NO CV IN THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS

NO. 05-10-00912-CV IN THE FIFTH DISTRICT COURT OF APPEALS AT DALLAS MELMAT, INC. D/B/A EL CUBO VS. TEXAS ALCOHOLIC BEVERAGE COMMISSION Appellant, Appellee. On Appeal from the 101st Judicial District Court, Dallas County, Texas The Honorable Martin Lowy, Presiding APPELLANT'S REPLY BRIEF Hilaree A. Casada Texas Bar Card No. 24027676 Richard Barrett-Cuetara Texas Bar Card No. 01812700 COWLES & THOMPSON, P.C. 901 Main Street, Suite 3900 Dallas, TX 75202 Telephone: (214) 672-2000 Facsimile: (214) 672-2020 ATTORNEYS FOR APPELLANT

TABLE OF CONTENTS Table of Contents... i Index of Authorities... ii Summary of the Argument... 1 Argument and Authorities... 1 I. The order should be vacated regardless of whether substantial evidence supports the order because the decision prejudices El Cubo s rights.... 2 II. The decision is not supported by substantial evidence.... 5 A. Specific intent is a necessary element here.... 5 B. The record does not contain even a scintilla of evidence to support the findings and conclusions.... 6 III. The TABC s review on rehearing is highly relevant and telling... 11 IV. A continuance was necessary to ensure due process.... 13 Conclusion... 14 Prayer... 15 Certificate of Service... 16 i

INDEX OF AUTHORITIES CASES Allen-Burch, Inc. d/b/a The Fare v. Tex. Alcoholic Beverage Commission, 104 S.W.3d 345 (Tex. App. Dallas 2003, no pet.)... 5 City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238 (Tex. App. Fort Worth 2007, pet. denied)... 12, 13 City of El Paso v. Public Util. Comm n, 883 S.W.2d 179 (Tex. 1994)... 2 Fay-Ray Corp. d/b/a Chequers v. Tex. Alcoholic Beverage Commission, 959 S.W.2d 362 (Tex. App. Austin 1998, no pet.)... 5 In re Hecht, 213 S.W.3d 547 (Tex. 2006)... 8, 9 In re: Nouveau Entertainment, Inc. d/b/a Axis, Docket No. 458-02-3391 at 21... 5 Lewis v. Metropolitan Sav. & Loan Ass n, 550 S.W.2d 11 (Tex. 1977)... 1, 12, 15 Longaker v. Evans, 32 S.W.3d 725 (Tex. App. San Antonio 2000, pet. withdrawn)...8, 10 Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93 (Tex. App. Dallas 2009, pet. denied)... 6, 8, 9 Potter v. Sun Oil Co., 189 S.W.2d 482 (Tex. 1945)... 11 Robinson v. Brannon, 313 S.W.3d 860 (Tex. App. Houston [14th Dist.] 2010, no pet. h.)... 8, 9-10 Tex. Alcoholic Bev. Comm n v. Top of the Strip, Inc., 993 S.W.2d 242 (Tex. App. San Antonio 1999, pet. denied)... 2 Wishnow v. Tex. Alcoholic Beverage Commission, 757 S.W.2d 404 (Tex. App. Houston [14th Dist.] 1988, writ denied)... 6 ii

STATUTES TEX. ALCO. BEV. CODE 11.61(b)(4) (Vernon Supp. 2009)... 5 TEX. GOV T CODE 2001.174(2)... 15 TEX. GOV T CODE 2001.175(e)... 13 iii

SUMMARY OF THE ARGUMENT Although it is admittedly difficult to prevail under a substantial evidence review, El Cubo should prevail here because the TABC did not meet its burden of proof. Specifically, the TABC presented no evidence of the requisite specific intent. In addition, the ALJ and the TABC improperly disregarded competent, undisputed evidence that undermined the decision to cancel El Cubo s permits. Moreover, the existence of substantial evidence is ultimately irrelevant here because the Commission s findings, inferences, conclusions, and decisions prejudice El Cubo s rights. On appeal, the TABC again supports its decision to cancel El Cubo s permits, even those permits unrelated to the food and beverage sales issue, by disregarding mitigating factors and undisputed evidence in favor of arguing that the decision was within its discretion. Simply put, the ruling is unreasonable, arbitrary, capricious, discriminatory, and without foundation. El Cubo urges the Court to reverse the underlying orders. ARGUMENT AND AUTHORITIES Over thirty years ago, the Texas Supreme Court succinctly summarized the scope and importance of this Court s review: Broadly speaking, the substantial evidence rule is a court review device to keep the courts out of the business of administering regulatory statutes enacted by the Legislature; but it remains the business of the courts to see that justice is administered to competing parties by governmental agencies. Lewis v. Metropolitan Sav. & Loan Ass n, 550 S.W.2d 11, 13 (Tex. 1977). Justice was not administered to El Cubo here. On the contrary, the cancellation of El Cubo s permits, 1

which became a death penalty, was not supported by the evidence and was unreasonably harsh. I. The order should be vacated regardless of whether substantial evidence supports the order because the decision prejudices El Cubo s rights. Texas law is clear that an order supported by substantial evidence must still be reversed as arbitrary and capricious if the agency failed to consider a factor the legislature directed it to consider, considered an irrelevant factor, or reached an unreasonable result. Tex. Alcoholic Bev. Comm n v. Top of the Strip, Inc., 993 S.W.2d 242, 252 (Tex. App. San Antonio 1999, pet. denied) (citing City of El Paso v. Public Util. Comm n, 883 S.W.2d 179, 184 (Tex. 1994)). El Cubo presented the Court with nine pages of argument addressing multiple reasons why the decision in this case must be reversed as arbitrary and capricious. (Appellant s Brief at 14-23). Instead of addressing the many undisputed facts and mitigating factors that undermine the cancellation order, the TABC responds simply that the penalty imposed falls within the TABC s discretion, and the ALJ had discretion to deny El Cubo s motion for continuance. (Appellee s Brief at 3, 16-19). That response illustrates a larger, institutional problem. Namely, that the TABC is more interested in cancelling licenses then educating its licensees so that they can become successful, compliant businesses. evidence: The TABC fails to acknowledge and address the following undisputed, relevant 1. Ms. Chu was cooperative and took steps to comply with the Code: Ms. Chu cooperated with Mr. Boyer during his audit, attempted to comply with the Code by hiring a consultant to assist her in preparing her renewal 2

application and by responding promptly to Mr. Boyer s warnings and requests regarding food service at El Cubo. (3 RR 1761-1762, 1778-1779, 1782-1784, 1875-1878). Following the audit, Ms. Chu decided not to renew the food and beverage permit because her food sales did not justify her continuing to operate as a restaurant. (3 RR 1878-1880; CR 67). 2. El Cubo did not intentionally or knowingly violate the Code: Mr. Simpson presented credible, undisputed testimony that El Cubo and Ms. Chu did not intentionally or knowingly provide false or misleading information, did not intentionally violate the Code, and that a complaint had been filed against the Commission on her behalf. (3 RR 1872-1880, 1883). Mr. Boyer admitted that there was no evidence of a false or misleading intent by Ms. Chu. (3 RR 1778-1779). Mr. Boyer agreed that Ms. Chu is attempting to comply with the TABC, and her latest renewal application shows this. (3 RR 1761-1762, 1783-1784). 3. Cultural and language barriers impacted El Cubo s ability to provide the information requested by the TABC for the food and beverage permit audit: Mr. Boyer admitted that Ms. Chu did not understand all of what he communicated to her. (3 RR 1745, 1765, 1812). Mr. Boyer stressed the need for accurate and complete information from the permittee, yet took no steps to work with Ms. Chu to get the needed information. (3 RR 1808-1812). Instead, he simply reiterated his requests, despite acknowledging that Ms. Chu likely did not understand those requests. (3 RR 1745, 1765, 1835). Mr. Boyer chose not to find a Korean translator to assist him in communicating with Ms. Chu, and he chose not to ask if Ms. Chu had a CPA who could be his liaison even though he had routinely asked this question of other permittees in the past. (3 RR 1808-1812). 3

Cultural and language barriers made it difficult for Ms. Chu, a Korean, to understand the allegations against her and to understand the settlements regarding prior violations. (3 RR 1875-1876). Regardless of whether the TABC was required to prove a specific intent (see discussion at 5-6 below), Ms. Chu s lack of intent certainly supports the imposition of a lesser penalty. In addition, the ALJ and the TABC improperly considered and relied on prior warnings regarding food sales and settlement of prior violations unrelated to the renewal applications. The former should not have been considered or relied on by the ALJ or the Commission because it is undisputed that El Cubo took steps to comply with food service requirements following those warnings. (3 RR 1761-1762). As such, the prior warnings provide no evidentiary support for the determination that El Cubo provided false or misleading statements or that El Cubo s alcoholic beverage sales exceeded 50% of gross sales. Reliance on the latter was similarly flawed. The alleged violations raised in the parallel proceeding were not admitted into evidence here and were wholly unrelated to any statements regarding the amount of food and alcoholic beverage sales. Those prior warnings, thus, provide no evidentiary support for the determination that El Cubo provided false or misleading statements or that El Cubo s alcoholic beverage sales exceeded 50% of gross sales. 4

This evidence supports a finding that the cancellation order was arbitrary and capricious. Unlike the cases 1 relied on by the TABC, this case involves no conduct affecting the public safety nor does it involve lewd conduct. Simply put, a business should not have been shut down based on the unintentional mistakes of a neophyte business owner who, after realizing the mistake, has corrected it and moved into compliance. The TABC s indifference to the cultural and language barriers present here set El Cubo up for failure. That result is contrary to the Commission s stated goals, is inequitable, and further supports reversal here. II. The decision is not supported by substantial evidence. The decision should also be reversed because it is not supported by substantial evidence. The TABC was required to prove specific intent but failed to present any competent evidence of such intent. Rather, the evidence relied on was purely speculative. A. Specific intent is a necessary element here. To prove El Cubo violated section 11.61(b)(4), the TABC was required to prove by a preponderance of the evidence that the permittee made a false or misleading statement in connection with her original or renewal application. TEX. ALCO. BEV. CODE 11.61(b)(4) (Vernon Supp. 2009). To do so, the TABC was required to prove specific intent. By definition, false means the person knew the statement was wrong. See Proposal for Decision in In re: Nouveau Entertainment, Inc. d/b/a Axis, Docket No. 458-02-3391 at 21. Accordingly, by including the word false in the statute without defining 1 Allen-Burch, Inc. d/b/a The Fare v. Tex. Alcoholic Beverage Commission, 104 S.W.3d 345, 352-353 (Tex. App. Dallas 2003, no pet.); Fay-Ray Corp. d/b/a Chequers v. Tex. Alcoholic Beverage Commission, 959 S.W.2d 362, 368-39 (Tex. App. Austin 1998, no pet.). 5

it, the Legislature necessarily required a showing of actual knowledge because the plain meaning of false requires knowledge. Indeed, even statutes that do not affirmatively require a showing of actual knowledge require application of the knew or should have known standard. Wishnow v. Tex. Alcoholic Beverage Commission, 757 S.W.2d 404, 409-410 (Tex. App. Houston [14th Dist.] 1988, writ denied). Moreover, the ALJ found specific intent when it determined that El Cubo knowingly made false statements in the application for renewal on December 2, 2008 with intent to deceive. (CR 46). The TABC s argument that specific intent is not particularly relevant, and is certainly not determinative 2 is, therefore, spurious. (Appellee s Brief at 9). B. The record does not contain even a scintilla of evidence to support the findings and conclusions. The TABC relied solely on the testimony and audit analysis of Mr. Boyer to support cancellation. That testimony and the evidence presented in support does not amount to even a scintilla because it is based on assumption and speculation. See Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 108 (Tex. App. Dallas 2009, pet. denied) (... speculation and surmise do not constitute more than a scintilla of evidence. ). First, the TABC s contention that the audit reflects only hard numbers is incorrect. On the contrary, the only hard numbers included in Mr. Boyer s analysis were the amounts of beer and spirits purchased by El Cubo. The audit contained no competent evidence of the amount of beverages actually sold or the sales price of each unit sold. 2 Appellee s Brief at 9. 6

Rather, Mr. Boyer s closing inventory numbers were based on his site inspection after the end date of the audit period. (3 RR 1724-1725). In other words, Mr. Boyer does not know what the closing inventory as of the end date of his analysis. Indeed, he does not know whether any or all of the missing inventory was even sold at all because he did not provide for allowances from complimentary drinks or conduct a complete inventory. (3 RR 1726). Although Mr. Boyer blames El Cubo for not providing him with information for such allowances, he admits that such allowances are sometimes taken into account and that he knew that Ms. Chu did not understand all of his requests, one of which was a request for records pertaining to complimentary alcoholic beverages. (3 RR 1726, 1745, 1765, 1812, Ex. 2). All per unit pricing was also assumed. (3 RR 1773, 1780-1781). Not only did Mr. Boyer not take into account happy hour pricing, 3 he also charged the same amount for domestic beer and imported beer, even though he admitted that imports are usually more expensive. (3 RR 1726-1727, 1773). Although Mr. Boyer took issue with the accuracy of the alcoholic beverage numbers provided by Ms. Chu, he relied solely on the food sales numbers provided by Ms. Chu in order to determine the ratio between sales of food and alcohol. (3 RR 1768). That reliance undoubtedly resulted in a skewed ratio because any mistakes made by Ms. Chu related to the beverage numbers would also apply to the food numbers. Indeed, since those numbers were likely estimates only, 4 they should not have been used to determine the ratio between food and 3 The record does contain evidence of happy hour pricing. (3 RR 1813-1815, 1868-1871). 4 See Appellant s Brief at 10-11 7

beverage sales. 5 Simply put, Mr. Boyer s conclusions are based on assumed facts and numbers. As such, those conclusions do not rise to the level of a scintilla. Second, the reasoning behind the determination that El Cubo s actions were not a simple mistake are supported solely by speculation. The TABC states in its brief that El Cubo s actions... were not viewed by the TABC or the ALJ as a simple mistake because there are benefits to holding a food and beverage certificate; namely, that a restaurant is exempt from prosecution as a nuisance and is granted local privileges not available to a bar. (Appellee s Brief at 15-16). But Mr. Boyer s assumption that it seemed like they were done just to maintain and keep the food and beverage certificate has no factual support. (3 RR 1748-1749). Rather, Mr. Boyer (and, according to Appellee s Brief, also the TABC and the ALJ) simply assumed that El Cubo intentionally submitted false information because having that certificate was presumably beneficial to El Cubo. Mr. Boyer s speculation does not constitute even a scintilla of evidence. Several cases illustrate this point. In re Hecht, 213 S.W.3d 547, 577 (Tex. 2006); Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93, 108 (Tex. App. Dallas 2009, pet. denied); Robinson v. Brannon, 313 S.W.3d 860, 867-868 (Tex. App. Houston [14th Dist.] 2010, no pet. h.); Longaker v. Evans, 32 S.W.3d 725, 736-737 (Tex. App. San Antonio 2000, pet. withdrawn). 5 The TABC s assertion that Mr. Boyer saw no ongoing food sales is incorrect. Mr. Boyer testified that he noted improvements and compliance in food service after his initial reviews. (3 RR 1761, 1762). 8

In Hecht, the State Commission on Judicial Conduct initiated an investigation into statements made by the Honorable Nathan Hecht in relation to the nomination of Harriet Miers to the United States Supreme Court. In re Hecht, 213 S.W.3d at 552. The Commission determined that Justice Hecht had violated Canons 2B and 5(2) of the Texas Code of Judicial Conduct by lending the prestige of judicial office to advance Miers private interests and by authorizing the use of his name endorsing Miers nomination. Id. at 552-553. The Commission identified Miers private interests as political ambition and the power and prestige of the position. Id. at 577, n. 44. The Special Court noted that the Commission s argument was purely speculative and did not provide even a scintilla of evidence of political ambition: The flaw in the commission's position is that it assumes but does not prove political ambition. The commission has failed to even attempt to provide a scintilla of evidence of Miers political ambition, and thus, failed to prove Petitioner advanced Miers private interests. Id. at 577, n. 44. The same logic applies here. The TABC relies on Mr. Boyer s statement that a food and beverage permit provides tangible benefits to business owners to argue that those benefits caused Ms. Chu to knowingly submit false sales numbers. That evidence and argument, like the Commission s arguments in Hecht, merely assumes the fact it seeks to prove (i.e., knowing conduct). That evidence does not constitute even a scintilla of evidence and, thus, does not support the ALJ s and the TABC s orders. See also Pinnacle Anesthesia, 309 S.W.3d at 108 (holding that arguments based on speculation related to motive did not constitute a scintilla of evidence); Robinson, 313 S.W.3d at 867-9

868 (holding that speculation constituted less than a scintilla of evidence to defeat summary judgment); Longaker, 32 S.W.3d at 736-737 (holding that speculation that a party manipulated another s estate to benefit himself constituted no evidence that such manipulation actually occurred). There is no evidence that Ms. Chu chose to submit false numbers to retain the food and beverage certificate. In fact, the only competent evidence regarding the reasoning behind the numbers submitted on the application came from Mr. Simpson and was disregarded by the ALJ and the TABC. Specifically, Mr. Simpson testified that he believes Ms. Chu made a mistake caused by ignorance, that Ms. Chu does not believe she made a false statement, only that she made a mistake, that Ms. Chu did not know how detailed she had to be with her records, that he had to go back to the primary level with her to teach her what she needed to do, and that her motivation was not to provide misleading statements to keep the permit. (3 RR 1878-1880, 1886). following: The ALJ and the TABC improperly disregarded that testimony, as well as the Mr. Simpson s testimony that Ms. Chu did not intentionally violate the Code. (3 RR 1878-1880, 1886). The fact that the renewal application permitted the use of projections and any estimates on the 2008 renewal could not represent a year s worth of sales because El Cubo had not yet been open for business for a year. (CR 64; 3 RR 1721). Mr. Boyer s admission that it was not unlikely that Ms. Chu, due to her language barrier, did not completely understand what numbers were supposed to be reported to the TABC and the Comptroller. (3 RR 1745, 1765, 1778, 1782-1784). 10

Mr. Boyer s admission that Ms. Chu s most recent renewal application includes sales estimates that are coming closer to what he would expect from his audit. (3 RR 1761-1762, 1783-1784, 1827). The statements in the 2008 renewal application were made by a consultant hired by El Cubo to prepare the renewal application and even Mr. Boyer admitted that it was logical for Ms. Chu to rely on the consultant to accurately complete the application. (3 RR 1778, 1779, 1823-1825). The fact that the most recent renewal sought renewal as a bar only. (CR 67). These facts undermine the ALJ s findings and were improperly disregarded by the ALJ and the TABC. III. The TABC s review on rehearing is highly relevant and telling. The TABC understandably dislikes El Cubo s view of the order on rehearing and counsel s conclusion that there was, at a minimum, an appearance of impropriety here. However, the TABC s argument that these concerns are not reviewable because they are not present in the administrative record is illogical and, if followed, would provide the TABC with the ability to abuse its position and unilaterally violate the constitutional rights of permittees without any threat of negative repercussions or reversal. First, the tenor of the order on rehearing speaks for itself. A cold reading of the order alone shows that it was written in a prosecutorial manner. (CR 51-54). Moreover, the order contains alleged facts and evidence that are not supported by the record. (Appellant s Brief at 26-27). The TABC is required to treat parties fairly and impartially. Potter v. Sun Oil Co., 189 S.W.2d 482, 584 (Tex. 1945). The order on rehearing illustrates that did not occur here. This is important because it goes directly to whether El Cubo s due process rights were violated. 11

For example, the Fort Worth Court of Appeals recently determined that the tenor of the fact-finders questions supported a finding that the club s procedural due process rights had been violated: The active, almost prosecutorial tone of the Board s comments, when combined with the inability to discern whether the Board impermissibly took into account public commentary that was not available for crossexamination, leaves the impression that the hearing was inherently unfair to appellees. Therefore, appellees conclusively proved that the Board's decision could not be upheld because it is arbitrary and capricious. City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 254 (Tex. App. Fort Worth 2007, pet. denied), citing Lewis v. Metro. Savings and Loan Assoc., 550 S.W.2d 11, 16 (Tex. 1977). The same is true here. The prosecutorial tone of the order, combined with the TABC s reliance on facts not within the administrative record, illustrate the arbitrary and capricious nature of the reasons for cancellation and the underlying proceedings. At a minimum, the rehearing process was flawed and resulted in a violation of procedural due process. Either way, the decision was arbitrary and capricious and should not be upheld. See Lewis, 550 S.W.2d at 16 ( There is arbitrariness where the treatment accorded parties in the administrative process denies them due process of law. ). The TABC s reliance on two cases from the El Paso Court of Appeals for the proposition that rehearings are not essential to due process is misplaced because they conflict with Lewis and Centerfolds, Inc., are not binding on this Court, and are factually distinguishable. Second, counsel s concerns that the TABC s prosecution division played an improper role in the Administrator s review of the case on rehearing is properly before the Court. The facts asserted on this issue are not wild factual allegations outside of the 12

record. (Appellee s Brief at 19). Rather, these facts were verified by El Cubo s counsel in pleadings filed in the trial court. (CR 19-20, 36). The concerns relate to the Administrator s review on rehearing. As such, the facts that formed the basis of those concerns necessarily came to light after the administrative hearing and, thus, could not be part of the administrative record. Indeed, these concerns were properly presented in the trial court as evidence of procedural irregularities not reflected in the record. TEX. GOV T CODE 2001.175(e). This issue is properly before the Court. IV. A continuance was necessary to ensure due process. El Cubo was entitled to procedural due process, which requires, at a minimum, notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Centerfolds, Inc., 232 S.W.3d at 250. It is undisputed that at the time of the hearing before the ALJ, the State Comptroller was reviewing El Cubo s financial records in order to complete a redetermination of the sales of alcoholic beverages. (3 RR 1895-1899). Mr. Boyer admitted that the results of that redetermination would impact his analysis and would, thus, have an impact on the TABC s claims against El Cubo. (3 RR 1831). Although the ALJ told El Cubo s counsel that he could present any evidence that he believed related to the merits of the false statement charges, it is reasonable to infer that El Cubo s counsel did not have access to the information presented to the Comptroller because (1) outside counsel represented El Cubo before the Comptroller, and (2) the information had been presented to the Comptroller only the day before the 13

administrative hearing. (Suppl RR 1896-1901). 6 In other words, a continuance would have been unnecessary had the information been available at the time of the hearing! The denial of the continuance, thus, prevented El Cubo from presenting its case in a meaningful way at a meaningful time. CONCLUSION The rulings appealed from are unreasonable, arbitrary, capricious, discriminatory, and without foundation. Moreover, the rulings and the TABC s administrative review of the rulings at the rehearing stage violated El Cubo s rights to due process. Cancelling El Cubo s permits and license has put the bar out of business and, thus, constitutes a death penalty. Such a harsh sanction was not warranted here. Indeed, the evidence relied on by the ALJ and the Commission is so weak that it does not support a finding that any violations occurred, let alone support the cancellation of El Cubo s permits. Moreover, if any action is warranted at all, several mitigating factors exist that call for the imposition of lesser sanctions. The result is especially egregious here because El Cubo s owner, Ms. Chu, is Korean and does not speak or understand English well. The language barrier and cultural differences severely impeded Ms. Chu s ability to understand how to run the business, what records to maintain, and what information to provide on renewal applications and to the TABC auditer. Without education and assistance from the TABC, El Cubo was doomed to failure. Such a result is inequitable 6 Argument regarding the motion for continuance occurred at the beginning of a parallel proceeding. Although the ALJ incorporated that argument by reference in what would become the reporter s record in this case, the record does not include that argument. El Cubo will request a supplemental record for the Court. The relevant pages can be found in Volume 2 of the Reporter s Record in Cause Number 05-10-00911-CV at pages 1895-1901. 14

in light of the undisputed evidence of El Cubo s desire and attempts to comply with the requirements of the Code. PRAYER El Cubo respectfully prays that the Court reverse the TABC s May 3, 2010 Order and remand to the TABC for determination of an award of El Cubo s reasonable and necessary attorneys fees. TEX. GOV T CODE 2001.174(2). Alternatively, El Cubo prays that the Court reverse the TABC s May 3, 2010 Order and remand the case to the TABC for a determination of lesser sanctions that do not include any degree of cancellation or suspension of El Cubo s permits or certificate. See Lewis, 550 S.W.2d at 16 (reversing and remanding for further proceedings consistent with the opinion). In the further alternative, El Cubo prays that the Court remand the case to the TABC for an unbiased review of the case on rehearing. El Cubo prays for such other and further relief to which it may be justly entitled. 15

Respectfully submitted, By: Hilaree A. Casada Texas Bar No. 24027676 Richard Barrett-Cuetara Texas Bar No. 01812700 COWLES & THOMPSON, P.C. 901 Main Street, Suite 3900 Dallas, TX 75202 Telephone: (214) 672-2177 Facsimile: (214) 672-2377 ATTORNEYS FOR APPELLANT CERTIFICATE OF SERVICE The undersigned certifies that on the 4th day of January, 2011, a true and correct copy of Appellant s Reply Brief was delivered via Certified Mail Return Receipt Requested to the counsel of record listed below. Mr. Nick Canaday Office of the Attorney General Price Daniel Sr. Bldg. P.O. Box 12548 Austin, TX 78711-2548 Hilaree A. Casada 16