Opinion
No. 05-05-00787-CV
Opinion issued May 31, 2006.
On Appeal from the 86th District Court, Kaufman County, Texas, Trial Court Cause No. 67913-86.
Reversed and Remanded.
Before Justices WRIGHT, BRIDGES, and LANG.
MEMORANDUM OPINION
Washington St. Liquor appeals the trial court's denial of its application for a permit allowing the sale of alcoholic beverages. In three issues, Washington argues there is no evidence to support the denial of its application, the trial court's basis for the denial of the application was improper, and ample evidence justifies approval of the application. In two reply issues, the Texas Alcoholic Beverage Commission (TABC) agrees the trial court erred in denying Washington's petition on the basis stated and urges this Court to remand this case to the trial court for further review. We reverse the trial court's judgment and remand for further proceedings.
Washington filed an application for a permit to sell alcoholic beverages, and the county judge denied the application in March 2005. Washington filed a petition in district court seeking review of the denial of its application. The district judge denied Washington's petition on the basis that Washington failed to comply with section 11.67(c) of the alcoholic beverage code by failing to provide required notice to the entire Kaufman City Council. This appeal followed.
We first address Washington's second issue arguing the trial court improperly denied the petition on the basis that Washington did not comply with section 11.67(c). The TABC agrees the trial court erred in denying Washington's petition solely on this basis. A county judge who rejects an application for an alcohol license is acting administratively on behalf of the TABC. See Lindsay v. Sterling, 690 S.W.2d 560, 562 (Tex. 1985). Both the trial court's and our review of final orders issued by the TABC are governed by the substantial evidence rule. Tex. Alco. Bev. Code Ann. § 11.67(b) (Vernon 1995); Four Stars Food Mart v. Tex. Alcoholic Beverage Comm'n, 923 S.W.2d 266, 269 (Tex.App.-Fort Worth 1996, no writ). Substantial evidence is more than a mere scintilla, and the evidence in the record may preponderate against the county court's decision but still amount to substantial evidence. Four Stars, 923 S.W.2d at 269. The review by the trial court is more limited than in a trial de novo; an appellate court is to decide if the order is reasonable. Id. Under the substantial evidence rule, the burden of proof is on the licensee to show that the administrative order was not supported by substantial evidence, rather than by a preponderance of the evidence. Id.
Here, the district judge's order denying Washington's petition for review recites that the mayor of Kaufman and one city council member were present at the hearing on the motion. However, the remaining members of the city council were not present. The district judge found that Washington had failed to adhere to the requirements of section 11.67(c) of the alcoholic beverage code, which requires notice to all local officials on record as protesting the issuance or renewal of a permit or license. See Tex. Alco. Bev. Code Ann. § 11.67(c) (Vernon 1995). On this basis alone, the district judge denied Washington's petition. Neither party cites any authority, and we have found none, indicating that the requirements of 11.67(c) are jurisdictional. See Sierra v. Tex. Alcoholic Beverage Comm'n, 763 S.W.2d 945, 946 (Tex.App.-Beaumont 1989), rev'd on other grounds, 784 S.W.2d 359 (Tex. 1990) (assuming for sake of argument appellant failed to comply with section 11.67(c), district court not thereby deprived of jurisdiction). We agree that, as both parties concede, the trial court erred in denying Washington's petition on the basis that it failed to provide sufficient notice under section 11.67(c) and failing to conduct a substantial evidence review. See Four Stars, 923 S.W.2d at 269. Accordingly, we sustain Washington's second issue.
Washington urges this Court to consider the evidence in this case and order the issuance of a permit allowing Washington to sell alcoholic beverages. The TABC asks that this Court remand the issue to the district court for further review. Because we conclude the district court did not consider the evidence in this case, we remand for a determination of Washington's claims on the merits. See Caller-Times Publ'g Co. v. Triad Commc'ns, 826 S.W.2d 576, 589 (Tex. 1992) (op. on reh'g). Because of our disposition of this issue, we need not further address Washington's remaining issues.
We reverse the trial court's judgment and remand for further proceedings.