St. Agnes Academy v. Texas Alcoholic Beverage Commission

391 S.W.3d 277, 2012 WL 6554829, 2012 Tex. App. LEXIS 10398
CourtCourt of Appeals of Texas
DecidedDecember 12, 2012
DocketNo. 03-12-00099-CV
StatusPublished
Cited by1 cases

This text of 391 S.W.3d 277 (St. Agnes Academy v. Texas Alcoholic Beverage Commission) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
St. Agnes Academy v. Texas Alcoholic Beverage Commission, 391 S.W.3d 277, 2012 WL 6554829, 2012 Tex. App. LEXIS 10398 (Tex. Ct. App. 2012).

Opinion

OPINION

J. WOODFIN JONES, Chief Justice.

St. Agnes Academy, Sharpstown Civic Association, and Clarewood House Residents Association (collectively “Protestants”) contested the application of Club Bellaire, Inc. d/b/a El Corral (“Club Bel-laire”) for a permit to sell alcoholic beverages in the vicinity of Protestants’ properties. See Tex. Aco. Bev.Code Ann. § 5.435 (West 2007) (public participation in licensing or permitting hearings). Following a contested-case hearing, the administrative law judge (ALJ) recommended that Club Bellaire’s application be granted. The Texas Acoholic Beverage Commission (TABC) accepted the ALJ’s recommendation and issued an order granting the application. Id. § 5.35 (“The commission may grant, refuse, suspend, or cancel alcoholic beverage permits and licenses as provided in this code.”). Protestants then filed a suit for judicial review against the TABC and Club Bellaire in Travis County District Court pursuant to the Administrative Procedure Act (APA), Tex. Gov’t Code Ann. §§ 2001.001-.902 (West 2008 & Supp. [279]*2792012). The trial court granted the TABC’s and Club Bellaire’s pleas to the jurisdiction and dismissed the suit for lack of subject-matter jurisdiction -without specifying its reasons. We will affirm.

DISCUSSION

A plea to the jurisdiction challenges the court’s authority to decide a case. Heckman v. Williamson Cnty., 369 S.W.3d 137, 149 (Tex.2012). Whether a court has subject-matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate subject-matter jurisdiction are questions of law that we review de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004).

In this lawsuit, Protestants sought judicial review of the TABC’s order granting Club Bellaire’s application for an alcoholic-beverage permit, which they challenged before the agency on the basis of the business’s proximity to their real property, asserting that issuance of the requested permits would adversely affect the general welfare, health, peace, or safety of the people or violate the public sense of decency. See Tex. Aleo. Bev.Code Ann. § 11.46(a)(8) (West Supp.2012) (providing discretionary grounds for refusing application for alcoholic-beverage permit). The TABC and Club Bellaire filed pleas to the jurisdiction on the grounds that Protestants had no right to judicial review in this case because (1) section 11.67 of the Texas Alcoholic Beverage Code does not allow judicial review of TABC decisions granting an alcoholic-beverage permit, (2) even if the alcoholic beverage code authorizes judicial review in this case, Protestants failed to comply with statutory time limits provided in section 11.67, and (3) Protestants have not satisfied the APA’s threshold requirements because they lack a jus-ticiable interest and, therefore, are not “aggrieved” within the meaning of APA section 2001.171. See id. § 11.67 (West Supp.2012) (authorizing judicial review from appeal of refusal, cancellation, or suspension of alcoholic-beverage permit); Tex. Gov’t Code Ann. § 2001.171 (West 2008) (authorizing judicial review for person aggrieved by decision in contested case after administrative remedies exhausted).

“It is well recognized under Texas law that there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely. affects a vested property right or otherwise violates a constitutional right.” Continental Cas. Ins. Co. v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex.2000) (citing Stone v. Texas Liquor Control BdL, 417 S.W.2d 385, 385-86 (Tex. 1967)). The Texas Supreme Court has held, however, that section 2001.171 of the APA provides an independent right to judicial review of agency orders as long as the relevant enabling act does not prohibit judicial review. Texas Department of Protective & Regulatory Services v. Mega Child Care, Inc., 145 S.W.3d 170, 173, 199 (Tex.2004). Thus, the central issue in this case is whether a provision in the Texas Alcoholic Beverage Code prohibits judicial review of TABC orders granting a permit.

On appeal, Protestants assert first that they have a right to judicial review under section 2001.171 of the APA because section 11.67 of the Texas Alcoholic Beverage Code, although specifically conferring a right to judicial review from an order “refusing, cancelling, or suspending” an alcoholic-beverage permit, does not expressly deny or prohibit judicial review from an order granting such a permit. Assuming they prevail on this threshold issue, Protestants also contend that (1) they are not subject to section 11.67’s 20-day deadline for prosecuting a suit for judicial review, [280]*280and (2) the trial court erred in excluding the testimony of witnesses offered to help establish that Protestants met the prerequisites to suit set forth in section 2001.171 of the APA.

With regard to the first issue, Protestants assert that the alcoholic beverage code is “silent” regarding judicial review of a TABC decision to grant an alcoholic-beverage permit because there is no language specifically prohibiting judicial review of that type of decision. Consequently, they contend that an independent right to judicial review exists under the APA based on the supreme court’s decision in Mega Child Care, which recognized such a right absent a conflict with an agency’s enabling statute. 145 S.W.3d at 173, 199. The TABC and Club Bellaire respond that the alcoholic beverage code is not silent regarding the right of judicial review of TABC orders on permit applications because the code specifically limits judicial review to TABC decisions refusing, cancel-ling, or suspending an alcoholic-beverage permit and provides detailed requirements for prosecuting such appeals. The principal dispute here concerns the scope of Mega Child Care as it relates to section 11.67 of the alcoholic beverage code, and in particular, what it means for a statute to be “silent” regarding judicial review of an agency “decision.”

Under the alcoholic beverage code, the TABC has the power to “grant, refuse, suspend, or cancel alcoholic beverage permits and licenses as provided in [the] code.” Aleo. Bev.Code § 5.35. Chapter 11 of the code, which provides the general statutory provisions applicable to alcoholic-beverage permits, directs some provisions to all four categories of decisions specified in section 5.35 while limiting others to only one or more of those actions. See generally id. § 11.01-73 (West 2008 & Supp. 2012). Section 11.67 is one of the provisions that includes references to some but not all of the decisions that the TABC is authorized to make. Specifically, if the TABC has refused, canceled, or suspended a permit, section 11.67 of the code expressly authorizes the applicant to appeal the TABC’s decision subject to the following conditions:

(a)

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Cite This Page — Counsel Stack

Bluebook (online)
391 S.W.3d 277, 2012 WL 6554829, 2012 Tex. App. LEXIS 10398, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-agnes-academy-v-texas-alcoholic-beverage-commission-texapp-2012.