Texas Dept. of Public Safety v. Story

• Decision Date: 09 July 2003
• Docket Number: No. 10-97-258-CV.,10-97-258-CV.
• Citation: 115 S.W.3d 588
• Parties: TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Billy Bernice STORY, Appellee.
• Court: Texas Court of Appeals

115 S.W.3d 588

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Billy Bernice STORY, Appellee.

No. 10-97-258-CV.

Court of Appeals of Texas, Waco.

July 9, 2003.

Charles Karakashian, Jr., Asst. District Attorney by Deputization, Texas Dept. of Public Safety, Loren E. Svor, Texas Department of Public Safety, John W. Segrest, McLennan County District Attorney, Waco, for Appellant.

Pat Beard, Beard & Kultgen, Waco, for Appellee.

Before Chief Justice DAVIS, Justice VANCE and Justice GRAY.

OPINION

REX D. DAVIS, Chief Justice.

This appeal requires us to balance the State's legitimate interest in regulating driver's licenses with the right of a licensed driver to a meaningful review of an administrative suspension of his license. We must balance these competing interests with regard to a videotape considered by the administrative law judge (the "ALJ") who sustained the suspension of Billy Bernice Story's license which videotape the State Office of Administrative Hearings ("SOAH") subsequently misplaced when preparing the administrative record for review by the County Court at Law (the "reviewing court"). Because we conclude that the reviewing court did not strike the proper balance between these competing interests when it reversed the ALJ's decision and rendered judgment in favor of Story, we reverse the judgment of the reviewing court and remand this cause for further proceedings.

ISSUES PRESENTED

DPS presents four issues on appeal:

• whether a court reviewing an administrative decision may reverse and render in favor of the party seeking review on a basis other than reflected in the administrative record;

• whether Story waived his due process claim by failing to attempt to correct the administrative record filed with the reviewing court;

• whether Story even has "a theoretically valid due process argument" because the administrative record filed with the reviewing court contains substantial evidence supporting the ALJ's decision notwithstanding a missing videotape; and

• what action should the reviewing court have taken in response to Story's refusal to stipulate to the authenticity of a copy of the missing videotape.

FACTUAL BACKGROUND

Officers with the Woodway Public Safety Department arrested Story for DWI on January 1, 1997.¹ After an officer provided Story the required DWI statutory warnings, Story refused to provide a specimen of his breath for analysis to determine the alcohol concentration in his body.² DPS suspended Story's license for ninety days because of his refusal to provide a breath specimen.³ Story requested an administrative hearing on the suspension, which was held on February 18.⁴ At the conclusion of the hearing, the ALJ made findings favorable to DPS and entered an order sustaining the suspension of Story's license.⁵

That same day, Story filed a petition seeking judicial review of the administrative decision in the County Court at Law. See Tex. Transp. Code Ann. §§ 524.041, 724.047 (Vernon 1999). Pursuant to Story's request, SOAH filed the administrative record with the County Clerk. Id. § 524.044 (Vernon 1999); Tex. Gov't Code Ann. § 2001.175(b) (Vernon 2000). However, SOAH filed an incomplete record because SOAH had lost a videotape prepared by the arresting agency and offered as evidence at the administrative hearing.

On May 7, the reviewing court granted the Department of Public Safety ("DPS") a continuance for two weeks to enable it to attempt to locate the missing exhibit. DPS could not locate the videotape but appeared at the next hearing with a copy of the missing videotape, which it had obtained from the arresting agency. Story would not agree to stipulate to the substitution of this copy for the videotape which had been lost. He asked the reviewing court to reverse the administrative decision and render judgment that his license be restored because of the lost evidence. On May 22, the reviewing court granted Story the relief requested, reversing the administrative decision and rendering judgment in his favor.

On original submission, we dismissed DPS's appeal for want of jurisdiction. Tex. Dept. of Pub. Safety v. Story, 65 S.W.3d 675 (Tex.App.-Waco 1999). The Supreme Court vacated our decision and remanded this case for further proceedings in light of its decision in Texas Department of Public Safety v. Barlow.⁶ Tex. Dept. of Pub. Safety v. Story, 51 S.W.3d 296, 296 (Tex.2001) (citing Barlow, 48 S.W.3d 174 (Tex.2001)).

APPLICABLE LAW

A driver's license is a privilege, not a right. Tex. Dept. of Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728 (Tex.1985); Tex. Dept. of Pub. Safety v. Monroe, 983 S.W.2d 52, 56 (Tex.App.-Houston [14th Dist.] 1998, no pet.); Ex parte Tharp, 912 S.W.2d 887, 890 (Tex.App.-Fort Worth 1995), aff'd, 935 S.W.2d 157 (Tex.Crim.App.1996). The State has a legitimate interest in regulating driver's licenses to maintain public safety. See Mireles v. Tex. Dept. of Pub. Safety, 9 S.W.3d 128, 130 (Tex.1999); Tex. Dept. of Pub. Safety v. Richardson, 384 S.W.2d 128, 132 (Tex.1964); Tharp, 912 S.W.2d at 891; Raitano v. Tex. Dept. of Pub. Safety, 860 S.W.2d 549, 551 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

The right to appeal a license suspension does not even exist absent statutory authorization. Schaejbe, 687 S.W.2d at 728; Monroe, 983 S.W.2d at 56; Tharp, 912 S.W.2d at 890. Because there is a statutorily-provided appeal of license suspensions however, such procedures must comply with the due process requirements of the United States Constitution. Monroe, 983 S.W.2d at 56; Tharp, 912 S.W.2d at 890; Nebes v. State, 743 S.W.2d 729, 730 (Tex.App.-Houston [1st Dist.] 1987, no pet.); see also Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 839, 83 L.Ed.2d 821, 833 (1985) ("[W]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution—and, in particular, in accord with the Due Process Clause."); In re E.L.Y., 69 S.W.3d 838, 841 (Tex.App.-Waco 2002, order, no pet.) (same).

Procedural due process requires that the State provide a person a "meaningful opportunity to be heard" when depriving him of a constitutionally-protected interest. LaChance v. Erickson, 522 U.S. 262, 266, 118 S.Ct. 753, 756, 139 L.Ed.2d 695, 700 (1998); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex.1998); see also Monroe, 983 S.W.2d at 56. An opportunity to be heard is "meaningful" even if it is not available until after the deprivation has occurred so long as it provides the person "a fair opportunity to challenge the accuracy and legal validity of the [deprivation]" and a "clear and certain remedy." McKesson Corp. v. Div. of Alcoholic Beverages & Tobacco, 496 U.S. 18, 39, 110 S.Ct. 2238, 2251, 110 L.Ed.2d 17, 37 (1990).

Section 724.047 of the Transportation Code provides that a party may seek judicial review (i.e., "an appeal") of an administrative hearing suspending a driver's license for failure to provide a breath specimen. Tex. Transp. Code Ann. § 724.047. Chapter 524 of that Code governs such an appeal. Id. Section 524.042 provides that if the person's license has not been previously suspended due to alcohol- or drug-related incidents and if the person has not been previously convicted of DWI or a similar offense in the ten years preceding the current DWI arrest, the appeal of the administrative ruling stays the suspension for ninety days following the date the appeal petition is filed.⁷ Neither DPS nor the reviewing court can extend the stay. Tex. Transp. Code Ann. § 524.042(b) (Vernon 1999).

Generally, the reviewing court is limited to the administrative record and cannot consider additional testimony. Id. § 524.043(a) (Vernon 1999); Tex. Gov't Code Ann. § 2001.175(e) (Vernon 2000);⁸ City of Port Arthur v. Sw. Bell Tel. Co., 13 S.W.3d 841, 844 (Tex.App.-Austin 2000, no pet.). If a party wishes to present additional evidence which it did not present to the ALJ and satisfies the reviewing court that the additional evidence is material and that good reasons exist for the failure to present it to the ALJ, the reviewing court may remand the proceeding to the ALJ for consideration of the additional evidence.⁹ Tex. Transp. Code. Ann. § 524.043(b) (Vernon 1999); Tex. Gov't Code. Ann. § 2001.175(c) (Vernon 2000); Sw. Bell Tel. Co., 13 S.W.3d at 844. However, a remand for the consideration of such additional evidence will not operate as a further stay of the license suspension. Tex. Gov't Code Ann. § 524.043(e) (Vernon 1999); cf. 1 Tex. Admin. Code § 159.37(j); 20 Tex. Reg. 570 (1995), amended by proposed 24 Tex. Reg. 4195, adopted 24 Tex. Reg. 6310 (1999) (current version at 37 Tex. Admin. Code § 17.11(c)).¹⁰

A reviewing court may also "go beyond the agency record" and consider evidence of procedural irregularities which allegedly occurred before the ALJ and are not reflected by the administrative record. See Tex. Water Commn. v. Dellana, 849 S.W.2d 808, 810 (Tex.1993) (orig. proceeding); Sw. Bell Tel. Co., 13 S.W.3d at 844; Tex. Gov't Code Ann. § 2001.175(e).

The reviewing court must:

reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency's statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Tex. Gov't Code Ann. § 2001.174(2) (Vernon 2000). Otherwise, the reviewing court may affirm the administrative decision if the court is satisfied that "substantial evidence" exists to support it. See id. § 2001.174(1) (Vernon 2000); R.R. Commn. of Tex. v. Torch...