Texas Dept. of Public Safety v. Alford

• Decision Date: 10 November 2004
• Docket Number: No. 10-03-00035-CV.,10-03-00035-CV.
• Citation: 154 S.W.3d 133
• Parties: TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Gyles Robert ALFORD, Appellee.
• Court: Texas Court of Appeals

154 S.W.3d 133

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Gyles Robert ALFORD, Appellee.

No. 10-03-00035-CV.

Court of Appeals of Texas, Waco.

November 10, 2004.

Rehearing Overruled January 18, 2005.

Kevin M. Givens, Rene S. Lial, Texas DPS-Appellate Section, Austin, for appellant.

Philip C. Banks, Bryan, for appellee.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION

BILL VANCE, Justice.

Based on the findings and conclusions of an administrative law judge, the Texas Department of Public Safety suspended Gyles Robert Alford's driver's license for two years. The trial court reversed that decision.

The Department asks us to revisit a prior decision concerning the statutory warning to be given to the holder of a commercial driver's license who is suspected of driving a non-commercial vehicle while intoxicated. In Texas Department of Public Safety v. Thomas, we held that giving the warnings prescribed in chapter 724 of the Transportation Code was not adequate to warn Thomas, the holder of a commercial license, of the actual, direct, and statutory consequences of his refusal to give a breath specimen. Texas Dept. of Public Safety v. Thomas, 985 S.W.2d 567, 570 (Tex.App.-Waco 1998, no pet.). Now, the Department notes, chapter 522 was amended in 2001 to clarify that the warnings required by that chapter apply "only to a person who is stopped or detained while driving a commercial motor vehicle." TEX. TRANSP. CODE ANN. § 522.102(c) (Vernon Supp.2004). We agree and sustain the Department's first issue. We do not reach the second issue, which is conditioned on our finding that the warnings given were inadequate under Thomas.

The Department's fourth issue says the trial court erred in reversing the administrative decision because it improperly held that the Department failed to prove the elements requiring a suspension under section 724.042 of the Transportation Code at the hearing before the administrative law judge.

As we noted in Thomas, a county court at law reviews the suspension of a driver's license under the substantial evidence rule. Texas Dept. of Pub. Safety v. Lavender, 935 S.W.2d 925, 929 (Tex.App.-Waco 1996, writ denied). When there is substantial evidence that supports the administrative agency's finding, the agency's order must stand. Texas Dept. of Pub. Safety v. Guajardo, 970 S.W.2d 602, 604 (Tex.App.-Houston [14th Dist.] 1998, no pet.). The issue on appeal is whether there is a reasonable basis in the record to support the agency's action, not whether the agency reached the correct conclusion. Id. at 605. When the question is one of law, however, we exercise de novo review. Thomas, 985 S.W.2d at 569.

No findings of fact or conclusions of law were requested or filed. When written findings of fact and conclusions of law are not requested or filed, then the decision being reviewed must be affirmed on any legal theory finding support in the evidence. Texas Dep't of Pub. Safety v. Wilmoth, 83 S.W.3d 929, 931 (Tex.App.-Amarillo 2002, no pet.). When a decision or judgment must be upheld on any ground supported by the record, it is the appellant's burden to assign error to each ground or the decision will be affirmed on the ground to which no complaint was made. See id.

The Administrative Decision recites as a finding of fact that Alford was given warnings under section "724.000" because he was operating a non-commercial vehicle. No such section exists in the Transportation Code. As a conclusion of law, the decision says "Based on the foregoing, the Judge concludes the Department proved the issues set out in Tex. Transp. Code Ann. § 524.035 or 724.042 and that Defendant's license is subject to a suspension for 2 years pursuant to Tex. Transp. Code Ann. § 724.035." (Emphasis added.) Based on the written decision, the trial court could have concluded that on the face of the record no factual basis existed for the conclusion of law as stated. See id. We overrule issue four.

Because the trial court's decision will be sustained on issue four, we do not reach issue three which complains that the trial court erred in reversing the administrative decision because it improperly held that a two- year suspension of Alford's license constituted an ex post facto punishment.

We affirm the trial court's Order reversing the Administrative Decision.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice, dissenting.

The majority, holding that the county court at law "could have concluded on the face of the record [that] no factual basis existed for the [administrative law judge]'s conclusion of law as stated," affirms the court's order reversing the decision of the administrative law judge. Tex. Dep't of Pub. Safety v. Alford, No. 10-03-00035-CV, at 135 (Tex.App.-Waco Nov.10, 2004, no pet. h.) (majority op.) ("slip op."). I respectfully dissent. The county court at law could not, applying the correct — substantial evidence — standard of review, correctly have held that the decision of the administrative law judge ("ALJ") was "not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole." Cf. Tex. Gov't Code Ann. § 2001.174(2)(E) (Vernon 2000). The majority and, on the majority's analysis, the county court at law look for a reason to reverse the ALJ. The majority finds this reason in the ALJ's recitation of Texas Transportation Code Section "724.000" instead of the correct Section 724.015. See Tex. Transp. Code Ann. § 724.015 (Vernon Supp.2004-2005). Instead, we should determine whether substantial evidence reasonably supports the ALJ's conclusions.

I. LEGAL BACKGROUND

The administrative suspension of a person's driver's license by virtue of the person's failure to provide a specimen of his or her blood or breath under certain circumstances is governed by Texas's "implied consent" statute, Texas Transportation Code Chapter 724. See TEX. TRANSP. CODE ANN. §§ 724.001-724.064 (Vernon 1999 & Supp.2004-2005). "`Implied consent' means that if a person is arrested for an offense arising out of the operation of a motor vehicle in a public place" or of certain watercraft "while intoxicated, he is deemed to have consented to the taking of one or more specimens of his breath or blood for analysis to determine alcohol concentration" or the presence of other intoxicating substances. Tex. Dep't of Pub. Safety v. Watson, 945 S.W.2d 262, 266 (Tex.App.-Houston [1st Dist.] 1997, no writ); see TEX. TRANSP. CODE ANN. § 724.002 (Vernon Supp.2004-2005), § 724.011(a) (Vernon 1999). When a person is arrested for driving while intoxicated or certain other offenses, the arresting officer, or any peace officer having reasonable grounds to believe that the person committed the offense, may request that the person submit to the taking of a specimen of breath or blood. TEX. TRANSP. CODE ANN. § 724.012(a) (Vernon Supp.2004-2005); see Tex. Penal Code Ann. § 49.04 (Vernon 2003) (driving while intoxicated). If the person refuses to submit, the requesting officer must serve the person with notice of suspension of the person's driver's license. Tex. Transp. Code Ann. §§ 724.032(a)(1), 724.035(a)-(b) (Vernon Supp.2004-2005); see id. § 724.034 (Vernon 1999).

A person whose driver's license is suspended may request an administrative hearing before an administrative law judge ("ALJ") employed by the State Office of Administrative Hearings ("SOAH"). TEX. TRANSP. CODE ANN. § 724.041(a), (d) (Vernon Supp.2004-2005). Hearings under Chapter 724 are largely governed by the procedures under Transportation Code Chapter 524, which governs the administrative suspension of the driver's license of a person who submits to the taking of a specimen the analysis of which determines that the person had a per se illegal alcohol concentration. See id. § 724.041(g) (Vernon Supp.2004-2005); id. §§ 524.001-524.051 (Vernon 1999 & Supp.2004-2005); Tex. Penal Code Ann. § 49.01(2)(B) (Vernon 2003). Pursuant to Transportation Code Chapters 524 and 724, the Texas Department of Public Safety ("the Department" or "DPS") and SOAH have adopted regulations governing the procedure for license suspension proceedings. See Tex. Transp. Code Ann. §§ 524.002(a), 724.003 (Vernon 1999); 1 Tex. Admin. Code §§ 159.1-159.41 (2004) (SOAH); 37 id. §§ 17.1-17.16 (2004) (DPS).

"The issues at a hearing under" Sections 724.041 through 724.048 "are whether":

(1) reasonable suspicion or probable cause existed to stop or arrest the person;

(2) probable cause existed to believe that the person was:

(A) operating a motor vehicle in a public place while intoxicated; or

(B) operating a watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above while intoxicated (3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and

(4) the person refused to submit to the taking of a specimen on request of the officer.

TEX. TRANSP. CODE ANN. § 724.042 (Vernon Supp.2004-2005). If the ALJ finds in the affirmative on each issue, the suspension is sustained. Id. § 724.043(a) (Vernon Supp.2004-2005). Such an affirmative finding must be by the preponderance of the evidence. 1 Tex. Admin. Code § 159.19(a), (c) (Issues); Todd v. State, 956 S.W.2d 777, 778 (Tex.App.-Waco 1997, pet. ref'd) (per curiam); Ott v. Tex. Dep't of Pub. Safety, 958 S.W.2d 294, 295 (Tex.App.-Austin 1998, no pet.). If the ALJ does not find in the affirmative on each issue, the Department must return and reinstate the person's license. Tex. Transp. Code Ann. § 724.043(b) (Vernon Supp.2004-2005).

If the ALJ sustains a person's driver's license suspension, the person may appeal the suspension. TEX. TRANSP. CODE ANN. § 724.047 (Vernon 1999). Such an appeal is governed by Transportation Code Chapter 524. Id. Chapter 524, in turn, provides, "Chapter 2001, Government Code, applies to a proceeding under this chapter to the extent consistent with this chapter." Id. § 524.002(...