McPeak v. Texas Dept. of Public Safety

• Citation: 346 S.W.2d 138
• Decision Date: 28 April 1961
• Docket Number: No. 15825,15825
• Parties: Wallace Junior McPEAK, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 138

346 S.W.2d 138

Wallace Junior McPEAK, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.

No. 15825.

Court of Civil Appeals of Texas, Dallas.

April 28, 1961.

Pete White, Ivan Irwin and Fowler Roberts, Dallas, for appellant.

Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appellee.

WILLIAMS, Justice.

Wallace Junior McPeak, as plaintiff, filed his petition in the County Court at Law No. 2 of Dallas County, against Texas Department of Public Safety, as defendant, in which he appealed from an administrative finding of the Justice Court, Precinct 4, of Dallas County, finding him to be an habitual violator of the traffic laws and suspending his driving privileges.

Relying upon Article 6687b, Vernon's Ann.Texas Civ.St., and alleging that he was not an habitual violator of such laws, McPeak prayed that said order suspending his driver's license be set aside. After answering, defendant, Texas Department of Public Safety, filed its motion for summary judgment, and upon hearing thereof, the trial court entered its order sustaining such motion. From that judgment this appeal has been perfected.

The motion for summary judgment of the Texas Department of Public Safety, appellee herein, alleged that McPeak had been convicted on four separate occasions within a 12 months period of time of moving traffic violations. Attached to such motion and made a part thereof are six 'notices of conviction' certified from the Corporation Court of the City of Dallas and which state that McPeak had been convicted of speeding, three times; illegal turn, one time; driving on wrong side of street, one time; and 'traffic light', one time. These convictions are shown to have been within a twelve months period of time.

In his first and second points of error, appellant assails these 'notices of conviction', contending that they do not constitute evidence, or substantial evidence, of conviction of traffic violations. These points are overruled. Similar question was presented and considered by the Court in Whittington v. Department of Public Safety, State of Texas, Tex.Civ.App., 342 S.W.2d 374 (writ ref. n.r.e.). Such notices of conviction of traffic violations are public records or documents which are required to be maintained under the authority of Sections 21 and 25 of Article 6687b, V.A.T.C.S., and Section 152, Article 6701d, V.A.T.C.S., and have been held to be admissible into evidence as such public documents under provision of Article 3731a, V.A.T.C.S. Tatum v. Texas Department of Public Safety, Tex.Civ.App., 241 S.W.2d 167 (writ ref.); Texas Department of Public Safety v. Jackson, Tex.Civ.App., 272 S.W.2d 577, (no writ hist.); and Rice v. State of Texas, 163 Tex.Cr.App. 367, 292 S.W.2d 114.

Appellant raises the question of whether the 'notices of conviction' constitute 'substantial evidence'. We do not deem it necessary to pass upon the question of whether the 'substantial evidence' rule applies to the original administrative hearing in the Justice Court. This is an appeal to the County Court at Law and in testing the sufficiency of the motion for summary judgment we do so under the usual rules applicable to such motions. It is our opinion that the notices of convictions constitute proper evidence in support of the motion for summary judgment, and that summary judgment proceeding is proper in such a case. Whittington v. Department of Public Safety, State of Texas (supra).

Therefore, the appellant's third point, complaining that the trial court held that the 'substantial evidence' rule is applicable in this case is overruled. Moreover, we do not find that the trial court made such finding.

By his fourth point, appellant complains of the action of the trial court in holding that appellant's responses to appellee's request for admissions of fact were evasive and therefore deemed admitted as a matter of law. By appropriate request for admissions under Rule 169, Texas Rules of Civil Procedure, appellee requested appellant to admit or deny that he had been arrested on six different dates, for specified offenses, and had been convicted on six different dates. Each incident was contained in a separate request. Appellant answered, and in each instance said that he had 'no recollection of having been arrested on a particular date for the specified offense' and 'couldn't therefore either admit or deny that he was so arrested' and further stated that 'he had not sufficient information either to admit or deny that he was legally convicted for any of the offenses listed on any of the dates specified.' Upon the hearing of the motion for summary judgment the court found that the responses of appellant were wholly evasive and that as a matter of law, said request for admissions were deemed admitted.

Rule 169, T.R.C.P., relating to admission of facts is specific in its provisions that each of the matters of which an admission is requested shall be deemed admitted unless the party to whom the request is directed shall file a sworn statement, either denying specifically the matters of which an admission is requested, or setting forth in detail the reason why he cannot truthfully either admit or deny those matters. (Emphasis supplied.)

Thus a party may not evade the rule by merely saying that he does not have sufficient information to either admit or deny the matters requested when he, by resorting to means available to him, can secure the facts inquired about. This provision of ...