Texas Dept. of Public Safety v. Guajardo

• Decision Date: 26 March 1998
• Docket Number: No. 14-96-01099-CV,14-96-01099-CV
• Citation: 970 S.W.2d 602
• Parties: TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Danny GUAJARDO, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 602

970 S.W.2d 602

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Danny GUAJARDO, Appellee.

No. 14-96-01099-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

March 26, 1998.

Stacey Zipp, Houston, for appellant.

Stanley McGee, Angelton, for appellee.

Before YATES, EDELMAN and O'NEILL, JJ.

OPINION

EDELMAN, Justice.

In this driver's license suspension case, the Texas Department of Public Safety ("DPS") appeals a judgment granted in favor of Danny Guajardo on the grounds that: (1) the administrative record was not admitted into evidence; (2) DPS did not have the burden to show that the arresting officer filed an administrative license revocation ("ALR") report within five business days of the arrest; (3) the finding that the arresting officer had reasonable suspicion to stop Guajardo was supported by substantial evidence; (4) DPS' exhibit Nos. 1 and 2 were properly admitted into evidence; and (5) DPS complied with section 159.25 of the Texas Administrative Code. We reverse and render judgment reinstating the license revocation.

Background

On March 2, 1996, a DPS trooper stopped Guajardo for a traffic violation, noticed Guajardo to be unsteady on his feet and smelling of alcohol, and conducted field sobriety tests. Based on the tests, the trooper arrested Guajardo and gave him the statutory warnings. ¹ Because Guajardo declined the officer's request to give a breath specimen, he was served with a notice of license suspension. Following a hearing, the administrative law judge ("ALJ") ordered Guajardo's driver's license suspended for 90 days. Guajardo appealed that decision to the County Court at Law, which set aside the order of suspension. ² DPS appeals the judgment of the County Court.

Standard of Review

Chapters 524 and 724 of the Texas Transportation Code apply, among other things, to administrative suspensions of drivers' licenses of persons arrested for driving while intoxicated. See TEX. TRANSP. CODE ANN. §§ 524.001-.051, 724.001-.064 (Vernon 1998). Generally, Chapter 524 applies where a person arrested submits to the taking of a blood or breath specimen, whereas Chapter 724 applies where such a person declines to do so. See id. However, Chapter 524 also governs an appeal from an administrative hearing under Chapter 724 suspending the issuance of a license. See id. § 724.047. Chapter 159 of the Texas Administrative Code also applies to hearings concerning administrative suspension of drivers' licenses, and the Administrative Procedure Act ³ applies to such proceedings to the extent consistent with chapters 524 and 159. See 1 TEX. ADMIN. CODE § 159.1(a), (c) (West 1997); TEX. TRANSP. CODE ANN. § 524.002(b).

On appeal of an administrative drivers' license suspension to county court, review is based on the substantial evidence rule. See 1 TEX. ADMIN. CODE § 159.37(d) (West 1997). In reviewing a decision under the substantial evidence rule, a court may not substitute its judgment for that of the state agency on the weight of the evidence. See TEX. GOV'T CODE ANN. § 2001.174 (Vernon 1998). The court should 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. See id. § 2001.174(2).

Where there is substantial evidence which would support either affirmative or negative findings, the administrative order must stand, notwithstanding that the agency may have struck a balance with which the reviewing court might differ. See Firemen's and Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex.1984). The issue for the reviewing court is not whether the agency reached the correct conclusion, but whether there is some reasonable basis in the record for the action taken by the agency. See Railroad Comm'n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex.1995). Substantial evidence requires only more than a mere scintilla, and may even preponderate against the decision of the agency. See id. at 792-93.

Failure to Admit Administrative Record

The first of DPS' five points of error argues that, because the administrative record was not admitted into evidence, the County Court could not review the evidence and reverse the ALJ decision.

In an appeal under the substantial evidence rule, the party seeking judicial review shall offer, and the reviewing court shall admit, the state agency record into evidence. See TEX. GOV'T CODE ANN. § 2001.175(d) (Vernon 1998). Admission of the administrative record into evidence is required and must be shown by the court reporter's certificate or other evidence. See Nueces Canyon Consol. Indep. Sch. Dist. v. Central Educ. Agency, 917 S.W.2d 773, 776 (Tex.1996). However, where neither party offers the record of an administrative hearing into evidence, but the record has been filed with the district court clerk and the statement of facts and court order leave no doubt that both parties relied on the record in their arguments and that the court based its decision on the record, the appeals court should treat the record as if it had been admitted into evidence. See Texas Health Enter., Inc. v. Texas Dep't of Human Services, 949 S.W.2d 313, 313-14 (Tex.1997).

In this case, a certified copy of the administrative record was filed with the Clerk of the County Court, and DPS did not object in the County Court to Guajardo's failure to admit the administrative record into evidence. Instead, both parties' contentions were based on the materials in the administrative record, and both sides and the court proceeded as if the record was in evidence. We therefore treat the record as if it had been admitted into evidence and overrule DPS' first point of error.

Timely Filing of Suspension Notice

DPS' second point of error argues that the County Court erred by reversing the ALJ decision because: (1) DPS did not have the burden to prove that the arresting officer filed an ALR report within five business days of the arrest; (2) the five day requirement is directory rather than mandatory; and (3) Guajardo did not preserve error on DPS' failure to make such a showing.

An arresting officer must send a copy of a driver's license suspension notice to DPS not later than the fifth business day after the date of arrest. See TEX. TRANSP. CODE ANN. §§ 524.011(a)(2) (Vernon 1996), ⁴ 724.032(c) (Vernon 1998). After quoting the portion of section 524.011 containing the five-day requirement, ⁵ Guajardo's brief to the County Court asserted:

The Notice of Suspension was served on [Guajardo] on March 2, 1996. The arresting officer prepared a Probable Cause Affidavit on March 5, 1996, and presented same to the Texas Department of Public Safety on March 8, 1996. The arresting officer presented the Notice of Suspension to [DPS] on March 8, 1996. Pursuant to TEX.TRANSP.CODE ANN. § 524.011 and 724.032 (Vernon 1996), the deadline for presentation of the Probable Cause Affidavit and the Notice of Suspension was on March 7, 1996.

Therefore, the decision of the Administrative Law Judge, State Office of Administrative Hearings, should be reversed and the Order of Suspension rendered null and void.

This court has recently held that the five-day requirement in section 724.032(c) is directory rather than mandatory. See Texas Dep't of Public Safety v. Repschleger, 951 S.W.2d 932, 934-35 (Tex.App.--Houston [14th Dist.] 1997, no writ). Because the requirement is only directory, a failure to comply with it would not have rendered the license suspension void. See, e.g., Suburban Util. Corp. v. Public Util. Com., 652 S.W.2d 358, 362 (Tex.1983).

In addition, by failing to raise the alleged non-compliance with the five-day rule in the administrative record, Guajardo failed to preserve any complaint on it for appeal to the County Court. See TEX.R.APP. P. 52(a); Texas Dep't of Pub. Safety v. Bond, 955 S.W.2d 441, 448 (Tex.App.--Fort Worth 1997, no writ). Moreover, the uncontroverted testimony of the arresting officer at the administrative hearing established that Guajardo was arrested on March 2, 1996, and Guajardo acknowledged in his brief to the County Court that he was served that day with the notice of suspension. Because March 2, 1996 was a Saturday, ⁶ the first business day thereafter was Monday, March 4, and the fifth business day thereafter was Friday, March 8. Guajardo acknowledged in his County Court brief that the arresting officer presented the notice of suspension to DPS on March 8. Therefore, as DPS pointed out to the County Court, the five day requirement was satisfied and was not a proper ground for setting aside the suspension.

Reasonable Suspicion

DPS' third point of error argues that the reviewing court erred when it reversed the decision of the administrative court because the ALJ's finding that the arresting officer had reasonable suspicion to stop Guajardo was supported by substantial evidence.

One of the issues at an administrative license suspension hearing is whether reasonable suspicion existed to stop the driver whose license is sought to be suspended. See TEX.TRANSP.CODE ANN. § 724.042(1) (Vernon 1998). In this case, the findings of fact of the ALJ stated that a reasonable suspicion to stop Guajardo existed in that Trooper Holtz observed him illegally parked on the roadway.

Section 545.301 of the Texas Transportation Code provides:

(a) An operator may not stop, park, or leave standing an attended or unattended vehicle on the main traveled part of a highway outside a business or residence district unless:

(1) stopping,...