Texas Liquor Control Board v. Floyd

• Decision Date: 29 April 1938
• Docket Number: No. 13805.,13805.
• Parties: TEXAS LIQUOR CONTROL BOARD v. FLOYD.
• Court: Texas Court of Appeals

117 S.W.2d 530

TEXAS LIQUOR CONTROL BOARD v. FLOYD.

No. 13805.

Court of Civil Appeals of Texas. Fort Worth.

April 29, 1938.

Rehearing Denied May 27, 1938.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Proceeding by the Texas Liquor Control Board against J. J. Floyd to cancel a permit theretofore issued to J. J. Floyd to sell wine and malt liquors. From a judgment of the district court setting aside an order of the board canceling the permit, the board appeals.

Reversed and rendered.

William McCraw, Atty. Gen., and Victor W. Bouldin and Joe Sharp, Asst. Attys. Gen., for appellant.

Mays & Mays, of Fort Worth, for appellee.

SPEER, Justice.

This is an appeal by the Texas Liquor Control Board from a judgment of the 96th district court of Tarrant County, Texas, setting aside an order of the Board cancelling a permit theretofore issued to J. J. Floyd, to sell wine and malt liquors, at 102-A West Exchange Avenue, in the City of Fort Worth, which permit, by its terms, expired January 5th, 1938.

Texas Liquor Control Act was designated by the Legislature as such, and is divided into two parts, which are now Articles 666-1 et seq. and 667-1 et seq., Vernon's Texas Penal Code. For convenience, in this opinion we shall refer to the Act by Penal Code numbers and subdivisions thereof, without repetition of the legal title of the Act. We shall refer to the Texas Liquor Control Board as appellant, and to J. J. Floyd as appellee.

On October 18th, 1937, appellant issued and caused to be served upon appellee, a notice to appear before it on October 25th, 1937, at a named place in the City of Austin, Travis County, Texas, to show cause why appellee's wine and beer permit should not be cancelled.

The notice contained the alleged causes for cancellation of the permit, and were embraced in two counts. The substance of each was that (a) on about May 26th, 1937, the appellee being the holder of wine and beer permit No. 11,652, and engaged in the business authorized thereby, had in his possession at that time, at and near said licensed premises, liquors, produced by the process of distillation, towit, whiskey; (b) at the time and place last mentioned, appellee was such holder of said license and permit, and that he had in his employ on the licensed premises one Dub Livingston, who at the time and place mentioned in the first count "did then and there have in his possession at and near the premises, liquor produced by the process of distillation, towit, whiskey."

The appellee filed his answer denying the charges. At the time and place designated in the notice, a hearing was had before Bert Ford, the Administrator of appellant. The appellee did not attend the hearing; all matters of fact were submitted to the administrator upon ex parte affidavits. Because of the conclusions we have reached with reference to a disposition of this appeal, we deem it advisable to quote the affidavits relied upon by the appellant, but will only make what we consider a fair summary of those relied upon by appellee. This is because, as we shall presently show, the contents of the affidavits tendered by appellant and those offered by appellee, all of which we shall refer to as the testimony, are hopelessly conflicting; the Administrator believed the testimony offered by appellant and based his order thereon. It must follow that he disbelieved the testimony tendered by appellee, in so far as it conflicted with the former.

Omitting the formal parts, signatures and notary's jurat, the affidavits offered in evidence by appellant before the Administrator were as follows:

"State of Texas, County of Tarrant.

"Before me, the undersigned authority, this day personally appeared W. F. Dunsmore, Inspector for the Texas Liquor Control Board, to me well known, and who, after being by me duly sworn, deposes and says:

"That on the 26th day of May, 1937, at 12:30 A. M. o'clock in the County of Tarrant, City of Fort Worth, I, accompanied by Inspector Gantt, entered 102 West Exchange Street, no name appearing on the window designating the place. We seated ourselves at a booth to the left of the bar and ordered half a pint of Canadian Club Whiskey and set-up from a waitress, who was later identified as `Billie'. She went to the bar and said something to the bartender, `Dub' Livingston. She came back to us and said, `We would have to wait a few minutes until the police squad car left the front of the place, so that `Dub' could go into the package store and get the whiskey for us.'

"I then left the booth, went to the bar and stood there and saw `Dub' take a key off a nail behind the bar. He went to the front entrance and used the key to unlock the door into the package store adjoining. This package store is partitioned off from the bar room by glass, and I, as well as Inspector Gantt saw `Dub' Livingston take a half pint of Canadian Club Whiskey off the shelf, come out of the package store, lock the door and give the whiskey to `Billie', the waitress. She in turn gave it to me, telling me that the price was the same $1.15. I gave her two one-dollar bills. She went to the bar, handed the money to `Dub' Livingston, who rang up sale of $1.15 on cash register and handed `Billie' the change which she brought me, it being the amount of $.85. This sale was consummated at 12:45 A. M.

"The description of the bar-room is as follows: On entering, the bar is at the right about fifteen feet long. On the left is the package store, this being the main room. In the rear on the left side is a room 30' x 30', in which there are booths with tables. The inspectors, after making the above purchase, left the place, and the half pint of whiskey purchased was labeled and properly marked by myself and Inspector Gantt for evidence, and later turned over to Mr. Pinson, Deputy Supervisor, Fort Worth, Texas.

"After the waitress, Billie, had brought half pint of whiskey to the table, she asked that I give her a drink, which I did, and Inspector Gantt and I consumed a small part of whiskey on the premises.

                         "(Signed) William Dunsmore."
                "State of Texas, County of Tarrant
                

"Before me, the undersigned authority, this day personally appeared E. M. Gantt, Inspector for the Texas Liquor Control Board, to me well known, and who, after being by me duly sworn, deposes and says:

"That on the 26th day of May, 1937, at 12:30 A. M. o'clock in the County of Tarrant, City of Fort Worth, I accompanied Inspector W. F. Dunsmore, and we entered 102 West Exchange Street, which is a beer parlor, and seated ourselves in a booth adjoining the main room in which the bar is located.

"A waitress, known as Billie, came to our table and asked what we wanted. Inspector Dunsmore ordered a half pint of Canadian Club Whiskey and a set-up. `Billie' went to the bartender, talked to him, returned to our tables and told Dunsmore we would have to wait for the whiskey until the police squad car left in front of the place, so that `Dub' the bartender could go into the package store and get the whiskey for us. Inspector Dunsmore left the table and went to the bar where I followed him and saw `Dub' open the door of the package store with a key and after entering, take a bottle of whiskey from the shelf and upon reentering the bar-room again, he handed the bottle of whiskey to `Billie' the waitress, who brought same to our table, and she asked Dunsmore for a drink, which was give her. Both Mr. Dunsmore and I took a small drink from the bottle. We then left and later labeled and marked the container properly for evidence.

                               "(Signed) E. M. Gantt."
                

The substance of the affidavits offered by appellee is as follows: Appellee Floyd testified he was the owner of the wine and beer permit or license mentioned in the notice, and that his place of business was at 102-A West Exchange Avenue; during the life of the license he had not had in his possession on the premises any whiskey nor had he ever known of any one of his employees having such in their possession there; he had at all times instructed his employees to strictly keep any and all liquors not licensed under his permit away from the premises; that if any employee had, during the licensed period, possessed or kept any such prohibited beverages there, it was without his knowledge and against his orders. He served eats and beer at his place and it was common, out of three or four hundred customers per day and night, for some one or more to leave whiskey in bottles about the premises and they would be found in cleaning up, and he had instructed the porters to remove it promptly from the place; the customers who so left whiskey invariably brought it with them; he had told his waitresses and all employees that such liquors must not be left about the premises. He had never had a permit cancelled nor criminal charges filed against him.

Dub Livingston testified that the accusation contained in the notice to Floyd to the effect that he (the witness) had in his possession on the licensed premises, whiskey, at the time named, was untrue; that he never at any time either before, at the time of, or after that named in the charge, had in his possession any whiskey on or near the premises; that Floyd had instructed all employees not to possess whiskey there; the representatives of the Liquor Control Board made thorough searches of those premises, both before and after the time named in the notice, and so far as he knew, they never found any whiskey on or near the premises.

Maryetta Dunaway and Minerva Jeffries both testified they were working as waitresses for appellee at 102-A West Exchange Avenue, before and after May 26th, 1937; representatives of the Liquor Board often came in the place and inspected it and so far as the witnesses knew, no whiskey was ever found at or near the premises; that if any whiskey was found on May 26th, 1937, neither of them heard of it and they were there at the time; neither of them ever knew of Dub Livingston or any...