                          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

                                    ------------

           FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      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




      1
           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




                                       2
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

                                       3
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.

                                       4
      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



                                        5
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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