Texas Department of Public Safety v. Nunez

956 S.W.2d 603, 1997 Tex. App. LEXIS 5665, 1997 WL 691387
CourtCourt of Appeals of Texas
DecidedSeptember 18, 1997
DocketNo. 2-96-255-CV
StatusPublished
Cited by3 cases

This text of 956 S.W.2d 603 (Texas Department of Public Safety v. Nunez) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Department of Public Safety v. Nunez, 956 S.W.2d 603, 1997 Tex. App. LEXIS 5665, 1997 WL 691387 (Tex. Ct. App. 1997).

Opinion

OPINION

JOHN G. HILL, Justice (Assigned).

The Texas Department of Public Safety appeals from a final order of the County Court at Law in Parker County reversing the administrative decision of May 1, 1996, a decision that had sustained a suspension of the driver’s license of Misty Wesberry Nunez, the appellee. The Department argues in six points of error that the reviewing court erred as a matter of law by reversing the decision of the administrative law judge.

We reverse and render judgment affirming the decision of the administrative law judge and order that the Department may suspend Nunez’s driver’s license for 60 days because the reviewing court erred as a matter of law by reversing the decision of the administrative law judge.

As we have noted, the Department argues in six points of error that the reviewing court erred as a matter of law by reversing the decision of the administrative law judge. In her original petition filed with the Parker County Court at Law, Nunez alleged that the findings, inferences, conclusions and decisions of “Defendant” (which was the Texas Department of Public Safety) are: (1) not reasonably supported by substantial evidence in view of the reliable and probative evidence in the record as a whole; (2) in violation of Constitutional or Statutory provisions; (3) in excess of the statutory authority of “Defendant”; (4) made upon unlawful procedure; (5) arbitrary and capricious and characterized by an abuse of discretion; and (6) a denial of her due process of law and the right to equal protection of the law. In her “Statement of Position” filed with the county court, Nunez presented six bases to that court for reversal of the administrative decision. She contended that: (1) the Department failed in its attempt to prove that she had an alcohol concentration in excess of the statutory limit at the time she was driving a motor vehicle; (2) the administrative law judge erred in admitting into evidence “the DIC-23 (DPS Exhibit # 2A, 2B, and 2Q” because it was not a properly sworn affidavit; (3) the administrative law judge erred in admitting the department’s exhibits because they had not been provided pursuant to demand any time [605]*605prior to trial, much less within five days of the demand; (4) the breath test operator affidavit, Department Exhibit #4, was not admissible on its face because it was not certified; (5) the breath test operator affidavit was not admissible because there is no authority for its admission; and (6) there is no evidence that the arresting officer filed a required report with the Department showing the grounds for the officer’s belief that the person had been operating a motor vehicle while intoxicated and including a copy of a refusal statement signed by the person whose license is being suspended or a statement signed by the officer that the person refused to submit to the taking of the requested specimen and refused to sign the refusal statement.

Chapter 524 of the Transportation Code contains provisions for the Department to suspend the driver’s license of certain drivers when a blood or breath specimen taken from the driver shows an alcohol concentration in excess of the level specified by Section 49.01(2)(B) of the Texas Penal Code. Tex. TRANSP.Code Ann. § 524.011 (Vernon Supp. 1997). Following notice of the suspension to the driver, the driver may request a hearing before an administrative law judge employed by the State Office of Administrative Hearings. Id. §§ 524.013, 524.031, and 524.033. The driver may appeal an adverse decision of the administrative law judge to the county court at law of the county in which the driver was arrested, or to the county court in the absence of a county court at law. In the event that the county judge is not an attorney, the judge must transfer the case to a district court of the county, either at the request of either of the parties or on the judge’s own motion. See id. § 524.041. Review on appeal is on the record certified by the State Office of Administrative Hearings with no additional testimony, unless upon request of a party the trial judge orders that an administrative law judge take such additional testimony because it finds that the additional evidence is material and that there were good reasons for the failure to present the testimony in the original proceeding before the administrative law judge. See id. § 524.043.

There are two issues that the Department is required to prove in the administrative hearing: (1) whether the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place; and (2) whether reasonable suspicion to stop or probable cause to arrest the person existed. See id. § 524.035(a)(1) and (2). The statutes further provide that if the administrative law judge finds in the affirmative on each of those issues, the suspension is sustained. See id. § 524.035(b). There is evidence in the record supporting both of those findings and none in contradiction to either.

Review on appeal is on the record certified by the State Office of Administrative Hearings with no additional testimony, § 524.043(a), although a party may apply to the court to present additional evidence. See id. § 524.043(b). In this case it appears that the only evidence before the trial court was the record from the administrative hearing.

In this case the administrative law judge made the findings required by section 524.035(a) of the Texas Transportation Code. See id. § 524.035(a). Consequently, in the absence of some error, the suspension is sustained. See id. § 524.043(b). We have reviewed the record from the administrative proceeding, which, as we have noted, also constitutes the trial court record. Having done so, we hold that the administrative law judge’s findings, inferences, conclusions, and decisions: (1) are supported by substantial evidence; (2) are not in violation of constitutional or statutory provisions; (3) are not in excess of the administrative law judge’s statutory authority; (4) are not made upon unlawful procedure; (5) are not arbitrary and capricious or characterized by an abuse of discretion; (6) are not an unwarranted exercise of discretion; and (7) do not deny Nunez due process of law or the right to equal protection of the law, as guaranteed to her by the Constitutions of the United States and of the State of Texas.

In this appeal, Nunez presents twelve reply points in which she suggests possible bases for upholding the reviewing court. In her first reply point, she makes the general assertion that the trial court’s judgment [606]*606should be sustained if it can be upheld on any ground asserted in her petition initiating judicial review of the administrative decision. As previously noted, we have reviewed the record and find no basis for any of the assertions made by Nunez in her original petition. In her remáining eleven reply points, Nunez basically makes only two other suggestions as to why the trial court’s decision might be upheld: (1> the administrative law judge’s decision, including additional findings of fact, did not include a concise and explicit statement of the underlying facts supporting the finding of fact regarding alcohol concentration, as required by section 2001.141(d) of the Texas Government Code, and therefore was arbitrary arid capricious; was in violation of that statute; was made upon unlawful procedure; violated her right to due process under the Fifth Amendment to the Constitution of the United States of America; and violated her right to due process under Art. I, sec.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
956 S.W.2d 603, 1997 Tex. App. LEXIS 5665, 1997 WL 691387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-department-of-public-safety-v-nunez-texapp-1997.