Texas Liquor Control Bd. v. McGee

• Court: Texas Civil Court of Appeals
• Writing for the Court: BARROW
• Citation: Texas Liquor Control Bd. v. McGee, 314 S.W.2d 678 (Tex. Ct. App. 1958)
• Decision Date: 04 June 1958
• Docket Number: No. 13341,13341
• Petition History: writ ref'd n.r.e.
• Parties: TEXAS LIQUOR CONTROL BOARD, Appellant, v. Frank M. McGEE, Appellee.

Page 678

314 S.W.2d 678

TEXAS LIQUOR CONTROL BOARD, Appellant, v. Frank M. McGEE, Appellee.

No. 13341.

Court of Civil Appeals of Texas, San Antonio.

June 4, 1958.

Rehearing Denied July 2, 1958.

Will Wilson, Atty. Gen., John H. Minton, Jr., Marvin R. Thomas, Jr., Asst. Atts. Gen., for appellant.

Werner A. Gohmert, Alice, for appellee.

BARROW, Justice.

This is an appeal from the judgment of the District Court reversing the order of the Assistant Administrator of the Texas Liquor Control Board.

The Assistant Administrator of the Texas Liquor Control Board, after due notice, conducted a hearing upon the charge: 'That on or about the 7th day of October, A.D.1957, in the County of Jim Wells, State of Texas, on the premises on Lot 12, Block 5, Atkinson Addition, Soutth Side of San Diego Highway, City of Alice, of Frank M. McGee holding Beer Retail License No. 169763, issued by the Texas Liquor Control Board on the 31st day of May, A.D.1957, for the said premises, the said Frank M. McGee did then and there permit Cecil Decker to shoot and kill Kenneth Orr, such act constituting a breach of the peace upon said premises and the act was not beyond the control of the person holding the license and did result from improper supervision by the licensee of the conduct of the persons permitted by him to be on the licensed premises and the premises under his control.'

After said hearing, the Assistant Administrator made and entered an order cancelling McGee's permit. The licensee, Frank M. McGee, duly appealed to the District Court, which court, after a trial, rendered judgment setting aside said cancellation order. Texas Liquor Control Board has appealed.

Appellant attacks the judgment upon three points.

By its first point appellant contends that the trial court erred in holding that the burden of proof was on the Board in an appeal brought by the licensee. In Texas Liquor Control Board v. Marine Exchange Social Club, Tex.Civ.App., 127 S.W.2d 967, 968, the Court said:

'The law is settled in this state that on a statutory appeal from an order of the Texas Liquor Control Board or its administrator cancelling a beer license or permit because of some violation of the Liquor Control Act, the burden of proof is upon the party attacking it to show that the order is invalid. Bradley v. Texas Liquor Control Board, Tex.Civ.App., 108 S.W.2d 300; Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227; Texas Liquor Control Board v. Warfield, Tex.Civ.App., 110 S.W.2d 646; Id., Tex.Civ.App., 111 S.W.2d 862; Texas Liquor Control Board v. Floyd, Tex.Civ.App., 117 S.W.2d 530; Texas Liquor Control Board v. Blacher, Tex.Civ.App., 115 S.W.2d 1030; Texas Liquor Control Board v. Tschoerner, Tex.Civ.App., 117 S.W.2d 121. Such orders are not only made prima facie valid by statute, but being official acts there is a presumption in favor of their legality; and the one attacking them upon the ground that there was not sufficient evidence before the Board or administrator to authorize the cancellation of the license must show that fact on an appeal from the order cancelling such license. Texas Liquor Control Board v. Floyd, supra; Humble Oil & Refining Co. v. Railroad Comm., Tex.Civ.App., 112 S.W.2d 222.'

See als, Texas Liquor Control Board v. Armstrong, Tex.Civ.App., 300 S.W.2d 146; State v. Peeler, Tex.Civ.App., 200 S.W.2d 874; Ramos v. Austin, Tex.Civ.App., 220 S.W.2d 528; Isbell v. Brown, Tex.Civ.App., 196 S.W.2d 691.

The record shows that after the court ruled that the burden of proof was upon appellant, the Board proceeded to offer proof and was permitted to introduced such proof as it cared to. Under the circumstances, the case having been fully developed, so far as appellant is concerned, we think the error of the court becomes harmless in view of our further holding. Texas Real Estate Commission v. Sandefur, Tex.Civ.App., 279 S.W.2d 954.

By its second and third points appellant contends that appellee, Frank M. McGee, failed to discharge the burden of proof, in that he failed to show that the order of the Assistant Administrator of the Texas Liquor Control Board is not reasonably supported by substantial evidence, and that in fact the proof before the court shows that the order is reasonably supported by substantial evidence.

The order of the Administrator is prima facie valid. Art. 666-12a, Vernon's Ann....