Nickel v. Texas Liquor Control Board

ARCHER, Chief Justice. Homer G. Nickel, herein styled appellant, filed an application for a Package Store Permit with the Texas Liquor Control Board, 'herein'styled appellee, the premises for which the application was sought being six miles West of San Angelo on Mertzon Road, Highway 67. Doc Willeke protested the granting of the application and after due notice a hearing was held before the Assistant Administrator on behalf of the Texas Liquor Control Board. The only evidence heard and the only protest considered by the Texas Liquor Control Board pertained to the location of the premises in question with reference to the boundary line between wet and dry precincts. The Texas Liquor Control Board refused to grant appellant’s application and appellant duly appealed to the 119th District Court of Tom Green County, Texas. The trial court sustained the order of the Texas Liquor Control Board refusing the application and in addition thereto, decided that appellant’s premises are in a dry area. Article 666-11, Vernon’s Penal Code, provides in part as follows: “The Board or Administrator may refuse to issue a permit either on an original application or a renewal application, to any applicant either with or without a hearing if it has reasonable grounds to believe and finds any of the following to be true: ****** “(6) The place or manner in which the applicant may conduct his business is of such a nature which, based on the general welfare, health, peace, motáis, and safety of the people and on the public sense of decency, warrants a refusal of a permit.” The Board entered the following order; “Be it remembered, that on the 3rd -day of February, A.D.19S3, there came on for hearing the above styled and numbered matter * * * The Assistant Administrator, after having heard the complaint and all the evidence introduced and the argument of counsel, is of the opinion and finds that the following airé the true facts: “1. “That the place in which the applicant may conduct his business is of such a nature which, based on the general welfare, health, peace, morals, and [140] safety of the people and on the public sense 'of decency, warrants a refusal of the permit. “The 'Assistant Administrator finds, therefore, that the issuance of the permit applied for to the applicant herein described would be in conflict with the requirements of the Texas Liquor Con- ' trol Act and is of the opinion that the application should be refused.” This appeal is before this Court on three assignments: 1. The error of the trial court in finding that the premises were within the .boundaries of a dry area. 2. The error of the trial court in finding that there was evidence before the Texas Liquor Control Board that the premises for which the application was sought were situated in a dry area. 3. The error of the trial court in concluding that the Texas Liquor Control Board acted within the scope of its delegated authority. We believe that the Board acted within its delegated authority and that its order was based on substantial evidence and not arbitrary or capricious, and that the trial court was justified in upholding the action of the Board and was reasonably supported by substantial evidence. Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198; Scales v. Texas Liquor Control Board, Tex.Civ.App., 192 S.W.2d 466. In the Jones v. Marsh case, supra, Justice Smedley set out the statutes and rules controlling the law and the procedure in a suit concerning an administrative body’s or agency’s fact findings, and we see no need to restate them. The trial court heard testimony as to the location of the premises on which the permit was sought, witnesses testified that it was in a dry area and'others that it was in a wet area, and the testimony was conflicting, and the trial court upheld the order of the Board. • Art. 666-11, supra. The judgment of the trial court is affirmed.