AVO Shopping intended to apply for a package store permit with the Texas Alcoholic Beverage Commission for a premises located within the City Limits of Houston. They submitted a certification packet to the City, requesting determination “whether the location or address given in the request is in a wet area and whether the sale of alcoholic beverages for which the permit is sought is prohibited by charter or ordinance.” Tex. Alco. Bev. Code § 11.37(b). This packet is part of a process to apply for package store permit. Failure to provide same may be grounds for TABC to withdraw a pending application. See, 16 Tex. Admin. Code § 33.3(d). The consequence of which is withdrawn applications are not subject to any due process protections, because a withdrawal of an incomplete application is licensing decision. See, 16 Tex. Admin. Code § 33.57.
The City denied the application. AVO Shopping appealed to the County Judge. See, Tex. Alco. Bev. Code § 11.37(d). The County Judge denied the appeal. AVO Shopping filed a petition for review pursuant to Tex. Gov’t Code § 2001.176 and Tex. Alco. Bev. Code § 11.67, naming the Texas Alcoholic Beverage Commission as the defendant. The Commission filed a plea to the jurisdiction. Trial court granted the plea to the jurisdiction and dismissed the case for want of prosecution.
In affirming the Trial Court’s dismissal, the Court of Appeals held that county judge wet dry determinations are not appealable under Tex. Alco. Bev. Code § 11.67 because the county judge is “not acting on behalf of the TABC but only on behalf of the locality” and the statute does not “expressly authorize further review”. ASC Beverages, LLC v. Tex. Alco. Bev. Comm’n, No. 01-22-00297 (Tex. App.—Houston [1st Dist.] Feb. 15, 2024, pet. denied). However, the Court also acknowledged that an aggrieved applicant for a wet dry certification is not without relief either, and could still pursue declaratory judgment against the City under the Uniform Declaratory Judgment Act.
