# Patton v. Texas Liquor Control Board

> Court of Appeals of Texas · June 27, 1956 · 293 S.W.2d 99

URL: https://www.frixlaw.com/law-library/cases/9667392

## Case

- **Full name:** W. T. PATTON, Appellant, v. TEXAS LIQUOR CONTROL BOARD Et Al., Appellees
- **Court:** Court of Appeals of Texas
- **Decided:** June 27, 1956
- **Citations:** 293 S.W.2d 99; 1956 Tex. App. LEXIS 1747
- **Precedential status:** Published
- **Opinion:** Dissent by Gray
- **Judges:** Archer, Gray, Hughes
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9667392

## Opinion text

GRAY, Justice.
I respectfully dissent from the holding of the majority in this cause.
The opinion of the majority treats the election held on December 10, 1935, as void and of no effect. Assuming this to be correct and that its result need not be noticed then in my opinion Sec. 40a of Art. 666, Vernon’s Ann.P.C. quoted by the majority *103 compels the conclusion that the county judge upon hearing the application “had lawful reason for denying the application.” Art. 667-6(c), Vernon’s Ann.P.C.
In its present wording Sec. 40a of Art. 666 supra stands as a bar to the granting of appellant’s application because under its provisions the subject area is dry and so remains until the bar is removed by judicial decision.
Art. 667-6 supra provides that: the application for a license to sell beer, etc., shall be filed with the county judge; the same shall be set down for hearing, and if at the hearing the county judge finds the facts stated therein to be true “and has not other lawful reason for denying the application” he shall enter his order so certifying.
In hearing 'the application the county judge acts in an administrative and not a judicial capacity. Jones v. Marsh, 148 Tex. 362 , 224 S.W.2d 198 ; State v. Farris, Tex.Civ.App., 239 S.W.2d 419 , no writ history. In the event the application is denied Sec. (e) of Art. 667-6 supra provides for an appeal to the district court for a trial de novo. Sec. 14 of Art. 666 supra.
In Jones v. Marsh supra the Court said [ 148 Tex. 362 , 224 S.W.2d 201 ]:
“The statute does not expressly provide that there shall be in district court a full retrial of the facts as if there had been no findings made by the county judge, nor does the statute specify what issue or issues shall be tried in the district court. It may, therefore, reasonably be concluded, in view of the subject matter involved and the nature of the order to be reviewed, that only a limited review is intended, and that in so far as the facts which are the basis for the order of the county judge are concerned the question or issue to be determined in the district court is whether or not the findings of the county judge are reasonably supported by substantial evidence. Such a trial is one kind of a trial de novo, and the somewhat limited trial can be held, as the statute requires, under the rules applicable to ordinary civil suits. * *
■“ * * * Since the permit or license is a mere privilege, its issuance, denial and cancellation are properly committed to an administrative body or agency, and, in the interest of efficiency, the fact findings made by the administrative body or agency in the performance of duties of this kind are usually subject to a limited, rather than to a full, judicial review, in Texas a review under the substantial evidence rule.”
It being established by the authorities supra that the county judge in hearing the application for license acts in an administrative and not a judicial capacity and that on appeal to the district court his findings are “subject to a limited, rather than to a full, judicial review;” it is my opinion that neither the county judge nor the district court could refuse to abide by the provisions of Sec. 40a of Art. 666, supra. Or, in any event, that the provisions of this section of the statute together with the holdings in Crawford v. Maples, Tex.Civ.App., 114 S.W.2d 696 , no writ history, and Musgrove v. State, 159 Tex.Cr.R. 571 , 265 S.W.2d 820 , warranted the conclusion of the county judge as stated in the opinion of the majority “that the premises for which permit was sought are (in the opinion of the judge) within a ‘dry area’”, and also sufficient to support the same opinion of the district court on appeal.
It is my opinion that in this proceeding neither the county judge nor the district court could judicially construe Sec. 40a supra to be of no effect and could not test and adjudicate the authority of the Legislature to enact it, but that they were bound by its provisions.
The situation here presented is similar to that before the Supreme Court in Trapp *104 v. Shell Oil Co., 14S Tex. 323, 198 S.W.2d 424, 437 , wherein the Court said:
“The duties of the Railroad Commission as given by law do not encompass the power or authority of deciding the ownership of the title to land. We think it follows that the appeal contemplated by Section 8 of Article 6049c does not include such power, even though the appeal is to a district court of Travis County which, in a proper case, has such jurisdiction.”
It must also be noticed that the order of the commissioners’ court declaring the result of the election of December 10, 1935, is in effect an order enforcing the result of that election. It is true that if the election was void then in a proper proceeding the enforcement might be enjoined. 16 Tex.Jur., Sec. 157, p. 208. However, in this proceeding such relief cannot be granted.
I would affirm the trial court’s judgment.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9667392. Public record. Not legal advice.