Texas Liquor Control Bd. v. Cervantes

• Decision Date: 09 March 1960
• Docket Number: No. 13573,13573
• Citation: 333 S.W.2d 466
• Parties: TEXAS LIQUOR CONTROL BOARD, Appellant, v. Angela CERVANTES, Appellee.
• Court: Texas Court of Appeals

Page 466

333 S.W.2d 466

TEXAS LIQUOR CONTROL BOARD, Appellant, v. Angela CERVANTES, Appellee.

No. 13573.

Court of Civil Appeals of Texas, San Antonio.

March 9, 1960.

Will Wilson, Atty. Gen., Cecil Commack, Jot Hodges, Jr., Asst. Attys. Gen., for appellant.

Nago L. Alaniz, San Diego, Carl C. Chase, Corpus Christi, for appellee.

BARROW, Justice.

The Texas Liquor Control Board on March 17, 1959, entered an order cancelling the permit issued to Angela Cervantes to sell beer at Angelita's Bar in the City of Freer, Duval County, Texas. She appealed to the District Court and, after hearing the evidence, the court rendered judgment holding void the order of the Board cancelling the permit. Defendant, Texas Liquor Control Board has appealed.

The charged brought against appellee, and upon which the Board acted are: That on or about February 9, 1959, appellee, Angela Cervantes, was visibly intoxicated on the licensed premises, such conduct being offensive to public decency and that on or about February 11, 1959, said Angela Cervantes did permit unsanitary conditions to exist upon her licensed premises, which conditions could and should have been prevented by her or her agent in charge, if proper supervision of the premises had been maintained.

The pertinent sections of the Texas Liquor Control Act, Arts. 667-19, and 667-19B, Vernon's Ann.Penal Code, provide as follows:

'Art. 667-19. Cancellation or suspension of license

'The Board or Administrator may cancel or suspend for a period of time not exceeding sixty (60) days, after notice and hearing, any license or any renewal of such license, upon finding that the licensee has: * * *

'(6). Does not have running water, such being available, or does not have separate toilets for males and females properly marked and identified, on the licensed premises; or

'(7). Permitted on the licensed premises any conduct by any person whatsoever that is lewd, immoral or offensive to public decency; or * * *

'(14). That the place or manner in which the license conducts his business is of such a nature which, based on the general welfare, health, peace, morals and safety of the people and on the public sense of decency, warrants the cancellation or suspension of the license; or * * *.'

'Art. 667-19B. Lewd or immoral conduct; conduct offensive to public decency. which the licensee conducts his business this Act, conduct by any person at a place of business where the sale of beer at retail is authorized that is lewd, immoral, or offensive to public decency is hereby declared to include but not be limited to the following prohibited acts; and it shall be unlawful for any person engaged in the sale of beer at retail, or any agent, servant or employee of said person, to engage in or to permit such conduct on the premises of the Retailer: * * *

'(f). Becoming intoxicated on licensed premises or permitting any intoxicated person to remain on such premises. * * *

'(i). Failing or refusing to comply with or failure or refusal to maintain the retail premises in accordance with the health laws of this State or any sanitary laws or with sanitary or health provisions of any city ordinance.'

The Act defines 'premise' as follows:

"Premise' shall mean the grounds as well as all buildings, vehicles, and appurtenances pertaining thereto and shall also include any adjacent premises, if directly or indirectly under the control of the same person; * * *.' Vernon's Ann.Civ.St. art. 666-3a(7).

This is a substantial evidence case. Appellant contends that the trial court erred in reversing and holding void the order of the Board cancelling the beer retail license of appellee, Angela Cervantes, because the order of the Board is supported by substantial evidence. We agree with that contention.

It is now well established that on an appeal from the orders of an administrative agency, such as the Texas Liquor Control board, under a statute providing for a trial de novo, the decision of the agency will be sustained if it is reasonably supported by substantial evidence; meaning evidence introduced in court. Hawkins v. Texas Co., 146 Tex. 511, 209 S.W.2d 338; Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420.

In determining what constitutes 'substantial evidence' the Supreme Court in Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, 1029, has laid down the rules which govern such cases in the following statement:

'In such a case the issue is not whether or not the agency came to the proper fact conclusion on the basis of conflicting evidence, but whether or not it acted arbitrarily and without...