indicate an opinion on any issue that may be subject to judicial interpretation by the office which the candidate is seeking, except that a candidate may discuss the candidate's judicial philosophy in a manner which does not suggest to a reasonable person the candidate’s probable decision on any particular case.
*172(2) A judge or judicial candidate shall not make pledges or promises of conduct in office regarding judicial duties other than the faithful and impartial performance of the duties of office....
.Approaches to the deterrence problem at both state and federal levels have included [1] strengthening criminal penalties for driving while intoxicated, [2] raising the legal drinking age to twenty-one, [3] setting up roadblocks to improve the chances of catching drinking drivers, and [4] using the media to increase public awareness of the dangers of driving under the influence. Other measures include [5] lowering, from .10% to .08% or .05%, the percentage of alcohol in the bloodstream that results in a legal presumption of intoxication, and [6] instituting administrative procedures for getting and keeping drinking drivers off the roads.
Comment, The Continuing Search for Solutions to the Drinking Driver Tragedy and the Problem of Social Host Liability, 82 NW.U.L.REV. 403, 404-405 (1988) (footnotes omitted).
. If the legislature chooses to make the social host liable, it can decide much better than the courts such issues as whether any sanction should be civil or criminal or both, whether any civil liability should be joint and several or only for the marginal percentage contribution to the accident, and whether punitive damages (which seek to punish and deter) could be discharged by insurance covering the person whose conduct the law seeks to punish and deter.
. See majority opinion at footnote six.