Jоse Luis GARZA d/b/a Tropicana Night Club, Appellant, v. TEXAS ALCOHOLIC BEVERAGE COMMISSION, Appellee.
No. 08-99-00138-CV.
Court of Appeals of Texas, El Paso.
July 27, 2000.
Rehearing Overruled Aug. 30, 2000.
161
Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.
OPINION
McCLURE, Justice.
Jose Luis Garza d/b/a Tropicana Night Club (Garza) appeals from an order of the 240th District Court denying Tropicana‘s appeal from the Fort Bend County Court‘s denial of Tropicana‘s renewal application for a beer and wine retailer‘s on-premises license and after-hours permit. Garza raises thirteen issues for review in this appeal. Finding that the district court lacked jurisdiction of the original appeal, and therefore, that both the county court and district court lacked jurisdiction to enter the subsequent judgments and orders, we vacate the judgment entered by the county court on September 30, 1998, as well as the order entered by the district court on January 6, 1999. The appeal is dismissed.
FACTUAL SUMMARY
Garza, who operated the Tropicana Night Club in Rosenberg, Texas, applied with the Texas Alcoholic Beverage Commission (TABC) for renewal of the wine and beer permit and the retail dealer‘s on-premise late hours license. The City оf Rosenberg, the Police Chief of the Rosenberg Police Department, TABC, and members of the public protested his application. More specifically, the City of Rosenberg and TABC, citing numerous criminal offenses which had occurred in or near the nightclub during the previous eighteen months, protested renewal on the ground that the business is detrimental to the general welfare, health, peace, morals, and safety of the public. See
JURISDICTION
A contention raisеd by TABC requires us to first inquire whether we have jurisdiction of this appeal. See White v. Schiwetz, 793 S.W.2d 278, 281 (Tex.App.-Corpus Christi 1990, no writ) (appellate court must inquire into its own jurisdiction whether the issue is raised by the parties or on the court‘s own motion). TABC argues that because the 268th District Court did not render its judgment within the ten-day window set for appeals by the Alcoholic Beverage Code, the court lacked jurisdiction to vacаte the constitutional county court‘s October 28, 1997 judgment, and therefore, the county court lacked jurisdiction to conduct the subsequent proceedings which led to this appeal.2 Appellate court jurisdiction of the merits of a case extends no further than that of the court from which the appeal is taken. Pearson v. State, 159 Tex. 66, 315 S.W.2d 935, 938 (Tex.1958); Dallas County Appraisal Dist. v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.-Dallas 1994, writ denied). If the trial court lacked jurisdiction, then an appellate сourt only has jurisdiction to set the judgment aside and dismiss the cause. Dallas County Appraisal Dist., 887 S.W.2d at 468.
(b) The appeal shall be under the substantial evidence rule and against the commission alone аs defendant. The rules applicable to ordinary civil suits apply, with the following exceptions, which shall be construed literally:3
(1) the appeal shall be perfected and filed within 30 days after the date the order, decision, or ruling of the commission or administrator becomes final and appealable;
(2) the case shall be tried before a judge within 10 days from the date it is filed;
(3) neither party is entitled to a jury; and
(4) the order, decision, or ruling of the commission or administrator may be suspended or modified by the court pending a trial on the merits, but the final judgment of the district court may not be modified or suspended pending appeal. [Emphasis added].
Consistent with the legislature‘s directive,
We must first determine when the tenth day expired. Since Garza filed his appeal in the district court on January 9, 1998, the tenth day would have fallen on January 19, 1998, a legal holiday. Under the Code Construction Act (Chapter 311 of the Government Code), January 19 would not be included in the computation and the tenth day would instead fall on January 20. See
We must now consider whether the district court rendered its decision within the ten-day period. As we have noted, the district court conducted the hearing on January 16 but did not immediately render its decision. In fact, at the conclusion of the hearing, the judge stated:
I‘ll take these matters under advisement and issue my decision as early as possible. I‘m not going to be bound by any Ten-Day Rule when I have 16 volumes of transcripts to read through plus lengthy briefs. I will get to it and decide as early as I possibly can.
When counsel for TABC attempted to discuss the impact of the holdings in the Fox and McBeth cases, the following colloquy occurred:
[The Court]: Counsel, I am in—and I want this on the record—I am in the middle of an eight-week trial.
[Counsel for TABC]: I understand.
[The Court]: I‘m sure Courts of Appeal, since thеy take years to reach decisions, can appreciate that this Court has many things to do in deciding the issue with
this volume of evidence before it cannot be possible within two days.6 [Counsel for TABC]: All I was trying to tell the Court, that in the Fox case, they specifically ruled that as long as the Judge made a ruling within the ten-day period, it didn‘t make any difference if he signed the judgment later.
[The Court]: I appreсiate that. I would like to have a basis to make a ruling.
The district court signed an order on January 28, 1998, vacating the county court‘s judgment, but the order recites that the court rendered its decision on January 20, 1998. Mere cognition on the part of the trial court is insufficient to constitute rendition of judgment. See Reese v. Piperi, 534 S.W.2d 329, 330 (Tex.1976). Instead, judgment is rendered when the trial court officially announces its decision in open сourt or by written memorandum filed with the clerk. S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex.1995); Keim v. Anderson, 943 S.W.2d 938, 942 (Tex.App.-El Paso 1997, no writ). Rendition is distinguishable from the entry of judgment which is a purely ministerial act by which judgment is made of record and preserved. Keim, 943 S.W.2d at 942.
It is well established that public policy favors the validity of judgments. In re Wal-Mart Stores, Inc., 20 S.W.3d 734, 739 (Tex.App.-El Paso 2000, orig. proceeding); Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 251 (Tex.App.-Houston [14th Dist.] 1999, no pet. h.). A general presumption of validity is derived from this public policy and extended to the judgments of courts of gеneral jurisdiction. In re Wal-Mart Stores, at 740; Vickery, 5 S.W.3d at 251. In the absence of this presumption, a court‘s judgment would have little import and “there would be no end to troublesome litigation.” In re Wal-Mart Stores, at 740. When an attack is made upon a judgment, whether directly or collaterally, all presumptions consonant with reason are indulged in order to uphold the binding effect of such judgment. Vickery, 5 S.W.3d at 251. On appeal, the presumption of validity is applied in inversе relation to the amount of knowledge available to the appellate court. Id. Where the record is ambiguous or silent, the presumption of validity will supply by implication every proof, element, factual finding, or proper application of the law needed to support the judgment. Id. Of course, the presumption of validity is rebuttable but the burden is upon the challenging party. Vickery, 5 S.W.3d at 251.
Attacking the order‘s recitation, TABC asserts that the district court did not render judgment in open court within the ten-day period and the judge did not file a memorandum of his decision with the clerk within the same period. In support of its contention that the district court did not pronounce its decision in open court, TABC points to an affidavit in the record by the official court reporter of the 268th Distriсt Court stating that the only proceedings conducted in the cause occurred on January 16, 1998. Therefore, the record affirmatively demonstrates that the district court did not orally render judgment in open court within the ten-day period.
We have examined the entire twenty-three volume record before us and find no written memorandum of decision filed with the clerk by the district court on January 20, 1998. TABC‘s сounsel stated in veri-
A docket sheet entry ordinarily forms no part of the record which may be considered; rather, it is a memorandum made for the trial court and clerk‘s convenience. Energo International Corp. v. Modern Industrial Heating, Inc., 722 S.W.2d 149, 151 n. 2 (Tex.App.-Dallas 1986, no writ); Azopardi v. Hollebeke, 428 S.W.2d 167, 168 (Tex.Civ.App.-Waco 1968, no writ); Restelle v. Williford, 364 S.W.2d 444, 445 (Tex.Civ.App.---Beaumont 1963, writ ref‘d n.r.e.). Docket sheet entries are inherently unreliable because they lack the formality of orders and judgments. First National Bank of Giddings, Texas v. Birnbaum, 826 S.W.2d 189, 191 (Tex.App.-Austin 1992, no writ), citing Energo, 722 S.W.2d at 151 n. 2. Perhaps due to this unreliability, a docket sheet entry is generally considered insufficient to constitute a judgment or decree of the court. See Formby‘s KOA v. BHP Water Supply Corporation, 730 S.W.2d 428, 430 (Tex.App.--Dallas 1987, no writ); Loper v. Hosier, 148 S.W.2d 889, 891 (Tex.Civ.App.-Dallas 1941, writ dism‘d judgmt corr.). This rule is especially true if thе docket sheet entry is unsigned. See W.C. Banks, Inc. v. Team, Inc., 783 S.W.2d 783, 785 (Tex.App.-Houston [1st Dist.] 1990, no writ) (unsigned docket sheet entry reciting that judgment was rendered for one party held insufficient to constitute a rendition of judgment). Nevertheless, docket sheet entries have, along with other evidence and under limited circumstances, supplied proof that the trial court orally rendered judgment on a certain date. See, e.g., Henry v. Cullum Companies, Inc., 891 S.W.2d 789, 793 (Tex.App.-Amarillo 1995, writ denied) (trial court rendered judgment when it orally announced that it was granting partial summary judgment, even though there was no reporter‘s record showing the trial court‘s comments at the conclusion of the hearing, where agreed motion for severance of the claims acknowledged the oral rendition of partial summary judgment at the close of the hearing and the docket sheet notаtion, initialed by the trial judge, evidenced the court‘s action). In addition to a requirement that the docket sheet entry be signed or at least initialed by the trial court, the record must reflect that the court filed the docket sheet with the clerk as its memorandum of decision on a date certain. See Formby‘s, 730 S.W.2d at 430. Even assuming that the initials “BE” are those of the trial judge, there is no evidence that the trial court filed the docket sheet with the district clerk on January 20. Therefore, we find the docket sheet entry purportedly made on that date insufficient to constitute a rendition of judgment. See Formby‘s, 730 S.W.2d at 430. Because the trial court did not render judgment until January 28 when the trial judge signed the written order, the court lacked jurisdiction to take any further action.
CONCLUSION
The record establishes that the district court did not rеnder its decision within ten days of the filing of the first appeal. As a result, the district court lacked jurisdiction to vacate the county court‘s judgment and remand the cause for further proceedings. The constitutional county court therefore lacked jurisdiction to conduct further proceedings and render a second judgment. Accordingly, we set aside both the September 30, 1998 judgment of the сounty court and the judgment of the district court dated January 6, 1999. This appeal is dismissed.
LARSEN, J., dissenting.
LARSEN, Justice, dissenting.
I respectfully dissent. I do not believe the legislature intended to preclude appeal by a party who has done everything required under the Texas Alcoholic Beverage Code, just because the trial court failed to meet its responsibilities. (Here, quite deliberately and knowingly failed to meet those responsibilities, as the colloquy quoted by the majority makes clear.)
This court addressed an analogous situation in Lopez v. Lopez,1 a decision where an associate judge granted Rosalinda Lopez a protective order against Martin Lopez, found a common law marriage between the parties, and granted Ms. Lopez spousal support.2 Mr. Lopez attempted an appeal from the decision of the аssociate judge to the district court under
The referring court, after notice to the parties, shall hold a hearing on all appeals not later than the 30th day after the date on which the initial appeal was filed with the referring court.
The district court failed to hold a hearing before the deadline. Ms. Lopez argued that the language was mandatory and jurisdictional and that both the district court, and by extension this court, had lost jurisdiction when the thirty days expired. We agreed that a hearing was mandatory, but disagreed that failure to hold a hearing within thirty days deprived the district court of jurisdiction. We interpreted the requirement as:
[A] mandate upon the referring [district] court to promptly resolve appeals from the rulings of associate judges. This does not mean that the сourt loses jurisdiction if it fails to hold a hearing within the required time period; rather, it allows the parties to mandamus a prompt hearing after the 30 day deadline expires.3
Although the Alcoholic Beverage Code contains language that its requirements “be construed literally,” I do not view literal construction as necessarily depriving a litigant of their properly perfected appeal to the trial court. A literal construction of the requirement that “the case shall be tried before a judge within 10 days from the date it is filed” would more logically result in a mandate from a higher court, to the trial court, that the hearing be held immediately as required by the Code. This makes much more sense than punishing a party who is otherwise powerless to enforce its appellate rights. I believe our rеasoning in Lopez should apply here.
For these reasons, I dissent.
ANN CRAWFORD LARSEN
JUSTICE