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Honorable J. A. Stanford Opinion T?O. ~~-1365 AssistantAdministrator Texas Liquor Control Board S!!! : Whether, on appeal from a 231 East 14th Street judgmentrestrainingthe Austin, Texas Liquor Control Board, the judgmentmay be superseded. Dear Mr. Stanford:

You recently requested an opinion of this office on the following question concerning the judgmententered in CauseNo. 123,485, in the 53rd District Court of Travis County, Texas, styled AmmexWarehouse Company, Inc. v. Texas Liquor ControlBoard, et al.:
"Sincean appeal has beeintaken from this judgment, may this judgmentbe superseded so that the Board may proceed to enforce the Texas Liquor Control Act with respect to present antifutureviolations of said act by Ammex Warehouse Companjr, Inc., and other persons doing business with AmmexWarehouse Company, Inc., until such time as the Appellate Court renders its decisln on the appeal':
Article 22.76,

Vernon's Civil Statutes,provides:
"Neitherthe 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

> administratorsand guardians appointed by the courts of'this State shallnot b,erequlred to give bond on any appeal or writ their fiduciary capacity." of error taken by them in

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 statuteas "the head of any department of the State. Cases have held that the followingare heads of the departments of the State and come underHonorable 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 Smith, 169 S.W. 1108 (Civ.App.),Hall v. Eastland County (Civ.App.),Commissioner of Insurance and Banking, Collier2;. 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 TeacherRetirementBoard,
v. Duckworth, 153 Tex. 141, 260 S.W. 153 Tex. 141, 264 S.W.2d 98. These cases are Indicative and we thereforehold that the Texas Liquor ControlBoard is a department of the State,of Texas includedwithin 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 judgmentattached to your opinion request was a comprehensive judgmententered on May 21, 1962. This judgment grants a permanent injunctionagainst "TheTexas Liquor Control Board, Summers A. Norman,W.D. Noel, andWilson Heard, Jr., who together constitute the Texas Liquor Control Board, Coke Stevenson, Jr., Administratorof the Texas Liquor Control'Act,and James Stanford,AssistantAdministratorof the Texas Liquor Control Act, jointlyand severallyat;yd the~i: agents, employees,representatives, officers and attorneys, from in any wise,directly or indirectly, interferingwith, 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 judgmentalso included the following paragraph:

"Toeach 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 JudicialDistrict, sittingat Austin, Texas.
This judgment, Including the permanent injunction, Is very similar to the judgmentand injunctiongranted In the lower court and considered in Railroad Commission of Texas v. Jack Roberts, 332 S.W. 2d 745 (Ci.v.App.

1960) in which case the trial courthad 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'saction In carrying out its order after the granting of the permanent Injunction. The Court of Civil Appeals In that case, at page 749, said:, -

Honorable J. A. Stanford, Page 3 (~~-1365)

"Theeffect of notice of appeal by and on behalf of the Railroad Commissionwas to supersede the final judgment enteredby the 126thDistrict Court on February 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 requestedby the Railroad Commissionwas not Issued because the court was certain that the judgewould comply with the,opinionwithout 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 opinionunder the authorities cited that when appeal was perfected by the State Liquor'ControlBoard by giving notice of appeal in open court, which notice was Included In the judgment,the judgmentwas superseded. The Texas Liquor Control Board may thereforeproceed to enforce the Texas Liquor ControlAct as their best judgment indicatesagainst all parties to that suit.

The Texas Liquor ControlBoard being a department of ihe State Is not required to post supersedeasbond in order to effectively supersedea final judgment of a trial court. When the appeal was perfected from a judgmentagainst this State agency the judgmentat that point was effectively supersededand the Texas Liquor Control Board may proceed to enforce the Texas Liquor Control Act.

NVS:JKRHonorable 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