# Retail Merchants Ass'n of Houston v. Handy Dan Hardware, Inc.

> Texas Court of Appeals, 1st District (Houston) · April 25, 1985 · 696 S.W.2d 44

URL: https://www.frixlaw.com/law-library/cases/9767066

## Case

- **Full name:** RETAIL MERCHANTS ASSOCIATION OF HOUSTON, INC., Appellant, v. HANDY DAN HARDWARE, INC., Appellee
- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** April 25, 1985
- **Citations:** 696 S.W.2d 44; 1985 Tex. App. LEXIS 7585
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Warren, Duggan, Hoyt
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

OPINION ON MOTION FOR REHEARING
PER CURIAM.
In its motion for rehearing, appellee contends that this court erred by ignoring the many findings of fact promulgated by the trial court. Appellee argues that these findings are binding on us in our review of the constitutionality of the Blue Law since they were unchallenged by appellant. Ap-pellee further contends that this court “should have considered only [its] evidence and construed all inferences in [its] favor.” Finally, appellee contends that this court erred in reviewing the sufficiency of the evidence when no point was assigned on appeal.
Restated, our obligation in reviewing the constitutionality of a statute under the due process and equal protection provisions of the United States and Texas Constitutions is to determine whether any rational relationship can reasonably be conceived between the statute’s purpose and its means. In the local economic sphere, only wholly arbitrary acts will be invalidated as violative of due process and equal protection. City of New Orleans v. Dukes, 427 U.S. 297, 303-04 , 96 S.Ct. 2513, 2516-17 , 49 L.Ed.2d 511 (1976). As the members of the United States Supreme Court wrote:
[T]he judiciary may not sit as a super-legislature to judge the wisdom or desire-ability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines.
City of New Orleans v. Dukes, 427 U.S. at 303 , 96 S.Ct. at 2516 .
Appellee contends that since the sufficiency of the evidence supporting the trial court’s findings was not challenged, we are bound by those findings. We note initially that appellee has failed to cite any authority for this proposition in a case in which the constitutionality of a statute has been challenged. Moreover, several of the lower court’s “Findings of Fact” are in actuality “Conclusions of Law” and are thus reviewable under rules applicable to all cases. See, e.g., Finding of Fact Number 13, supra (“There is no rational rela *55 tionship between Article 9001 and the health, recreation and welfare of the people of the State of Texas”). In any event, where the constitutional issues involved are inextricably intertwined with the trial court’s findings, proper consideration of those issues requires a review of the entire record. Cf. Fiske v. State of Kansas, 274 U.S. 380, 385-86 , 47 S.Ct. 655, 656-57 , 71 L.Ed.2d 1108 (1926); Northern Pacific R. v. North Dakota, 236 U.S. 585, 593 , 35 S.Ct. 429, 432 , 59 L.Ed. 735 (1915) (where constitutionality of state statute is attacked reviewing court is obligated to review facts when they are “intermingled” with conclusion of law). See also State ex rel. Guste v. K-Mart Corp., 462 So.2d 616 (La.1985) (not yet reported) (state supreme court’s review of fact findings in Louisiana Blue Law case); Vornado, Inc. v. Hyland, 77 N.J. 347 , 390 A.2d 606, 612-14 (1978) appeal dism’d, 439 U.S. 1123 , 99 S.Ct. 1037 , 59 L.Ed.2d 84 (1979) (state supreme court’s detailed review of evidence of unconstitutionality of New Jersey Blue Law). Our review should not, however, include an evaluation of the credibility of witnesses since the trier of fact is the sole judge of credibility of witnesses. Harris County v. Hall, 141 Tex. 388 , 172 S.W.2d 691, 696 (1943); Cobb v. Dunlap, 656 S.W.2d 550, 553 (Tex.App.—Corpus Christi 1983, writ ref’d n.r.e.).
In sum, where a statute’s constitutionality is challenged under the due process and equal protection clauses of the state and federal constitutions, the reviewing court is required to examine all the evidence presented in an attempt to demonstrate the absence of any rational relationship between the statute’s means and ends. On original submission, we reviewed all the evidence, including that admitted by judicial notice, but absent an evaluation of witness credibility, in determining that ap-pellee failed to meet its burden. The standards of review developed to evaluate the constitutionality of .economic legislation narrowly circumscribe the powers of the appellate judiciary. We decline appellee’s invitation to encroach upon or supplant the powers of the legislature to formulate policy.
Appellee’s motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9767066. Public record. Not legal advice.