Texas Alcoholic Beverage Commission v. Navy Club, U. S. A. , 1976 Tex. App. LEXIS 2462 ( 1976 )

MOORE, Justice.

Appellant, Texas Alcoholic Beverage Commission, complains of the judgment of the 166th District Court of Bexar County which ordered appellant to renew the exemption certificate and beverage cartage permit of appellee, Navy Club, U. S. A. Alamo Ship, 106.

On December 4,1974, the Texas Alcoholic Beverage Commission refused and denied, pursuant to Article 666-11, Tex.Penal Aux. Laws (1974), appellee’s application for renewal of the Private Club Exemption Certificate Permit and the Beverage Cartage Permit held by appellee. On December 6, 1974, appellee appealed the Commission’s order to the District Court and on that same day the trial judge issued a stay order restraining appellant from enforcing the order of December 4, 1974. The stay order also set the case for a December 13, 1974 hearing. On December 13, 1974, appellee filed a motion for continuance which the trial court granted and on January 2, 1975, appellee filed an additional motion for continuance which the trial court granted until January 31, 1975. The case was heard on the merits on January 31, 1975, and judgment entered on February 10, 1975.

The Texas Liquor Control Act provides that all cases involving an appeal from an order of the Alcoholic Beverage Commission refusing or cancelling a permit or license “shall be tried before the Judge within ten (10) days from the filing thereof, and neither party shall be entitled to a jury.” Tex. Penal Aux.Laws, art. 666-14(c). The section of the Act dealing with private clubs also contains the same 10-day provision for appeals, Tex.Penal Aux.Laws, art. 666-15e, 7a(c). In Cook v. Spears, 524 S.W.2d 290 (Tex.1975), the Supreme Court held the 10-day provision for private club appeals to be mandatory. The Supreme Court ruled that proceedings which occur more than 10 days after the filing of the appeal in the District Court are void. Cook v. Spears, supra, at 292.

Appellee filed its appeal on December 6, 1974. The cause was not tried before the Judge until January 31, 1975. Consequently, the proceedings which occurred more than 10 days after December 6, 1974, were void.

Accordingly, the judgment of the District Court is vacated.