Ex Parte Serna

957 S.W.2d 598, 1997 Tex. App. LEXIS 6047, 1997 WL 725683

• Court: Court of Appeals of Texas
• Decided: November 19, 1997
• Docket: 2-96-247-CR
• Status: Published

Opinions

OPINION ON REHEARING

DAY, Justice.

The State’s motion for rehearing en banc is granted. We withdraw our May 8, 1997 opinions and judgment and substitute the following in their place.

INTRODUCTION

Appellant Paul Rene Serna appeals from the trial court’s denial of habeas corpus relief in his driving while intoxicated (DWI) case. Appellant was arrested for DWI, but at the administrative hearing he requested, the administrative law judge rescinded the Department of Public Safety’s (DPS’s) suspension of Appellant’s driver’s license. See Tex. TRANSP. Code Ann. §§ 524.012, 524.035 (Vernon 1997). The judge specifically found that the DPS had failed to prove its allegation that Appellant’s breath-alcohol concentration was at least 0.10.

Appellant filed his application for writ of habeas corpus, and the trial court granted the writ. After a hearing, however, the trial court denied relief.

In his writ, Appellant contended that the administrative law judge’s ruling precluded prosecution on the DWI allegation, based on double jeopardy grounds. He also argued that the State was collaterally estopped from again attempting to prove his breath-alcohol concentration.

Because we find that double jeopardy and collateral estoppel' do not apply to this case, we affirm the trial court’s denial of habeas relief.

Double Jeopardy

In his first two points, Appellant alleges that a trial on his DWI charge after the State failed to prove that his breath-alcohol concentration was 0.10 or more would violate his federal and state double jeopardy protections. We have previously held that a prosecution for DWI after a driver’s license suspension does not violate the double jeopardy provisions of the federal and state constitutions. See Ex parte Tharp, 912 S.W.2d 887, 894 (Tex.App.—Fort Worth 1995), aff'd, 935 S.W.2d 157 (Tex.Crim.App.1996). Accordingly, we overrule Appellant’s first and second points.

Collateral Estoppel

In his third point, Appellant presents us with a question of first impression for this court. He argues that collateral estoppel should bar the State’s prosecution for DWI. We disagree because Appellant has not established his entitlement to habeas relief, because the legislature did not intend a license suspension hearing to have a preclu-sive effect on a subsequent criminal prosecution for DWI, and because the cases on which Appellant relies are distinguishable from his situation.

1. Standard of Review

At a habeas corpus proceeding, the writ applicant bears the burden of presenting evidence to support his allegation of collateral estoppel. See Dedrick v. State, 623 S.W.2d 332, 339 (Tex.Crim.App. [Panel Op.]1981); Ex parte Ayers, 921 S.W.2d 438, 440 (Tex.App.—Houston [1st Dist.] 1996, no pet.); see also Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App.1993) (burden is on writ applicant to prove facts that will entitle him to habeas relief). The trial court’s ruling in a habeas corpus proceeding should not be overturned absent a clear abuse of discretion. See Ayers, 921 S.W.2d at 440; see also Guzman v. State, 955 S.W.2d 85, 88-89 (Tex.Crim.App.1997) (appellate court should afford almost total deference to trial court’s rulings on mixed questions of law and fact if resolution required evaluation of credibility and demeanor). The record in this case shows that Appellant did not carry his burden of establishing his entitlement to habeas relief; thus, the trial court did not abuse its discretion by refusing to grant the requested relief.

2. Legislative Intent

In Tharp, we reaffirmed well-settled Texas ease law that a license suspension proceeding is civil, administrative, and remedial in nature. Tharp, 912 S.W.2d at 891. The legislature’s intent in enacting the statute was not to convict or punish the criminal but rather to protect the public by removing dangerous drivers from the streets. See id. Thus, we do not believe the legislature intended the decision made at a license suspension hearing to bar the State from prosecuting a person for DWI. Cf. Ex parte Pipkin, 935 S.W.2d 213, 216-17 (Tex.App.—Amarillo 1996, pet. filed) (“[W]e are compelled to eonT elude that no one [in the legislature] ever expected the decision of the administrative judge in [a license suspension proceeding] to have binding affect upon the determination of appellant’s guilt in a criminal prosecution.”); see also State v. Aguilar, 947 S.W.2d 257, 261 n. 5 (Tex.Crim.App.1997) (indicating that collateral estoppel does not arise from license suspension proceedings for DWI offenses committed on or after September 1, 1995).¹

3.Appellant’s Reliance on Ashe and Tar-ver is Misplaced

To support his collateral estoppel theory, Appellant relies on the United States Supreme Court’s decision in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970) and the Texas Court of Criminal Appeals’ decision in Ex parte Tarver, 725 S.W.2d 195 (Tex.Crim.App.1986).

In Ashe, the Supreme Court stated, “ ‘[collateral estoppel’ ... means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475. But Ashe does not imply that a claim of collateral estoppel may be based on anything other than an acquittal in a prior criminal prosecution. The Court stated, “The question ... is simply whether, after a jury determined by its verdict that the petitioner was not one of the robbers, the State could constitutionally hale him before a new jury to litigate that issue again.” Id. at 446, 90 S.Ct. at 1195, 25 L.Ed.2d at 477; accord Dedrick, 623 S.W.2d at 336; Ex parte Lane, 806 S.W.2d 336, 338 (Tex.App.—Fort Worth 1991, no pet.); Ex parte Daniel, 781 S.W.2d 412, 414 (Tex.App.—Houston [1st Dist.] 1989, pet. ref'd).

Appellant’s license suspension hearing was a civil, administrative hearing, not a criminal prosecution. See Pipkin, 935 S.W.2d at 216-17; Tharp, 912 S.W.2d at 891; Walton v. State, 831 S.W.2d 488, 490 (Tex.App.—Houston [14th Dist.] 1992, no pet.). Thus, he cannot rely on Ashe to support his collateral estoppel claim in this case.

In Tarver, however, the Court of Criminal Appeals held the mere fact that a proceeding is “administrative in nature” does not end the inquiry into whether collateral estoppel applies. Tarver, 725 S.W.2d at 199. “When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judica-ta to enforce repose.” Id. (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S.Ct. 1545, 1560, 16 L.Ed.2d 642, 661 (1966) (emphasis in Tarver)).

Tarver involved a probation revocation hearing, which is administrative in that it deals with the trial court’s supervision of probation. In that case, the State moved to revoke Tarver’s probation based on an alleged assault, but the trial court denied the motion, finding the State’s evidence of the assault “totally incredible.” Tarver, 725 S.W.2d at 198. Thereafter, the State attempted to prosecute Tarver for the same assault. Tarver filed an application for writ of habeas corpus, alleging that the State was collaterally estopped from relitigating the assault issue. The Tañer court agreed. Several factors were important to the Tarver court’s decision:

• the proceeding to revoke probation required substantially all the same procedures as a criminal trial;

• a district court judge presided over the revocation hearing and acted as finder of fact;

• both the State and the accused were represented by counsel;

• after a full hearing, at which the State put on three witnesses, the trial court found the State’s evidence “totally incredible”;

• the State stipulated that it would use the same evidence at the trial for assault as it had at the probation revocation hearing; and

• the trial court’s judgment was appealable in the same manner as any other judgment in a criminal trial.

Id. at 198-99.

Notably, the Tarver court specifically limited its holding to the particular circumstances of that ease. The court stated: “We emphasize the narrowness of this hold-ing_ It is only in the particular circumstances of this case, where the trial court does make a specific finding of fact that the allegation is ‘not true,’ that a fact has been established so as to bar relitigation of the same fact.” Id. at 200.

We question whether the Tarver court would have held that collateral estoppel applied but for (1) the trial court’s finding at the probation revocation hearing that the State’s evidence was “totally incredible” and (2) the State’s stipulation at the habeas corpus hearing that it would put on identical “totally incredible” evidence at the criminal trial for assault. Id. at 198. These facts presented a compelling reason to find that collateral estoppel applied. We are not presented with any such compelling facts in this case. Indeed, we do not even know the basis for the administrative law judge’s finding.

4. Tarver Applies to This Case

In our original opinion, the majority cited Ashe, Tarver, and Judge McCormick’s dissent in Dedrick for the general proposition that collateral estoppel applies in criminal cases but that an appellate court should conduct a painstaking review of the initial action only where the initial action resulted in a general verdict of acquittal. See original opinion, at 610-12.² Then the original opinion stated that we must apply a more deferential “civil” standard of review in this case— a series of presumptions—because an administrative license suspension hearing is civil in nature and does not result in an acquittal. See id. at 5 & n. 7, ¶2. According to the original opinion and the dissenting opinion on rehearing (the dissent), we must presume that the administrative law judge’s findings are supported by substantial evidence, and we must apply a presumption of regularity to the license suspension hearing. See original opinion, 957 S.W.2d at 621-22; dissent 957 S.W.2d at 609. In other words, the original opinion and the dissent would have us presume that the administrative law judge acted in a judicial capacity and resolved disputed issues of fact that the parties had an adequate opportunity to litigate. See Tarver, 725 S.W.2d at 199.

Importantly, however, the initial action in Tarver —a probation revocation hearing— applied a civil standard of proof and did not end in a “general verdict of acquittal”; yet instead of relying on presumptions, the Tarver court thoroughly examined what occurred at the probation revocation hearing before holding that collateral estoppel applied. Id. at 199-200. Accordingly, Tarver provides a valid framework for deciding whether collateral estoppel applies in this case.

The original opinion also placed on the State the burden of bringing forth a sufficient record to show that whether Appellant failed a breath-alcohol test was not fully and fairly litigated. See original opinion, 957 S.W.2d at 621-22. But as a habeas applicant, it was Appellant’s burden to show that this ultimate fact issue was fully and fairly litigated at the license suspension hearing. See Aguilar, 947 S.W.2d at 260 (habeas applicant bore burden of demonstrating applicability of collateral estoppel); Tarver, 725 S.W.2d at 199 (same).

Nonetheless, the original opinion eliminated Appellant’s burden on this issue by presuming that the administrative law judge’s findings are supported by substantial evidence, i.e., that the underlying factual issues were fully and fairly litigated. See original opinion, 957 S.W.2d at 621-22. The substantial evidence presumption does not apply to this appeal. “Substantial evidence” is the standard of review appellate courts apply when a party challenges an administrative agency’s fact findings. The party contesting the fact findings bears the burden of rebutting the presumption that those findings are supported by substantial evidence. See City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179, 185 (Tex.1994). Substantial evidence is not the proper standard of review in this case because no one has challenged the administrative law judge’s fact findings.³ Indeed, unlike the situation in City of El Paso and other civil cases involving administrative agency decisions, the DPS was statutorily prohibited from contesting the administrative law judge’s fact findings. See Tex. TRANSP. Code Ann. § 524.041(d) (Vernon 1997) (DPS’s right to appeal is limited to issues of law).⁴

5. Tarver is Not Based on a Presumption of Regularity

The original opinion devoted nine pages to the procedures that govern license suspension hearings, original opinion, 957 S.W.2d at 614-17, and then argued that we must apply a presumption of regularity to license suspension hearings “[u]nless the State proves the contrary.” Id. at 621-22. It is important to note, however, that the Tarver decision is not based on a presumption of regularity, but on the Court of Criminal Appeals’ examination of what transpired at the probation revocation hearing. Thus, our inquiry is not limited to whether we can presume that the administrative law judge followed proper procedures, but instead focuses on what actually occurred at the license suspension hearing.

The habeas applicant in Tarver established his right to habeas relief by providing the Court of Criminal Appeals with a complete record from the probation revocation hearing. In contrast, Appellant has provided us with only a partial transcript from his administrative hearing. See infra note 5. He has not provided us with a statement of facts from the hearing. The sparse record presented shows the following:

• Appellant’s license suspension hearing was not conducted by a trial court; rather, it was held before an administrative law judge employed by the State Office of Administrative Hearings.

• At the hearing, the DPS apparently presented copies of the arresting officer’s statutory warnings and the notice of suspension that was sent to Appellant.⁵

• At the hearing, the administrative law judge found that the DPS did not prove, by a preponderance of the evidence, that Appellant failed a breath-alcohol test.

The record does not show:

• Whether the DPS was represented by counsel;

• Whether either party put on or cross-examined witnesses;

• Whether either party put on any evidence besides the two documents listed above; or

• The basis of the administrative law judge’s determination that Appellant .. had not failed a breath-alcohol test.⁶

Unlike the Tarver court, we are unable to examine what actually occurred at the license suspension hearing; we have only the administrative law judge’s bare fact finding. See Pipkin, 935 S.W.2d at 214 n. 1 (appellant’s failure to include transcription of administrative proceeding in appellate record was “hardly conducive” to determination of “whether the procedures utilized during the administrative proceeding afforded the parties a full and fair opportunity to litigate the issues”); see also Aguilar, 947 S.W.2d at 260 (evidence insufficient to establish collateral estoppel where, at habeas hearing, applicant did not put on any evidence except administrative judge’s ruling). Moreover, unlike the situation in Tarver, the administrative law judge in this case did not find the DPS’s evidence “totally incredible”; the judge merely found that whatever evidence was presented was insufficient to sustain a finding that Appellant had failed a breath-alcohol test.

6. This Case Does Not Pass the Tarver Test

The record before us presents few, if any, of the factors essential to the Tarver decision concerning collateral estoppel. Thus, the record does not show that the administrative law judge “resolvefd] disputed issues of fact ... which the parties have had an adequate opportunity to litigate” by a valid and final judgment. Ashe, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475; Utah Constr. & Mining Co., 384 U.S. at 422, 86 S.Ct. at 1559-60, 16 L.Ed.2d at 661; Tarver, 725 S.W.2d at 199. Consequently, we hold that the State is not collaterally estopped from prosecuting Appellant for driving while intoxicated under either of the theories alleged in the information.

This position has considerable support in Texas ease law. Several courts of appeals have refused to hold the State collaterally estopped based on fact findings made in administrative proceedings factually dissimilar from the probation revocation hearing in Tarver. These courts have not relied on presumptions of regularity but have examined what actually transpired at the administrative hearings.

For instance, in State v. Aguilar, 901 S.W.2d 740 (Tex.App.—San Antonio 1995), aff'd, 947 S.W.2d 257 (Tex.Crim.App.1997) a municipal judge, acting as the administrative law judge, entered a finding of no probable cause to arrest Aguilar for driving while intoxicated. In a subsequent DWI proceeding, Aguilar introduced the municipal judge’s finding of no probable cause and moved to suppress the evidence resulting from his arrest. Id. at 741-42. The San Antonio Court of Appeals held that the municipal judge’s finding did not collaterally estop the State from proving, in the DWI proceeding, that probable cause existed to arrest Aguilar. Id. at 741. The court stated that an issue is not properly litigated at an administrative hearing unless a trial court acts as fact finder, after a full hearing at which both the State and the accused are represented by counsel. Id. at 741-42 (citing Tarver, 725 S.W.2d at 199). Because Aguilar failed to prove that his license suspension hearing included these important factors, he did not establish .collateral estoppel. Id. at 742.⁷ The Court of Criminal Appeals recently affirmed both the decision and the reasoning of the San Antonio court. See Aguilar, 947 S.W.2d at 261.

Other courts have reached similar decisions. See, e.g., Daniel, 781 S.W.2d at 413-15 (hearing examiner’s fact finding, at parole revocation hearing, of insufficient evidence of firearm possession did not collaterally estop State from later proceeding to trial on firearm possession charge, where hearing was not conducted by district court judge; State was not represented by counsel; and hearing officer made determination because subpoenaed witness had failed to appear and testify, not based on the credibility—or lack thereof—of the evidence); Ex parte Bowen, 746 S.W.2d 10, 11-13 (Tex.App.—Eastland 1988, pet. ref'd) (hearing examiner’s fact finding, at parole revocation hearing, of insufficient evidence of amphetamine possession did not collaterally estop State from later prosecuting defendant for amphetamine possession); Collins v. State, 742 S.W.2d 511, 511-12 (Tex.App.—Waco 1987, pet. ref'd) (hearing examiner’s fact finding, at parole revocation hearing, of insufficient evidence of burglary did not collaterally estop State from litigating issue of burglary at defendant’s subsequent murder trial; hearing examiner’s findings were not findings of an ultimate issue of fact determined in a valid and final judgment).

In each of these cases, the defendant had asserted that the State was collaterally es-topped from prosecuting based on Tarver. Nonetheless, as both the Daniel and Bowen courts pointed out, the fact issue of whether an appellant actually committed an offense “should be addressed in a court of law, in a criminal proceeding.” Daniel, 781 S.W.2d at 415; see Bowen, 746 S.W.2d at 13; see also Pipkin, 935 S.W.2d at 214, 216 (administrative law judge’s finding that DPS failed to prove appellant was “driving or in control of a motor vehicle in a public place” did not collaterally estop State from prosecuting appellant for DWI); Ex parte Poplin, 933 S.W.2d 239, 242-43 (Tex.App.—Dallas 1996, pet. ref'd) (same).

In sum, the legislature did not intend that a decision made in a civil, administrative, remedial license suspension hearing could be used to bar the State from prosecuting drunk drivers. Moreover, Ashe and Tarver are distinguishable from Appellant’s situation on numerous grounds, and Appellant has not carried his burden of presenting a record that affirmatively shows his entitlement to habeas relief. Consequently, we hold that the trial court did not abuse its discretion by denying habeas relief on this ground. We overrule point three.

Conclusion

Because neither double jeopardy nor collateral estoppel applies to this case, we affirm the trial court’s denial of habeas relief.

DAUPHINOT, J., filed a dissenting opinion. RICHARDS, J., filed a concurring opinion in which LIVINGSTON, J. joins.

1 . Appellant was arrested for DWI on September 9,1995.

2 . Our original majority opinion is attached as an appendix to the dissenting opinion on rehearing. Ex parte Serna, No. 2-96-247-CR. We refer to the original majority opinion throughout as "original opinion, 957 S.W.2d at 606.”

3 . The proper standard of review in this case is whether the trial court abused its discretion by denying habeas relief. See supra at 600.

4 . The original opinion extended Tarver by holding that collateral estoppel automatically applies to fact findings in all license suspension hearings, irrespective of the basis for the finding, because those hearings are essentially civil trials. See original opinion, 957 S.W.2d at 614. (by amending procedure for license suspension hearings, “the legislature demonstrated and effectuated its intent to place license suspension proceedings in the realm of judicial proceedings”); id. at 617 ("[a]n administrative law judge ... is clearly acting in a judicial capacity”); id. at 612 (license suspension hearing is civil in nature); id. at 621— 22 (unambiguous civil judgment is sufficient evidence for applying collateral estoppel and precludes resort to balance of record).

In civil trials to which the State is a party, the State is allowed to appeal both factual and legal issues. See, e.g., Tex Fam.Code Ann. § 109.002 (Vernon 1996) (any party may appeal from trial court’s final order affecting parent-child relationship); In re A.B.B., 785 S.W.2d 828, 830-31 (Tex.App.—Amarillo 1990, no writ) (Department of Human Services could appeal from trial court’s final order concerning child custody). Accordingly, if a license suspension hearing were a regular civil trial, the State would be allowed to appeal any part of the administrative law judge’s decision, just as in any other civil case. As the original opinion pointed out, however, only a person whose driver’s license is suspended may appeal the administrative law judge's entire decision. See original opinion, 957 S.W.2d at 616, 618; see also Tex Transp. Code Ann. § 524.041(a). The State can only appeal issues of law; it cannot appeal the administrative law judge's fact findings, such as the one made in this case. See Tex Transp. Code Ann. § 524.041(d). This limited appeal right is yet another factor that distinguishes this case from Tarver. See Tarver, 725 S.W.2d at 199 (holding that trial court's decision at revocation hearing was a final judgment because it would have been appealable in the same manner as any other judgment in a criminal case); see also Ashe, 397 U.S. at 443, 90 S.Ct. at 1194, 25 L.Ed.2d at 475 (holding that collateral estoppel does not apply absent a valid and final judgment in criminal trial). The State's limited right to appeal is also another indication that the legislature did not intend the administrative law judge’s findings to have the preclusive effect of a final judgment in a regular trial.

5 . The administrative record from the license suspension hearing indicates the DPS also may have presented the arresting officer’s probable cause affidavit, but that document is not in the record.

6 . In his application for writ of habeas corpus, Appellant judicially admitted that his breath-alcohol test showed he was intoxicated. Appellant admitted that his breath-alcohol test result showed he “had an alcohol concentration of a level specified in Section 49.01” of the Texas Penal Code, i.e., of 0.10 or more. See Tex Penal Code Ann. § 49.01(2)(B) (Vernon 1994). A person is legally intoxicated if his breath-alcohol concentration is 0.10 or more. See id.

7 . The original opinion inferred that the San Antonio court held the license suspension hearing in that case was not a judicial proceeding because the State met its burden of proof. Compare original opinion, 957 S.W.2d at 622-23 with Aguilar, 901 S.W.2d at 742. Nonetheless, the Aguilar court made it clear that the burden of proof was on Aguilar, not the State. Aguilar, 901 S.W.2d at 742.