COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-021-CV
TEXAS ALCOHOLIC
BEVERAGE COMMISSION APPELLANT
V.
I GOTCHA, INC., D/B/A
ILLUSIONS APPELLEE
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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The sole issue we address in this appeal is whether the trial court’s
judgment was void. Appellee I Gotcha, Inc., d/b/a Illusions, timely sued
Appellant the Texas Alcoholic Beverage Commission (TABC) in district court on
March 28, 2008 for judicial review of administrative penalties assessed against
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See Tex. R. App. P. 47.4.
it by TABC. See Tex. Alco. Bev. Code Ann. § 11.67 (Vernon 2007); Tex.
Gov’t Code Ann. §§ 2001.001–.902 (Vernon 2008) (the Administrative
Procedure Act). Section 11.67(b)(2) of the Texas Alcoholic Beverage Code
requires that a petition for judicial review of administrative penalties assessed
by TABC, like I Gotcha’s, be tried before a judge within ten days from the date
that the suit is filed in district court. See Tex. Alco. Bev. Code Ann. § 11.67.
The district court here conducted a bench trial on April 4, 2008, within ten
days after I Gotcha filed its suit for judicial review on March 28, 2008. At the
conclusion of the bench trial on April 4, 2008, the trial court pronounced from
the bench that it was remanding the case for determination of a factual issue
that existed and requested the lawyers to prepare an order to that effect. The
trial court likewise made a docket entry on the same day, noting that it had
reversed and remanded the case for additional findings. The trial court signed
a written judgment on December 23, 2008 that corresponded to its oral
pronouncement.
In a single issue on appeal, TABC argues that Texas Alcoholic Beverage
Code section 11.67(b)(2) required the trial court to sign a judgment within ten
days of the date that I Gotcha’s suit for judicial review was filed, or in other
words, by April 7, 2008. TABC argues that the trial court lost jurisdiction over
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the case on April 8, 2008 and that, consequently, its December 23, 2008
judgment is void.
The provision of the alcoholic beverage code relied upon by TABC
provides, in pertinent part:
(b) The appeal shall be under the substantial evidence rule and
against the commission alone as defendant. The rules applicable
to ordinary civil suits apply, with the following exceptions, which
shall be construed literally:
...
(2) the case shall be tried before a judge within 10 days from
the date it is filed;
Id. (emphasis added). The Texas Supreme Court has construed this statutory
ten-day provision to require the trial court to both conduct the trial and to
render judgment within the statutory ten-day period. Garza v. Tex. Alcoholic
Beverage Comm’n, 89 S.W.3d 1, 5–6 (Tex. 2002). Rendition of judgment,
however, occurs “when the decision is officially announced orally in open court,
by memorandum filed with the clerk, or otherwise announced publicly.” Id. at
6. In Garza, because “nothing in the record show[ed] that the district court
rendered judgment orally in open court, or otherwise publicly announced its
decision, before the ten-day deadline expired,” the supreme court held that the
trial court’s judgment signed outside the ten-day period was untimely. Id. at
5–7. The supreme court in Garza expressly noted, however, that “regardless
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of how rendition occurs, section 11.67 does not prevent a district court from
performing the ministerial act of memorializing a timely rendition in a signed
judgment after the ten-day period has passed.” Id. at 2; see also Fox v. Medina,
848 S.W.2d 866, 870–71 n.3 (Tex. App.—Corpus Christi 1993, no writ)
(holding that trial court not required to sign judgment within section 11.67’s
ten-day period when court holds hearing and renders oral judgment within such
time period). 2
Here, the trial court orally rendered judgment on the record at the
conclusion of the trial. The trial court explained that the administrative law
judge had failed to make a finding of fact on whether a touching had occurred
or had not occurred and explained that without such a finding the trial court
could not determine whether the administrative law judge’s conclusions of law
were correct. The trial court further stated on the record that “under the rule
here” it was authorized to remand for additional fact findings, and the court
then rendered judgment:
So, I can tell you right now, without taking this case under
advisement or deciding it or looking at anything further, that that,
to me is conflict—it’s not really conflict, yet it’s really more of
a—something that needs to be clarified [in TABC’s findings]. So if
2
Consequently, we reject TABC’s contention that oral rendition of
judgment in this case was not proper.
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someone can prepare an order to that effect that’s what I’m going
to do with this case.
TABC contends that the trial court’s oral pronouncement of its decision
is nontheless not a rendition of judgment because (1) the trial court’s words
were merely a discussion with counsel and (2) the trial court indicated a future
intent to sign a judgment. The TABC cites S & A Restaurant Corp. v. Leal, 892
S.W.2d 855 (Tex. 1995). We have carefully reviewed the Leal opinion. That
opinion supports the proposition that the trial court’s pronouncement on the
record of its decision in this case was a rendition of judgment. In Leal, the trial
court announced on the record that it was approving a settlement agreement
but reserved rendition of judgment by stating, “You realize that once this
Judgment is signed and I approve it, everything else, it’s full, final and
complete?” Id. at 857.
Contrary to the trial court in Leal, the trial court here expressly refused
to withhold rendition of judgment. The trial court here expressly stated that it
did not need to take the case under advisement and did not need to look at
anything further. The trial court here affirmatively stated that it was not
deciding the case on the merits but had instead decided to remand the case for
an additional fact finding, “that’s what I’m going to do with this case.” The
fact that the ministerial act of signing a written judgment remained to be
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performed did not make the trial court’s oral, on-the-record rendition of
judgment any less of a rendition. See Garza, 89 S.W.3d at 5 (recognizing that
“regardless of how rendition occurs, section 11.67 does not prevent a district
court from performing the ministerial act of memorializing a timely rendition in
a signed judgment after the ten-day period has passed”).
We overrule TABC’s sole issue and affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: LIVINGSTON, GARDNER, and WALKER, JJ.
DELIVERED: January 7, 2010
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