N. J. R. Inc. v. Texas Alcoholic Beverage Commission, 16064

• Decision Date: 19 April 1973
• Docket Number: No. 16064,16064
• Citation: 494 S.W.2d 235
• Parties: N. J. R. INC., Appellant, v. TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 235

494 S.W.2d 235

N. J. R. INC., Appellant, v. TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellee.

No. 16064.

Court of Civil Appeals of Texas Houston (1st Dist.).

April 19, 1973.

Pruitt & Monshaugen, Robert Levine, Houston, for appellant.

John L. Hill, Atty. Gen., Texas, John M. Barron, First Asst. Atty. Gen., Larry F. York, Executive Asst. Atty. Gen., Joe B. Dibrell, Lang A. Baker, Asst. Attys. Gen., Austin, for appellee.

EVANS, Justice.

This involves an administrative order of the Texas Alcoholic Beverage Commission cancelling appellant's mixed beverage permits for failure to timely file a monthly report for December, 1971. The trial court without a jury upheld the Commission's order, holding that the Commission acted within its delegated authority, that its order was based upon substantial evidence and that it had not acted arbitrarily or capriciously. Appellant's four points of error attack these findings.

The Commission's order is prima facie valid. Texas Liquor Control Board v. Cervantes, 333 S.W.2d 466 (Tex.Civ.App.--San Antonio 1960, n .w.h.). The burden of proof was upon appellant to show that the Commission's order was not supported by substantial evidence. Texas Liquor Control Board v. McGee, 314 S.W.2d 678 (Tex.Civ.App.--San Antonio 1958, ref'd, n.r.e.). In order to sustain its burden appellant was required to offer proof that no substantial evidence existed at the time of the administrative hearing to support the Commission's order. Texas Liquor Control Board v. Lanza, 129 S.W.2d 1153 (Tex.Civ.App.--Dallas 1939, dism'd, judg. correct); Texas Liquor Control Board v. Marine Exchange Social Club, 127 S.W.2d 967 (Tex.Civ.App.--Austin 1939, n.w.h.).

Appellant offered no proof that it had ever filed a monthly report for December, 1971.

Upon the stipulations contained in appellee's brief and in its oral argument, we find that the Commission's order was based upon the provisions of Article 666--20d(i) of the Vernon's Ann.Texas Penal Code. This subsection provides in effect that the Commission 'may' cancel a licensee's permit upon finding, after notice and hearing, that the licensee failed to file a required report. The penalties provided for a violation of this subsection are less onerous than those imposed under Subsection (j) which provide for a mandatory cancellation in the event of a finding that the licensee 'knowingly' violated the provisions of the Act. In view of our finding that the Commission's order was based upon Subsection...