Miller v. Texas Dept. of Public Safety

• Decision Date: 17 January 1964
• Docket Number: No. 16336,16336
• Citation: 375 S.W.2d 468
• Parties: Jack Leroy MILLER, Appellant. v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
• Court: Texas Court of Appeals

Page 468

375 S.W.2d 468

Jack Leroy MILLER, Appellant. v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.

No. 16336.

Court of Civil Appeals of Texas, Dallas.

Jan. 17, 1964.

Rehearing Denied Feb. 21, 1964.

J. M. Deavenport, Dallas, for appellant.

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

Waggoner Carr, Atty. Gen., and Fred D. Ward, Asst. Atty. Gen., Austin, amicus curiae.

WILLIAMS, Justice.

The former opinion rendered in this case is withdrawn and the following substituted therefor.

This is a driver's license suspension case. Pursuant to authority of Art. 6687b, Sec. 22(a), Vernon's Ann.Civ.St., the Texas Department of Public Safety (hereinafter called Department) caused Jack Leroy Miller to appear before a justice of the peace of Dallas County, Texas, for a hearing to determine whether Miller was an habitual traffic violator within the meaning of Art. 6687b, Sec. 22(b), Par. 4, V.A.C.S. Following an affirmative finding by the justice of the peace the Department suspended Miller's driver's license for a period of six months. Art. 6687b, Sec. 22(a) and Sec. 23, V.A.C.S. From this order Miller appealed to the County Court at Law No. 1, Dallas County, Texas, by authority of Art. 6687b, Sec. 22(c), V.A.C.S. In his petition on appeal Miller denied that he was an habitual violator and prayed for restoration of his Texas operator's license. By answer and cross-action the Department alleged that Miller had been convicted of five moving traffic violations occurring within a twelve months' period of time and that such fact authorized the issuance of the suspension order. Par. 4, Sec. 22(b), Art. 6687b, V.A.C.S. Thereafter the Department filed its verified motion for summary judgment, supported by certified copies of five notices of conviction from the Clerk of the Corporation Court of the City of Dallas, Texas. Each of these certified copies was entitled, 'Notice of Conviction', and set forth Miller's name, address and driver's license number; the offense and the date committed together with the cause number in the particular court. Each notice set forth the 'date convicted' and following the word 'penalty' is a line upon which appears different amounts of money.

Miller also filed a motion for summary judgment and an answer in response to the Department's motion. In his verified answer Miller contended that (1) the certified notices of conviction show upon their face that they cover a period in excess of a consecutive twelve months' period and therefore do not comply with Art. 6687b, Sec. 22(b), Par. 4, V.A.C.S.; (2) that he was not legally convicted in Cause No. 46656-B on August 18, 1961, being one of the convictions relied upon by the Department, because he did not appear in open court and plead guilty, nor was he tried in open court, and was not there either in person or by attorney and did not forfeit bail; (3) that he was not legally convicted in Cause No. 25388-B on March 27, 1962, being one of the convictions relied upon by the Department, in that he did not appear in open court or plead guilty, nor was he tried in open court either in person or by his attorney, and did not forfeit bail; (4) that in Cause No. 2447-B, a purported conviction being for the offense of 'driving without lights' on October 8, 1961, he contends that same was not and is not a moving violation as required under Sec. 22(b), Par. 4, of Art. 6687b, V.A.C.S. In further opposition to the Department's motion for summary judgment Miller attaches his affidavit in which he says that he did not appear in open court and did not plead guilty, either in person or by attorney, in Cause No. 46656-B in the Corporation Court of Dallas on August 18, 1961; that he did not deposit any bond or collateral to secure his appearance in court and has not forfeited any bond or collateral. He also says that on March 27, 1962, in Cause No. 25388-B in the Corporation Court of Dallas, Texas he did not appear in open court and did not plead guilty nor did he receive a trial, either in person or by an attorney and did not deposit or forfeit bail. Miller also contends, in his affidavit, that the purported notices of conviction relied upon by the Department are not made in compliance with Art. 6701d, Sec. 152(c), V.A.C.S.

Following hearing the trial court sustained the motion for summary judgment of the Department and from such judgment Miller appeals upon three points of error. We have concluded that two of appellant's points are well taken and that this cause must be reversed and remanded.

At the outset appellee has requested us not to consider appellant's response to its motion for summary judgment because said answer was not filed until the date of hearing of the motion for summary judgment and therefore comes too late under Rule 166-A(c), Texas Rules of Civil Procedure. The record reveals that appellant filed no answer to controvert appellee's motion for summary judgment until the date set for hearing. While it is true that Rule 166-A(c), T.R.C.P. provides that '[t]he adverse party prior to the day of hearing may serve opposing affidavits', we held in the case of Brown v. Aetna Casualty & Surety Co., Tex.Civ.App., 366 S.W.2d 673, wr. ref. n. r. e., that such provision of the rule was not mandatory and that the court's action in allowing the answer to be filed on the date of hearing was within the trial court's discretion. We find no abuse of discretion on the part of the court in this case and therefore ovrrule appellee's motion.

Appellant's first point on appeal that: 'The court erred in granting defendant's motion for summary judgment' is too general and does not meet the requirements of Rule 418, T.R.C.P., relating to briefing. White v. Great American Reserve Ins. Co., Tex.Civ.App., 342 S.W.2d 793; Little v. Employers Security Life Ins. Co., Tex.Civ.App., 343 S.W.2d 517. However, as we said in Wyche v. Noah, Tex.Civ.App., 288 S.W.2d 866, while the point may be too general this court will discuss the grounds as we understand them upon which appellant apparently relies to support his appeal, as disclosed in the statements and arguments accompanying this point on appeal. Covington v. City of Denison, Tex.Civ.App., 369 S.W.2d 824. As we understand appellant's position in this point and especially when taken in connection with appellant's third point of error, to the effect that the court erred in considering two of the alleged violations as 'convictions' it is that appropriate issues of fact were presented and he should have been entitled to a trial de novo. It is elementary that the purpose of a summary judgment proceeding is to determine the existence or nonexistence of an issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929. The question presented here, by appellant's Points 1 and 3, therefore, is whether appellant's answer to appellee's motion creates issues of fact which should have been determined by a court or jury in a trial de novo.

The issue of the type of appeal allowed by Art. 6687b, Sec. 22(c), V.A.C.S., is brought into sharp focus by this record. The Department contends that the substantial evidence rule governs the appeal from an administrative order and that appellant is not entitled to a trial de novo. Appellant points to the plain and express appeal provisions of the statute* which provides that, on appeal, said court shall determine the issues in such cause upon a trial de novo as though the matter had been committed to the courts in the first instance and there had been no intervening administrative or executive action or decision. Moreover, says the statute, under no circumstances shall the substantial evidence rule as interpreted and applied by the courts of Texas in other cases ever be used or applied to appeals prosecuted under the provisions of this Act.

Appellee, by advancing the theory of substantial evidence rule and denying the right of appellant to a trial de novo impliedly challenges the constitutionality of the provision of Art. 6687b, Sec. 22(c), V.A.C.S., relating to appeals from the administrative order. The only cases relied upon by appellee specifically holding that the substantial evidence rule, and not a trial de novo, applies in appeals of this nature are Department of Public Safety v. Robertson, Tex.Civ.App., 203 S.W.2d 950, and Texas Department of Public Safety v. Azar, Tex.Civ.App., 274 S.W.2d 911, wr. ref. n. r. e., but each of these cases was decided prior to the 1959 amendment, referred to above, which expressly provides for trial de novo and the unequivocal denial of the substantial evidence rule.

The Department also relies upon such cases as Chemical Bank & Trust Co. v. Falkner, Tex., 369 S.W.2d 427; Brazosport Savings & Loan Ass'n v. American Savings & Loan Ass'n, 161 Tex. 543, 342 S.W.2d 747; Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619; Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424; and Davis v. City of Lubbock, 160 Tex. 38, 326 S.W.2d 699. None of these cases deal with the specific statute under consideration here but are merely authority for the proposition that the Legislature has no authority to provide for a trial de novo in an appeal from a purely administrative order which deals with legislative functions as opposed to judicial or quasi-judicial functions. This distinction was clearly developed by the Supreme Court in Chemical Bank & Trust Co. v. Falkner, supra, which dealt with a statute governing the issuance of bank charters which named five requirements, all of which must be determined favorably by the State Banking Board before a charter may be issued by the Commissioner of Banking. One of these requirements is that '[a] public necessity exists for the proposed bank', Art. 342-305, Banking Code, V.A.C.S. The Supreme Court held that this requirement is purely legislative in its nature, therefore a court could not determine in a trial de novo that '[a] public necessity exists for the proposed...