Rene Peralez v. Noe Peralez ( 2011 )

NUMBER 13-10-562-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
MARIO ALBERTO CERDA, Appellee.
On appeal from County Court at Law No. 4
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides, and Vela
Memorandum Opinion by Justice Vela
This is an interlocutory appeal brought by appellant, the Texas Department of
Public Safety (―DPS‖), from an order granting a temporary injunction in favor of Mario
Alberto Cerda, the appellee. The injunction order requires the DPS to return Cerda’s
driver’s license to him. Cerda’s license had previously been suspended when he
refused to take a breath test after being arrested for driving while intoxicated. The DPS
first urges that the trial court erred ―by implicitly overruling the Department’s plea to the
jurisdiction based on Cerda’s failure to exhaust his administrative remedies.‖ By its
second issue, the DPS complains that the trial court erred in finding Cerda had a probable
right to have his driver’s license restored based on Cerda’s claim that he was acquitted of
the driving while intoxicated charge. We vacate the trial court’s order granting a
temporary injunction and dismiss the cause for lack of jurisdiction.
I. BACKGROUND
The underlying facts are not in dispute. On December 4, 2009, Cerda was
arrested for driving while intoxicated. On that same date, he was given notice that his
driver’s license was being suspended for failure to take a breath test. See TEX. TRANSP.
CODE ANN. § 724.032 (Vernon Supp. 2010). Cerda did not appeal the suspension in
accordance with section 724.041 of the transportation code. See id. § 724.041 (Vernon
Supp. 2010). On June 28, 2010, the trial court granted Cerda’s motion to suppress and
then granted the State’s motion to dismiss based on insufficient evidence in the driving
while intoxicated case.
Cerda then attempted to have his license returned, but DPS denied his request.
He then filed an ―original petition for writ of mandamus and request for injunctive relief,‖
claiming that, because he was ―acquitted‖ of the driving while intoxicated charge, he was
entitled to have the suspension lifted. See id. § 524.015(b) (Vernon Supp. 2010). DPS
responded by filing a plea to the jurisdiction, arguing that Cerda failed to exhaust
mandatory administrative remedies.
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The trial court held a hearing, after which it granted Cerda the relief he requested,
stating in its order that Cerda had a probable right of recovery and would suffer
irreparable injury if his license was not returned to him. Implicitly, the trial court overruled
DPS’s plea to the jurisdiction.
II. STANDARD OF REVIEW
When reviewing a challenge to the trial court’s subject matter jurisdiction, appellate
courts review the trial court’s ruling de novo. Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 228 (Tex. 2004). Subject-matter jurisdiction is essential for a court to
have authority to decide a case; it is never presumed, cannot be waived, and can be
raised any time. See Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008); Tex. Ass’n of
Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).
This case is also an appeal from an order granting a temporary injunction. We
review the trial court’s order granting a temporary injunction under the abuse of discretion
standard. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978); Matagorda Hosp. Dist. v.
City of Palacios, 47 S.W.3d 96, 99 (Tex. App.–Corpus Christi 2001, no pet.).
III. ANALYSIS
When an individual’s driver’s license is suspended, the right to appeal is set forth in
chapter 724 of the transportation code. See TEX. TRANSP. CODE ANN. § 724.041 (Vernon
Supp. 2010). If an individual fails to exhaust administrative remedies, the trial court lacks
subject matter jurisdiction and it must dismiss the case. See id. § 724.044 (Vernon
1999) (stating that the department’s suspension is final and may not be appealed if the
person fails to request a hearing under section 724.041); see Thomas v. Long, 207
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S.W.3d 334, 340 (Tex. 2006); see also Kurtzemann v. Texas Dep’t of Pub. Safety, No.
01-08-00543-CV, 2009 WL 2396112 at *2 (Tex. App.–Houston [1st Dist.] Aug. 6, 2009
pet. denied). There is no dispute here—Cerda did not exhaust his administrative
remedies under the transportation code. We hold, therefore, that the trial court was
without subject matter jurisdiction to hear the temporary injunction and, accordingly, we
sustain DPS’s first issue.
Moreover, even if we were to reach the merits of this case, Cerda could not prevail.
He cannot show a probable right to recover because he was not acquitted of the criminal
charge.1 A license suspension may not be imposed on a person who is acquitted of a
criminal charge under enumerated sections of the Texas Alcoholic and Beverage Code.
See TEX. TRANSP. CODE ANN. § 524.015 (Vernon Supp. 2010). An acquittal is an official
fact finding that the accused is not guilty of the criminal offense with which he is charged.
Ex parte George, 913 S.W.2d 623, 627 (Tex. Crim. App. 1995). However, a pre-trial
order of dismissal is not regarded as an acquittal. Tex. Dep’t of Pub. Safety v. Nielsen,
102 S.W.3d 313, 316 (Tex. App.–Beaumont 2003, no pet.) (holding that the prosecutor’s
dismissal of criminal charges was not tantamount to an acquittal); Tex. Dep’t of Pub.
Safety v. Norrell, 968 S.W.2d 16, 19-20 (Tex. App.–Corpus Christi 1998, no pet.) (same).
Here, the evidence was undisputed that the case against Cerda was a pre-trial
dismissal for lack of sufficient evidence; he was not acquitted. We sustain DPS’s second
issue.
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In order to prevail on a temporary injunction, the applicant must plead and prove: (1) a cause of action
against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable
injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
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IV. CONCLUSION
Because the trial court was without jurisdiction to act, we vacate the trial court’s
order granting the temporary injunction and dismiss the cause for want of jurisdiction.
ROSE VELA
Justice
Delivered and filed the
10th day of February, 2011.
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