Sierra v. Texas Alcoholic Beverage Commission

OPINION BURGESS, Justice. Appellant applied for a wine and beer retailer’s permit from the Texas Alcoholic Beverage Commission (the Commission). Her application was denied by the county court acting as administrative officer of the Commission. Appeal was taken to the district court, which found the order to be reasonably supported by substantial evidence and affirmed it. Appellee raises by its first “reply point”1 the argument that appellant failed to invoke the district court’s appellate jurisdiction because appellant did not comply with section 11.67(c) of the Texas Alcoholic Beverage Code (the Code). Appeal from denial of application under the Code is governed by TEX.ALCO.BEV. CODE ANN sec. 11.67 (Vernon Supp.1989) which provides in relevant part: (b) The appeal shall be under the substantial evidence rule and against the commission alone as defendant. The rules applicable to ordinary civil suits apply, with the following exceptions, which shall be construed literally: (1) the appeal shall be perfected and filed within 30 days after the date the order, decision, or ruling of the commission or administrator becomes final and appealable; (2) the case shall be tried before a judge within 10 days from the date it is filed; [946] (3) neither party is entitled to a jury; and (4) the order, decision, or ruling of the commission or administrator may be suspended or modified by the court pending a trial on the merits, but the final judgment of the district court may not be modified or suspended pending appeal, (c) A local official, on record as protesting the issuance or renewal of a permit or license at a hearing provided by this code, is entitled to notice of the appeal. If other persons are on record as protesting the issuance or renewal of a permit or license at a hearing provided by this code, the first three persons to be on record are entitled to notice of the appeal. The appellant is responsible for causing the notice to be given. The notice shall be given by sending, on or before the third day after the date on which the appeal is filed, a copy of the petition by registered or certified mail to the persons entitled to receive the notice. See TEX.ALCO.BEV. CODE ANN sec. 61.-34 (Vernon 1979); Lindsay v. Sterling, 690 S.W.2d 560, 562 (Tex.1985). Such appeals are also governed by the Administrative Procedure and Texas Register Act (AP-TRA), TEX.REV. CIV.STATANN. art. 6252 — 13a secs. 19 & 20 (Vernon Supp.1988). Lindsay, 690 S.W.2d at 562. Appellee cites several cases for the proposition that section 11.67(b)(1) and section 16(e) and 19(a) of the APTRA are jurisdictional. Texas Alcoholic Beverage Comm ’n v. Wilson, 573 S.W.2d 832, 835 (Tex.Civ.App.—Beaumont 1978, writ ref’d n.r.e.); TEX.REV. CIV.STATANN. art. 6252— 13a, secs. 16(c) & (e) and 19(a) (Vernon Supp.1988); TEX.ALCO.BEV. CODE ANN. sec. 11.67(b)(1) (Vernon Supp.1989). Appellee cites no authority that subsection (c) of 11.67 is jurisdictional, i.e., that notice to a protestant is necessary to perfect appeal to a district court. In addition, if subsection (c) were construed as jurisdictional, it would conflict with the plain meaning of subsection (b). Subsection (c) requires notification on or before the third day after petition is filed, whereas subsection (b) requires the appeal to be “perfected and filed within 30 days after the date the order ... becomes final and appealable.” Thus, under subsection (b), an appeal would be perfected upon filing of the petition, but under subsection (c), it would be perfected up to three days after filing the petition. Thus, assuming arguendo that appellant failed to notify the protestant in this case of her appeal to the district court, the district court was not deprived of subject-matter jurisdiction as appellee argues. Appel-lee’s first “reply point” is thus overruled. Appellant asserts in her first point of error that the court below erred in affirming the county court’s order by misapplying the “substantial evidence rule” to appellant’s application. The substantial evidence rule states that a finding of an administrative agency must be sustained by a reviewing court unless the court finds, as a matter of law, that the agency’s decision was not supported by substantial evidence. Lewis v. Metro. Sav. & Loan Ass’n, 550 S.W.2d 11, 13 (Tex.1977); Jones v. Marsh, 148 Tex. 362, 224 S.W.2d 198, 202 (1949). The evidence may be substantial yet preponderate the other way. Lewis, 550 S.W.2d at 13. The parties stipulated appellant was a qualified applicant in that she had complied with all regulations promulgated by the Commission governing issuance of licenses and that the Commission had no objection to granting her a permit. Rather, appellant’s application was opposed by a local citizen and, primarily, members of her church. Appellant’s application was denied on grounds that “the place or manner in which the applicant for a retail dealer’s license may conduct his business warrants a refusal of a license based on the general welfare, health, peace, morals, safety, and sense of decency of the people.” TEX. ALCO.BEV. CODE.ANN. sec. 6142(a)(3) (Vernon Supp.1989). The evidence produced at the hearing focused on the appropriateness of the location at which appellant has chosen to open a Mexican food restau [947] rant in which she also wishes to sell beer and wine for on-premises consumption. The county judge denied the application solely on the ground that the proposed site was located on a dangerous curve in the road. Interestingly, in making his ruling, the county judge stated that the “problem” upon which he based his denial was not apparent in the evidence adduced at the hearing, and we agree. Appellee relies in large part on Helms v. Texas Alcoholic Beverage Comm’n, 700 S.W.2d 607 (Tex.App.—Corpus Christi 1985, no writ) and Rector v. Texas Alcoholic Beverage Comm’n, 598 S.W.2d 888, 889 (Tex.Civ.App.—Beaumont), rev’d on other grounds, 599 S.W.2d 800 (Tex.1980). The fact of these cases, however, are distinguishable from the facts in this case. Ap-pellee presents Rector as authority that denial of an application can be justified by proximity of an establishment to a curve in the road. However, there existed other physical factors justifying the denial in Rector: (1) restricted visibility of drivers on both crossroads, (2) the proposed establishment would have caused increased traffic from a neighboring “dry” area, (3) the large number of homes in the vicinity and children playing along the road, (4) the fact that both the store and its driveway were hidden by trees and bushes. None of these factors is present in this case. In addition, the curve in Rector was a curve with a hill; the curve in this case is flat. The court below erred in holding the Commission’s denial was supported by substantial evidence. Appellant’s point of error one is sustained. We need not reach appellant’s second point of error since it is unnecessary to the disposition of the appeal. TEX.R.APP.P. 90(a). The judgment below is reversed. REVERSED AND REMANDED. Footnotes [1] Appellee’s "reply point” is more properly denominated a “cross-point” since it complains of an action of the trial court which constitutes error as to the Commission. No independent appeal, however, need have been perfected by appellee to raise the point. Hernandez v. City of Fort Worth, 617 S.W.2d 923, 924 (Tex.1981).