Opinion
No. 01-02-01314-CV
Opinion issued October 14, 2004.
On Appeal from the 269th District Court, Harris County, Texas, Trial Court Cause No. 2002-57615.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
MEMORANDUM OPINION
The Texas Alcoholic Beverage Commission (the TABC) suspended appellant's alcoholic beverage permit for 10 days unless appellant paid a $1500 civil penalty. Appellant filed a petition for judicial review of the TABC's order in the district court. The district court affirmed the TABC's order. In this appeal, we consider the time period in which the district court was required to review TABC's order. We affirm.
BACKGROUND
Sports @ The B.U.S., Ltd. (the B.U.S.) is a bar, located across the street from Minute Maid Park in Houston. On September 24, 2001, T. Chadwick, an agent for TABC, went to the B.U.S. and saw patrons seated at tables on the front sidewalk, in a "C" shaped area surrounded by wooden posts and a railing. Chadwick saw patrons drinking beer in the enclosed sidewalk area and issued the B.U.S. an administrative notice, alleging a violation of section 28.10 of the Texas Alcoholic Beverage Code by permitting the removal of an alcoholic beverage from the premises. On August 5, 2002, the administrative law judge (ALJ) found that the B.U.S. had violated section 28.10(b). On August 26, 2002, the TABC issued an order adopting the ALJ's recommendation.
Section 28.10 of the Alcoholic Beverage Code provides in part:
(a) Except as provided by this section of Section 28.01(b), a mixed beverage permittee may not sell an alcoholic beverage to another mixed beverage permittee or to any other person except for consumption on the seller's licensed premises.
(b) A mixed beverage permittee may not permit any person to take any alcoholic beverage purchased on the licensed premises from the premises where sold . . .
Tex. Alco. Bev. Code Ann. § 28.10(a), (b) (Vernon Supp. 2004).
After the ALJ denied the B.U.S.'s motion for rehearing on Thursday, November 7, 2002, the B.U.S. filed a petition for judicial review of the TABC's order. On Monday, November 18, 2002, the trial court heard the B.U.S.'s petition for judicial review. At the hearing, the TABC's counsel requested leave to file a supplemental brief, which the trial court granted. The TABC served its supplemental brief on Wednesday, November 20, 2002, and the B.U.S. responded on Thursday, November 21, 2002. Under section 11.67(a), (b)(2) of the Alcoholic Beverage Code, the trial court must render judgment within 10 days of the date a petition for judicial review is filed. However, the trial court did not render its judgment in this case until Tuesday, November 26, 2004, over one week after the deadline imposed by section 11.67(b)(2).
Section 11.67 of the Alcoholic Beverage Code provides in part:
(a) an appeal from an order of the commission or administrator refusing, cancelling, or suspending a permit or license may be taken to the district court of the county in which the applicant, licensee, or permittee resides or in which the owner of involved real or personal property resides.
. . . .
(b)(2) the case shall be tried before a judge within 10 days from the date it is filed[.]
Tex. Alco. Bev. Code Ann. § 11.67(a)(b)(2) (Vernon 1995).
In its sole point of error, the B.U.S. contends that an attorney for the TABC cannot avoid an adverse ruling by the trial court by requesting a continuance beyond the statutory deadline. In Garza v. Texas Alcoholic Beverage Commission, 89 S.W.3d 1, 2 (Tex. 2002), the Texas Supreme Court held that "section 11.67 requires that judgment be rendered no later than ten days from the date the appeal to the district court is filed." After the expiration of the 10-day period, judgment is rendered by operation of law, and the district court has "a ministerial duty to sign a judgment affirming the administrative decision." Id. at 2, 8. "Any judgment signed after that ten-day period that differs from a timely rendition of judgment is void." Id. at 2. (Emphasis added). "Because the statute creates an absolute deadline for rendition of judgment, district courts have no power to render judgment or entertain post-judgment motions after expiration of the ten-day period." Id. at 6 (emphasis added).
Based on the Texas Supreme Court's holding in Garza, we conclude that a trial court is divested of subject matter jurisdiction if it has not rendered a judgment within 10 days of the date a petition for judicial review is filed. In this case, the trial court was divested of jurisdiction, by operation of law, when it failed to render judgment on or before November 18, 2002. The trial court's only possible course of action after that date was to ministerially render a judgment affirming the TABC's order, which it did. Any other judgment would have been void. See id. at 8.
The real issue in this case is not whether the TABC can avoid an adverse ruling by requesting a continuance that puts the case beyond the jurisdiction of the trial court, but whether the trial court errs, as a matter of law, by granting such a continuance. However, the record is insufficient to show that appellant preserved this issue for appellate review. To preserve a complaint for appellate review, the party challenging the trial court's action must have presented to the trial court a timely request, objection, or motion that states the "grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. . . ." Tex.R.App.P. 33.1(a)(1)(A). In this case, there is no reporter's record from the hearing and nothing in the clerk's record to show that appellant objected to the continuance granted by the trial court. As such, appellant has preserved nothing for appellate review.
We overrule appellant's sole point of error.
We affirm the judgment of the trial court.