Texas Alcoholic Beverage Commission v. Arthur Lopez D/B/A Mi Ranchito

• Court: Court of Appeals of Texas
• Decided: July 28, 1999
• Docket: 04-98-00828-CV
• Status: Published

Opinion

No. 04-98-00828-CV

TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellant

v.

Arthur LOPEZ, d/b/a Mi Ranchito, Appellee

From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 98-CI-12264 Honorable John Gabriel, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: July 28, 1999

JUDGMENT VACATED AND CAUSE DISMISSED

The Texas Alcoholic Beverage Commission appeals the trial court's judgment reversing the county judge's decision to deny Arthur Lopez's application to renew his wine and beer retailer's permit and retail dealer's on-premise late hours license for Mi Ranchito. The Commission contends the trial court was without jurisdiction to consider Lopez's appeal because he failed to file a motion for rehearing, as required by the Texas Administrative Procedure Act. See Tex. Gov't Code Ann. § 2001.145(a) (Vernon Pamph. 1998). We agree. When reviewing an application to renew a beer and wine license, a county judge "is actually acting as part of the review process of the Texas Alcoholic Beverage Commission," and a "denial by the county judge constitutes a denial by the commission"; therefore, judicial review of the county judge's decision is governed by the Texas Administrative Procedure Act. Lindsay v. Sterling, 690 S.W.2d 560, 562 (Tex. 1985). Under the APA, a timely filed motion for rehearing " is a jurisdictional prerequisite to judicial review by the district court." Id. at 563; Temple Indep. School Dist. v. English, 896 S.W.2d 167, 169 (Tex. 1995).

The Commission contends Lopez did not file a motion for rehearing; Lopez has not filed a brief contending otherwise; and the record does not reflect one was filed. The undisputed record thus establishes the district court was without jurisdiction over Lopez's appeal. We therefore vacate the trial court's judgment, dismiss the cause, and reinstate the order of the county judge.

Sarah B. Duncan, Justice

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