*1 jurisdiction). Thus, court of trial application. court own The record before the did application not lose Court does not contain over Hawkins’s filed application by In protective appellant. appli- for the absence of an order order- cation, appellant ing Moreover, cannot show that the sixty-dаy extension. trial ignored right protective court his to seek a trial granted court the extension because We appellant’s order. overrule tenth is- appellant’s competency being was ad- sue. proceeding. dressed a criminal
We the trial conclude court did not err issue, his appellant eleventh In in granting sixty-day extension. We contends trial court erred in issuing appellant’s eighth overrule issue. protective order in the absence of proof. citing any authority, Without ap issue, ninth appellant his com pellant contends it was error to issue the plains was opportunity that he denied an protective order evidence without such as present hеaring evidence at the on his records, police photographs, medical rec motion trial allega for new to rebut the ords, and testimony corroborating Haw tions reporter’s made Hawkins. The allegations. kins’s Our review of the rec hearing record of appellant’s on motion ord shows testified at the Hawkins for support new trial does not his conten hearing. detailing Hawkins’s affidavit tion. hearing, appellant At the addressed allegations by appellant of violence was (1) two grounds: court the trial en introduced into at the hearing. evidence tered protective order deter before was at the presented hearing Evidence (2) mining that was competent; he he support protective the issuance of the or failed hearing to show on Haw Accordingly, der. we conclude the trial application protective kins’s order be issuing protective court did not err in hospital. cause he was trial We appellant’s order. overrule eleventh court gave appellant opportunity to issue. present grounds. evidence on these two affirm protective We the trial court’s Appellant one hearing called witness at the order. who appellant testified a car accident morning of the scheduled
hearing hospital. taken to the
Appellant presented the two evidence on
grounds at raised trial motion for new
hearing. Accordingly, appel we overrule TELOLOAPAN, SUPERMERCADO lant’s ninth issue. Teloloapan INC. Meat d/b/a tenth appellant his con Market, Appellant, tends trial refusing erred him right protective to seek a order HOUSTON, Appellee. CITY OF against Appellant Hawkins. claims the trial court ignored his “motion and verbal re No. 14-06-00472-CV. quests” for a protective order. Texas, Court of Appeals of A respondent to an for a application (14th Dist.). Houston protеctive may apply order protective for a Dec. 2007. by filing separate order application. Rehearing (Vernon Jan. 2008. Overruled Ann. Fam.Code protective To obtain a order Hawkins, against appellant had to file his *2 Huff, Houston, for Van
Albert Thomas appellant. Pourteau, II, Chap- Erica
Bertrand L. Houston, Schwam, appellee. man Chief Panel consists of Justice HEDGES, FOWLER, and Senior Justice EDELMAN.* Justice OPINION MAJORITY HEDGES, ADELE Chiеf Justice. action, declaratory judgment ap- In this Teloloapan, Inc. pellant, Teloloapan (“Super- Meat Market d/b/a mercado”), take-nothing judg- appeals appellee, in favor of (“the City”). Supermercado’s Houston trial court argues that the sole City’s definition finding erred is reasonable the term line” meaning with and consistent 3-2(a) of Houston’s Code of Ordi- section affirm. nances. We * assignment. sitting H. Edelman Senior Justice Richard
BACKGROUND City interpreted ed. The “property line” to mean the of the entire tract of Supermercado operates grocery land on which the buildings leased are in Houston. Supermercado ap- located. After a bench the trial court plied for off-premises liquor license *3 denied the reUef sought by Supermercado with the Texas Beverage Alcoholic Com- (the “Commission”), City’s mission found interpretation which would Supermercado “property enable to sell beer and wine line” was reasonable. for off-premises consumption. satisfy To a permit, Supermerсado condition for the re- DECLARATORY JUDGMENT quested certify that the loca- In its sole
tion of its store was in a “wet area” and contends that the trial court erred in find that the sale of alcoholic beverages at the ing that City’s definition of the term prohibited by city was not ordinance. “property line” is reasonable and consis See Tex. Aleo. Bev.Code Ann. 61.37 tent with the However, meaning of the statute. refused the store pursu- as a “wet area” Section 3-2 of Houston’s Code of Ordi- ant to section 3-2 of Houston’s Code of provides nances in pertinent part: (“the Ordinance”), Ordinances pro- (a) hibits the sale of It shall beverages any alcoholic be unlawful for with- dealer to in 300 feet of a рublic private or beverages school. sell alcoholic corpo- within the city rate limits of the place where the property store’s prop- abuts the business of such dealer is within 300 feet erty adjacent Une of an apartment com- church, any public elementary, junior plex, which portion property leases a of its school, high high or or hospital or to a charter school. The charter school within “private 300 feet of a school” as (the leases a total of buildings four “leased that term is in defined Section buildings”) for school use from apart- the Texas Beverage Alcoholic complex. Code. It the actual leased shall buildings any be unlawful for are more than 300 dealer to sell away feet from the store’s alcoholic property beverages any Une.1 The area designat- refused to certify Supermercado city council, because ed provided as (e) distance between property the store’s below, subsection as an “alcohol-free line and apartment complex’s property school zone.” The measurement line is than less 300 feet. distance between the of business where beverages alcoholic are sold and
Thereafter, Supermercado sought a de-
church, public
school,
hospital, public
claratory judgment
requested
pro-
school shall be made as
trial court declare the Ordinance and sec-
vided in Section 109.33 of the Texas
tion 61.37 of the Texas Alcohol and Bever-
(the “Code”)
Beverage
Alcoholic
ages Code
Code. This section
require that
shall be
distance be measured from
administered
a manner that
the leased
buildings, and that
is consistent with
the term
Section 109.33 of thе
Une” refers
Beverage
to the leased
Texas Alcoholic
buildings con-
Code and
trolled
the charter school
shall
apply
beverage
rather than
alcoholic
property
line of the entire tract of
permit
land
license or
to which that section is
upon
buüdings
which the leased
inapplicable.
are locat-
аddition,
1. In
ings
apartment
between the
line of the
buildings,
are several other
store and the
driveway,
line of the leased build-
and a tennis court.
statute,
struing
objective
our
to deter-
of the
Alcoholic Bev-
Section 109.33
Texas
the intent of the
give
mine and
effect to
erage
provides
pertinent part:
Code
Shumake, body. State v.
governing
(a)
a сounty
The commissioners court of
If
statute is
may
regulations applicable in
enact
must
its
unambiguous,
apply
we
clear and
in the
an incor-
areas
outside
meaning.
according to their common
words
city
town,
porated
gov-
and the
language
ambiguous,
at issue
erning
incorporated city
board
body’s
give
governing
we
deference
mаy
regulations appli-
or town
enact
Fiess
language.
of the
town,
city
prohibiting
in the
cable
Lloyds,
State Farm
beverages by
the sale of alcoholic
*4
give serious consideration
We
place
dealer whose
of business is
a
governing body’s
to a
construction of
within:
charged
enforcing,
it is
with
as
statute that
(1)
church,
or
public
pri-
300 feet оf a
interpretation is
long as the
reasonable
school,
public hospital[.]
vate
plain language
and
the
does not contradict
(b) ... The
of the dis-
measurement
Miami Ind. Sch. Dist. v.
of the
statute.
place
tance between
of
the
business Moses,
871,
(Tex.App.-Aus-
989 S.W.2d
beverages
where alcoholic
are sold
denied).
1999,
tin
pet.
public
and the
school shall
private
Rhea,
At
Rhonda
the division man-
be:
permitting and
ager for the commercial
(1) in
line
property
a direct
from the
City
section of the
of Hous-
enforcement
line
of the
school to ton,
City
“proper-
defines
testified
the
line
of
property
of the
busi-
ty
boundary
the
of the tract of
line” as
ness,
in a
direct line across in-
lаnd
the
is located.
property
on which
terseetions[.]
Rhea
that
find the appropriate
testified
to
line,
Supermercado’s
City
investiga-
issue turns on the
sends
City’s
of
If
proper-
construction
the Ordinance and tor to
at the
property.
look
discernible,
In
ty
readily
investiga-
its definition of
line.”2
line
con-
is
2. The dissent believes
Court
the Code. Id. at 643.
In that
dоes not
authorized
have
to address the merits of the
regard,
juris-
recognized
exclusive
declaratory judgment because the Commis-
agency,
in the administrative
with
diction
jurisdiction.
sion has exclusive
The dissent
subject-
result that the district court lacked
finds that the issuance of the certification
case, however,
In this
City
step”
in this case is but "one
in the
deсlaratory
judgment
filed a
process
seeking permit
a
from the Commis-
seeking
City
action
clarification of Houston
Roose,
Relying
sion.
on Sells v.
Unlike the business owners
ordinance.
1989, writ),
(Tex.App.-Austin
no
Sells,
compel
Supermercado did not seek to
Supermercado’s
dissent
that
reme-
concludes
of "wet” sta-
to issue
certification
dy
agеncy.
lies with the administrative
declaratory
Supermercado sought a
tus.
Sells,
ap-
and other business owners
Roose
Ordinance,
interpret
to
plied
permit
a beer retailer’s
with the
for
specifically permitted by
Texas
Prac-
Civil
clerk refused to
Commission.
&
tice
See Téx. Civ. Prac.
and Remedies Code.
certify
premises
in a
that Roose's
wеre
"wet”
37.004(a) (Vernon 1997).
Ann.
Rem.Code
petition
area. The business owners filed a
required
Supermercado is
to exhaust ad-
not
seeking
compel
writ of
Sells
mandamus
remedies with the Commission
ministrative
perform
statutory duty
her
and issue the cer-
the Ordinance.
obtain an
appeals
found
tificate. The court
Therefore,
Burgess,
See
permercadо to the area controlled the “Code”) require the meas- that distance be school. City ured in a different manner than the measured it. trial After bench the The Code mandates that the measure- Super- relief sought by denied the be made from “the of mercado and findings and issued of fact the to “proper- school the conclusions of lаw. line” of ty of business[J” The issue this case is how the defines Subject jurisdiction only matter exists “property line” of the school. Neither by operation law con- of and cannot be Ordinance, nor Code “prop- defines ferred consent waiver. Univ. Tex. Further, erty line.” the Ordinance does Loutzenhiser, Sw. Med. Ctr. v. not address an which instance the school Thеrefore, a court is property, or the business but leases does obliged subject to ascertain matter occupy not tract of entire land on jurisdiction regardless exists whether which sits. parties have it. Id. raised Ordinance, In interpreting ju- generally courts Texas district have that “property determined line” refers to actions exceрt risdiction over all those of land the tract on which jurisdiction has been conferred on tribunal, court, is located. We find that its some other or administra- Const, V, § of the term body. line” tive Tex. art. 8. There- fore, and agency reasonable does contradict the where an administrative has determination, Therefore, plain language jurisdiction exclusive over a the statute. only body that au- complaining party must adminis- Commission is the exhaust beverage per- alcoholic seeking trative before review in a thorized to issue remedies court; is also au- (although judge mits district and a district court lacks them).4 subject jurisdiction, deny See id. matter and must dis- thorized 61.33(a) (Vernon 26.03(a), §§ The party miss such claims until thе has procedures for requirement. this re - Code contains extensive satisfied Sw. Bell — (Tex. Co., -, hearings, determina- permit applications, Tel. S.W.3d determinations, 2007).1 tions, in- appeals of and See id. to the district courts. cluding A party agency’s cannot circumvent an §§ 11.01-75.05 jurisdiction by filing exclusive a declarato- clearly provisions of these indi- language ry subject action if the matter of regulatory pervasive cates this Legisla- the action is one over which the is intended to be the exclusive scheme agency ture intended administrative seeking litigating alcoholic means jurisdiction. exercise exclusive Blue Cross beverage permits. Duenez, Blue Shield (Tex.2006).2 sought An from Because cеrtification administrative agency by Supermercado step one has exclusive when the Legislature authority process, grants permit application it the sole to this related di only rectly process, make initial in a and arises an determination matter pervasive regulatory application, scheme indi- connection with such declaratory judgment cates that the action involves the Legislature intended regulatory process subject as that over which the be the exclusive same means remedying problem to which Commission has exclusive *6 Duenez, 676; regulation addressed. at 201 at Sells v. Id. 675-76. See S.W.3d Roose, 641, (Tex.App.-Aus it is not essential that the S.W.2d 643 stat- 769 writ). Therefore, 1989, express grant ute contain an of exclusive tin no because Su jurisdiction to the agency.3 permercado had not exhausted its adminis remedies, court lacked trative the district specifically provided Unless otherwise subject the declar matter over Code, distribution, sale, transpor- action,5 atory judgment and we should re tation, possession of alcoholic bever- verse the of the trial court and ages “governed exclusively” by lack of order the case dismissed for sub Code. Tex. Aleo. Bev.Code Ann. 1.06 ject (Vernon 2007). sell, person may pos- No sale, distribute, purpose sess for the per- has liquor, unless he obtained 26.03(a); privilege. §§
mit
this
Code,
Under the
385,
case,
Bd„
quor
417 S.W.2d
385-86
1.Though
applicable
excep
Control
(Tex.1967).
rule
instances
tions to
exhaustion
include
legal
in which an official has acted without
334,
Long,
v.
2. See Thomas
342
statutory authority,
agency
the administrative
jurisdiction,
lacks
or an administrative order
right
adversely
violates
constitutional
af
Thomas,
at
3. See