Affirmed and Majority and Dissenting =
Opinions=20
filed December 18, 2007.
In The
Fourteenth=20
Court of Appeals
_______________
NO. 14-06-00472-CV
_______________
SUPERMERCADO TELOLOAPAN, =
INC.
D/B/A TELOLOAPAN MEAT MARKET,=20
Appellant
V.
CITY OF HOUSTON,=20
Appellee
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On Appeal from the 80th District=20
Court
Harris County, Texas
Trial Court Cause No.=20
05-60093
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D I S S E=20
N T I N G O P I N I O N
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In 2005, =
Supermercado, a=20
grocery store operator, applied to the Texas Alcoholic Beverage =
Commission=20
(the ACommission@) for an off-premise =
beer and=20
wine permit. To satisfy a condition for obtaining the =
permit,=20
Supermercado requested the City to certify that the location of =
its store=20
was in a Awet area@ and that the sale of =
beverages=20
there was not prohibited by ordinance. See Tex. Alco. =
Bev.=20
Code Ann. ' 61.37 (Vernon =
2007). =20
However, the City refused to certify the latter because it =
concluded that=20
a charter school was located less than the required 300 feet from =
the=20
store.
Supermercado =
thereafter sought=20
a declaratory judgment in the trial court that the applicable =
ordinance=20
and provision of the Texas Alcoholic Beverage Code (the =
ACode@) require that the =
distance be=20
measured in a different manner than the City measured it. =
After a=20
bench trial, the trial court denied the relief sought by =
Supermercado and=20
issued findings of fact and conclusions of=20
law.
Subject matter =
jurisdiction=20
exists only by operation of law and cannot be conferred by consent =
or=20
waiver. Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, =
140=20
S.W.3d 351, 358 (Tex. 2004). Therefore, a court is obliged =
to=20
ascertain that subject matter jurisdiction exists regardless =
whether the=20
parties have raised it. Id.
Texas district courts =
generally=20
have jurisdiction over all actions except those for which =
jurisdiction has=20
been conferred on some other court, tribunal, or administrative=20
body. Tex. Const. art. V, ' 8. Therefore, =
where an=20
administrative agency has exclusive jurisdiction over a =
determination, a=20
complaining party must exhaust administrative remedies before =
seeking=20
review in a district court; and a district court lacks subject =
matter=20
jurisdiction, and must dismiss any such claims until the party has =
satisfied this requirement. In re Sw. Bell Tel. Co., =
__=20
S.W.3d __, __ (Tex. 2007).
A party cannot =
circumvent an=20
agency's exclusive jurisdiction by filing a declaratory judgment =
action if=20
the subject matter of the action is one over which the Legislature =
intended the administrative agency to exercise exclusive=20
jurisdiction. Blue Cross Blue Shield of Tex. v. =
Duenez, 201=20
S.W.3d 674, 675 (Tex. 2006). An=20
administrative agency has exclusive jurisdiction when the =
Legislature=20
grants it the sole authority to make an initial determination in a =
matter=20
and a pervasive regulatory scheme indicates that the Legislature =
intended=20
for the regulatory process to be the exclusive means of remedying =
the=20
problem to which the regulation is addressed. =
Id. at=20
675B76. However, it =
is not=20
essential that the statute contain an express grant of exclusive=20
jurisdiction to the agency. =
Unless otherwise =
specifically=20
provided in the Code, the sale, distribution, transportation, and=20
possession of alcoholic beverages is Agoverned=20
exclusively@ by the Code. =
Tex. Alco.=20
Bev. Code Ann. =
' 1.06 (Vernon =
2007). No=20
person may sell, possess for the purpose of sale, distribute, or =
store=20
liquor, unless he has obtained a permit for this privilege. =20
Id. '' 26.03(a); 61.01 =
(Vernon 2007).=20
Under the Code, the Commission is the only body that is authorized =
to=20
issue alcoholic beverage permits (although a county judge is also=20
authorized to deny them). =20
See id. '' 26.03(a), 61.33(a) =
(Vernon=20
2007). The Code contains extensive procedures for permit=20
applications, hearings, determinations, and appeals of =
determinations,=20
including to the district courts. See id. =
'' 11.01-75.05 (Vernon=20
2007). The plain language of these provisions clearly =
indicates that=20
this pervasive regulatory scheme is intended to be the exclusive =
means of=20
seeking and litigating alcoholic beverage permits.
Because the =
certification=20
sought from the City by Supermercado was one step in this permit=20
application process, related directly to that process, and arises =
only in=20
connection with such an application, this declaratory judgment =
action=20
involves the same subject matter as that over which the Commission =
has=20
exclusive jurisdiction. See Duenez, 201 S.W.3d at =
676; =20
Sells v. Roose, 769 S.W.2d 641, 643 (Tex. App.CAustin 1989, no =
writ). =20
Therefore, because Supermercado had not exhausted its =
administrative=20
remedies, the district court lacked subject matter jurisdiction =
over the=20
declaratory judgment action, =
and we=20
should reverse the judgment
of the trial court =
and order=20
the case dismissed for lack of subject matter =
jurisdiction.
/s/ =20
Richard H. Edelman
Senior Justice
Judgment rendered and =
Majority=20
and Dissenting Opinions filed December 18, 2007.
Panel consists of =
Chief Justice=20
Hedges and Justices Fowler and Edelman.=20
(Hedges, C.J. majority).
=20
Though not applicable in this case, exceptions to the exhaustion =
rule=20
include instances in which an official has acted without legal or=20
statutory authority, the administrative agency lacks jurisdiction, =
or an=20
administrative order violates a constitutional right or adversely =
affects=20
a vested property right. See Tex. Natural Res. =
Conservation=20
Comm=3Dn v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); =
Tex. Educ.=20
Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, =
90 (Tex.=20
1992); Stone v. Tex. Liquor Control Bd., 417 S.W.2d 385,=20
385B86 (Tex. 1967).
=20
See Thomas v. Long, 207 S.W.3d 334, 342 (Tex.=20
2006).
=20
See Thomas, 207 S.W.3d at 340.
=20
See id. '' 61.31, 61.32, 61.34(a), 61.43(a) =
(Vernon=20
2007).
=20
See Duenez, 201 S.W.3d at 676.
=20
Senior Justice Richard H. Edelman, sitting by=20
=
assignment. |