Untitled Texas Attorney General Opinion

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Honorable J. A. Stanford Opinion T?O.``-1365
Assistant Administrator
Texas Liquor Control Board S!!!
: Whether, on appeal from a
231 East 14th Street judgment restraining the
Austin, Texas Liquor Control Board, the
judgment may be superseded.
Dear Mr. Stanford:
You recently requested an opinion of this office on the
following question concerning the judgment entered in Cause No.
123,485, in the 53rd District Court of Travis County, Texas, styled
Ammex Warehouse Company, Inc. v. Texas Liquor Control Board, et al.:
"Since an appeal has beeintaken from this judgment,
may this judgment be superseded so that the Board
may proceed to enforce the Texas Liquor Control Act
with respect to present antifuture violations of
said act by Ammex Warehouse Companjr,Inc., and
other persons doing business with Ammex Warehouse
Company, Inc., until such time as the Appellate Court
renders its decisln on the appeal':
Article 22.76,Vernon's Civil Statutes, provides:
"Neither the State of Texas, nor any county In the
State of Texas, nor the Railroad Commission of Texas,
nor the head of any dcnartment of the State of Texas,
prosecuting or defending in any action in their official
capacity, shall be required to give bond on any appeal
or writ of error taken by it, or either of them, in any
civil case.
"Executors> administrators and guardians appointed
by the courts of' this State shall not b,erequlred to give
bond on any appeal or writ of error taken by them in
their fiduciary capacity."
See also Article 2372 and Article 279a, Vernon's Civil Statutes.
We first considerwhether the Texas Liguor Control Board
and Its Admlnistratcr fall wlthin th: terms of the statute as "the
head of any department of the State. Cases have held that the
following are heads of the departments of the State and come under
Honorable J. A. Stanford, Page 2 (``-1365)
the purview of this Article; Comptroller of Public Accounts, in
a case involving a liquor license, Lane v. Hewgley, 155 S.W. 346
(Civ.App.), Commissioner of Insurance and Banking, Collier2;.
Smith, 169 S.W. 1108 (Civ.App.), Hall v. Eastland County 4
S.W. 1113 (Civ.App.), Prison Commission of the State of !Cexas,
Herring v. Houston National Exchange Bank, 113 Tex. 264, 253 S.W.
813, Texas Teacher Retirement Board,
v. Duckworth, 153 Tex. 141, 260 S.W.
153 Tex. 141, 264 S.W.2d 98. These cases are Indicative and we
therefore hold that the Texas Liquor Control Board is a department
of the State,of Texas included within the meaning of Article 2276
and as such is not required to give bond on any appeal or writ
of error taken by it under the terms of the statute.
The judgment attached to your opinion request was a
comprehensive judgment entered on May 21, 1962. This judgment
grants a permanent injunction against "The Texas Liquor Control
Board, Summers A. Norman, W.D. Noel, and Wilson Heard, Jr., who
together constitute the Texas Liquor Control Board, Coke Stevenson,
Jr., Administrator of the Texas Liquor Control'Act, and James
Stanford, Assistant Administrator of the Texas Liquor Control Act,
jointly and severally at;yd
the~i:agents, employees, representatives,
officers and attorneys, from in any wise, directly or indirectly,
interfering with, controlling, regulating or prosecuting, either
civilly or criminally, the Plaintiff, Ammex Warehouse Company,
Inc., in the operating al;ld
conducting of its business anywhere in
the State of Texas . . . The judgment also included the follow-
ing paragraph:
"To each of which findings, rulings and judgment
the defendants, then and there, in open court, duly
excepted, and gave notice of appeal to the Court of
Civil Appeals for the Fif;h Supreme Judicial District,
sitting at Austin, Texas.
This judgment, Including the permanent injunction, Is very similar
to the judgment and injunction granted In the lower court and con-
sidered in Railroad Commission of Texas v. Jack Roberts, 332 S.W.
2d 745 (Ci.v.App.1960) in which case the trial court had enjoined
the Railroad Commission of Texas against carrying Into effect one
of its orders. The Railroad Commission gave notice of appeal to
the trial court's judgment and then proceeded to Implement the
order. The trial judge issued an ancillary temporary restraining
order against the Railroad Commission's action In carrying out its
order after the granting of the permanent Injunction. The Court
of Civil Appeals In that case, at page 749, said:
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Honorable J. A. Stanford, Page 3 (``-1365)
"The effect of notice of appeal by and on behalf
of the Railroad Commission was to supersede the final
judgment entered by the 126th District Court on Febru-
ary 3, 1960. Article 2276, Vernon's Ann. civ. St.;
3 Tex.Jur.2d, Appeal and Error--Civil, Sec. 354, p. 612."
The writ of prohibition requested by the Railroad Commission was
not Issued because the court was certain that the judge would
comply with the,opinion without the issuance of a'forma; w,U&t,;f
prohibition. See also Inmann v. Texas Land and MortPaa 0 Y
74 S.W.2d 124 (Civ.App., 1934) and Wallace v. Adams, 243 S.W. '
572 (Civ.A~p., 1922, error dism.).
It is therefore our opinion under the authorities cited
that when appeal was perfected by the State Liquor'Control Board
by giving notice of appeal in open court, which notice was Included
In the judgment, the judgment was superseded. The Texas Liquor
Control Board may therefore proceed to enforce the Texas Liquor
Control Act as their best judgment indicates against all parties
to that suit.
The Texas Liquor Control Board being a department of
ihe State Is not required to post supersedeas bond in
order to effectively supersede a final judgment of a
trial court. When the appeal was perfected from a
judgment against this State agency the judgment at
that point was effectively superseded and the Texas
Liquor Control Board may proceed to enforce the Texas
Liquor Control Act.
NVS:JKR
Honorable J. A. Stanford, Page 4 (``-1365)
APPROVED:
OPINION COMMITTEE:
W. V. Geppert, Chairman
Gilbert Hargrave
Llnward Shivers
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore