Shashikant C. Patel v. Texas Department of Public Safety , 2013 Tex. App. LEXIS 9016 ( 2013 )

Opinion issued July 23, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00439-CV
———————————
SHASHIKANT C. PATEL, Appellant
V.
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 1006593
OPINION
In his suit for judicial review, 1 appellant, Shashikant Patel, challenges the
order of the county court at law affirming an administrative law judge’s (“ALJ”)
1
See TEX. TRANSP. CODE ANN. § 524.031 (Vernon 2007).
order granting the petition of the Texas Department of Public Safety (“DPS”) to
suspend his driver’s license for ninety days. 2 In two issues, Patel contends that the
ALJ authorized suspension of his driving privileges without evidence of a valid
alcohol test record and failed to grant his request for a continuance.
We affirm.
Background
Houston Police Department (“HPD”) Officer C. Guiran-Garzon stopped and
arrested Patel for suspicion of driving while intoxicated. DPS later filed a petition
to suspend Patel’s driver’s license, and Patel filed a request for a hearing to be held
before an ALJ. At the hearing, DPS offered into evidence Guiran-Garzon’s sworn
report in which he indicated that HPD Officer Tomeo saw Patel fail to signal while
changing lanes on three separate occasions. When he stopped Patel, Tomeo
noticed that Patel exhibited “slurred speech” and “red eyes.” Patel also exhibited
six signs of intoxication during a horizontal gaze nystagmus test (“HGN” test).
DPS also offered into evidence a notice of suspension of Patel’s driver’s license,
indicating that Patel had “provided a Specimen of blood or breath and an analysis
of the Specimen showed an alcohol concentration of .08 or greater, following an
arrest for an offense involving the operation of a motor vehicle.”
2
See id. § 542.022 (Vernon Supp. 2012); id. § 542.041 (Vernon 2007).
2
Finally, DPS offered into evidence a “Breath Test Technical Supervisor
Affidavit DIC-56.” In the affidavit, Lee Anne Spino, custodian of records for the
Texas Breath Alcohol Testing Program, testified that on September 22, 2011, a
breath test was administered to Patel by “J. Gomez.” Spino noted that “[a]nalytical
results of the aforesaid test disclosed alcohol concentrations of 0.167 and 0.173,
both of which were valid analytical results.” Patel objected to the admission of
Spino’s affidavit, arguing that because there was “no actual breath test slip
attached to the documentation,” a “breath test slip is a testimonial document,” and
“anything on that breath test slip would be just testimonial.” DPS asserted that,
although a breath test slip alone is not admissible evidence, a sworn affidavit with
testimony about its results is admissible evidence. The ALJ ruled that “even
though there’s no breath test slip,” the affidavit contained “all the information”
needed; thus, it admitted the affidavit into evidence “subject to [Patel’s] argument
as to weight and sufficiency.” Patel then asked for a continuance so that he could
“properly subpoena the officers involved or look at the documents and make a
determination on new strategy.” After DPS asserted that a continuance would be
improper and untimely, the ALJ denied Patel’s request.
The ALJ then found that Officer Guiran-Garzon had reasonable suspicion to
stop Patel and probable cause that Patel was operating a motor vehicle in a public
place while intoxicated. The ALJ further found that Patel was “operating a motor
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vehicle in a public place with an alcohol concentration of 0.08 grams or greater of
alcohol per 100 milliliters of blood as determined by [his] submission to a
blood/breath test as requested.” The ALJ then concluded that Patel’s license was
subject to suspension, and it ordered that DPS be authorized to suspend Patel’s
driving privileges for ninety days.
Patel filed an “Appeal Petition and Stay of Suspension” in the county court
at law, arguing that the ALJ had erred in considering Spino’s affidavit as evidence
of the breath test. After a hearing, the court found that the ALJ’s decision was
reasonably supported by substantial evidence, affirmed the ALJ’s decision, and
ordered that the suspension of Patel’s license continue. Patel then filed a new-trial
motion, arguing that DPS “did not establish that [his] breath test was valid, as
required by Statute,” and, after a hearing, the trial court denied his motion.
Sufficiency of the Evidence
In his first issue, Patel argues that the county court at law erred in affirming
the ALJ’s decision because DPS presented no evidence of a valid breath alcohol
test record and, thus, the ALJ’s decision was not reasonably supported by
substantial evidence.
A person whose driver’s license is suspended following an administrative
hearing is entitled to judicial review of the decision. See TEX. TRANSP. CODE ANN.
§ 524.041 (Vernon 2007). Judicial review is governed by the substantial evidence
4
rule. See Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006)
(per curiam) (quoting Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131
(Tex. 1999)); Tex. Dep’t of Pub. Safety v. Guajardo, 970 S.W.2d 602, 604 (Tex.
App.—Houston [14th Dist.] 1998, no writ). When reviewing an administrative
decision under the substantial evidence rule, the reviewing court “may affirm the
agency decision in whole or in part.” TEX. GOV’T CODE ANN. § 2001.174(1)
(Vernon 2008). It must reverse or remand the case if the challenger’s substantial
rights have been prejudiced because the administrative findings, inferences,
conclusions, or decisions are (1) in violation of a constitutional or statutory
provision, (2) in excess of the agency’s statutory authority, (3) made through an
unlawful procedure, (4) affected by other error of law, (5) not reasonably
supported by substantial evidence when considering the reliable and probative
evidence in the record as a whole, or (6) arbitrary or capricious or characterized by
abuse of discretion or clearly unwarranted exercise of discretion. See id.; see also
Guajardo, 970 S.W.2d at 604–05.
Whether substantial evidence supports an administrative order is a question
of law. Alford, 209 S.W.3d at 103. The dispositive issue for the reviewing court is
not whether the ALJ’s order was correct, but “whether the record demonstrates
some reasonable basis for the agency’s action.” Mireles, 9 S.W.3d at 131. We
must presume that the agency’s decision is supported by substantial evidence. Tex.
5
Dep’t of Pub. Safety v. Walter, 979 S.W.2d 22, 27 (Tex. App.—Houston [14th
Dist.] 1998, no pet.). Furthermore, the reviewing court must affirm the ALJ’s
decision if more than a scintilla of evidence supports it and may affirm “even if the
evidence preponderates against it.” Mireles, 9 S.W.3d at 131. We may not
substitute our judgment for the ALJ’s judgment “on the weight of the evidence on
questions committed to agency discretion.” TEX. GOV’T CODE ANN. § 2001.174
(Vernon 2008).
DPS must suspend the driving privileges of anyone the department
determines had an alcohol concentration level of .08 grams or greater while
operating a motor vehicle in a public place. TEX. TRANSP. CODE ANN. §
524.012(b)(1) (Vernon Supp. 2012); see also TEX. PENAL CODE ANN.
§ 49.01(2)(B) (Vernon 2011) (defining “intoxicated” as having alcohol
concentration of 0.08 or more). In order to prevail at a license-suspension hearing,
DPS is required to prove by a preponderance of the evidence that (1) the operator
had an alcohol concentration of a level of .08 or greater, while operating a motor
vehicle in a public place, and (2) there existed “reasonable suspicion to stop or
probable cause to arrest” the operator. See TEX. TRANSP. CODE
ANN. § 524.035(a)(1)(A), (2) (Vernon Supp. 2012).
Patel argues that DPS did not establish to the ALJ that his breath alcohol test
was valid under the Texas Administrative Code and, thus, there is no evidence that
6
he was operating a motor vehicle with an alcohol concentration level of .08 or
greater. The Texas Administrative Code provides,
(b) For purposes of an ALR suspension or disqualification
based on a breath test failure, a valid breath alcohol test
record is required. To be considered valid, the breath test
record must meet the following criteria:
(1) There must be no “invalid” message.
(2) Results must be clearly printed.
(3) All air blanks must be 0.000.
(4) The test record must bear the signature of the
breath test operator.
37 TEX. ADMIN. CODE § 17.5(b) (2012) (Tex. Dep’t of Pub. Safety, Intake). The
Code further provides that “[n]o additional report, memo, record, or maintenance
record is required to validate the breath alcohol test.” Id. § 17.5(c). Patel asserts
that “the record is devoid of any evidence that a valid breath alcohol test record” as
provided by section 17.5(b) “actually existed.”
Reading section 17.5(b) in context with the rest of the subchapter, we note
that the previous section, entitled “ALR Reports,” lists the documents that a peace
officer is required to submit to DPS after a motor vehicle operator has failed a
breath or blood alcohol test. Id. § 17.4(2) (2012) (Tex. Dep’t of Pub. Safety, ALR
Reports). Among the documents to be included in the report is “a copy of the
analysis of the specimen, such as a photocopy of the breath test result.” Id. §
7
17.4(2)(E). Although the section requires the peace officer to submit certain
documents to DPS, it is not “intended to imply that any specific documents are
necessary to be in evidence in a contested hearing for the department to meet its
burden.” Id. § 17.4(4).
The next section, entitled, “Intake,” provides that DPS “may reject an ALR
report and decline to prosecute any ALR suspension.” Id. § 17.5(a). It then
requires a valid breath alcohol test record and lists the four criteria cited by Patel
for a valid breath alcohol test. Id. § 17.5(b). And a later section, entitled,
“Hearings,” provides that all administrative hearings are governed in accordance
with the Texas Transportation Code and Title 1, Chapter 159 of the Texas
Administrative Code. Id. §17.9 (2012) (Tex. Dep’t of Pub. Safety, Hearings).
Thus, it is apparent that the four requirements listed in section 17.5(b) are for
DPS’s internal use when it is making an initial determination as to whether to
proceed with a license revocation. There is no indication that the legislature
intended the requirements of section 17.5(b) be met at the administrative hearing.
Cf. Tex. Dep’t of Pub. Safety v. Cortinas, 996 S.W.2d 885, 890 (Tex. App.—
Houston [14th Dist.] 1998, no pet.) (holding that DPS was not required to prove
officer’s compliance with administrative or statutory provisions directing him to
provide defendant copy of criminal complaint).
8
Rather, the Texas Transportation Code requires only that DPS establish at
the administrative hearing, by a preponderance of the evidence, that (1) the
operator had an alcohol concentration level of .08 or greater, while operating a
motor vehicle in a public place, and (2) there existed “reasonable suspicion to stop
or probable cause to arrest” the operator. See TEX. TRANSP. CODE ANN.
§ 524.035(a)(1)(A), (a)(2). And the Texas Transportation Code specifically
provides that:
(a) The reliability of an instrument used to take or analyze a
specimen of a person’s breath to determine alcohol
concentration and the validity of the results of the analysis may
be attested to in a proceeding under this subchapter by affidavit
from the certified breath test technical supervisor responsible
for maintaining and directing the operation of breath test
instruments in compliance with department rule.
(b) An affidavit submitted under Subsection (a) must contain
statements on:
(1) the reliability of the instrument and the analytical results;
and
(2) compliance with state law in the administration of the
program.
TEX. TRANSP. CODE ANN. § 524.038 (Vernon 2007) (emphasis added).
At the administrative hearing, the ALJ admitted into evidence Spino’s
affidavit, wherein she testified:
I am the custodian of the records and the Certified Technical
Supervisor for Area 003, Texas Breath Alcohol Testing Program. . . .
9
On or about 0255 CDT on 9/22/11 a breath test was administered to a
subject by the name of SHASHIKANT C. PATEL . . . .
The test was conducted by a certified breath test operator who is
trained in the required methodology for breath testing, namely J.
GOMEZ, Certificate No. 22229.
The records show that the test was administered in compliance with
the laws of the State of Texas and Regulations of the Breath Alcohol
Testing Program. Further, the records show that the aforesaid
instrument was reliable and in proper working condition at the time of
the test. The test is, therefore, a valid test according to the aforesaid
Regulations.
Analytical results of the aforesaid test disclosed alcohol
concentrations of 0.167 and 0.173, both of which were valid analytical
results.
(Emphasis added). The affidavit contained Spino’s statements concerning the
reliability of the testing instrument and compliance with state law; thus, it was
admissible as evidence of the validity of the blood alcohol test. Id. And the ALJ
also admitted into evidence Officer Guiran-Garzon’s sworn report, in which he
noted that Patel had provided a breath alcohol specimen with results of blood
alcohol concentration at 0.16 and 0.17.
Thus, DPS presented more than a scintilla of evidence that Patel operated a
motor vehicle with a blood alcohol concentration of over 0.08. See Mireles, 9
S.W.3d at 131. Accordingly, we hold that the county court at law did not err in
affirming the ALJ’s order authorizing suspension of Patel’s driver’s license on the
10
ground that DPS presented no evidence that Patel’s blood alcohol concentration
was greater than .08.
We overrule Patel’s first issue.
Denial of Continuance
In his second issue, Patel argues that the county court at law erred in
affirming the ALJ’s decision because he was entitled to a continuance of the ALJ
hearing after receiving Spino’s affidavit only two days before the hearing. He
argues that his substantial rights were prejudiced as a result of the ALJ’s denial of
his motion because he could have subpoenaed the involved officers to question
them about his breath alcohol test.
A defendant in a license-suspension hearing “shall be allowed to review,
inspect and obtain copies of any non-privileged documents or records in DPS’s
ALR file or in possession of DPS’s ALR Division.” 1 TEX. ADMIN. CODE
§ 159.151(1) (2013) (State Office of Admin. Hearings, Prehearing Discovery). “If
a document is received by the defendant fewer than ten calendar days prior to the
scheduled hearing, the judge shall grant a continuance on the request of a party.”
Id.
Whether an administrative agency failed to follow its own regulation is a
question of law. BFI Waste Sys. of N. Am., Inc. v. Martinez Envtl. Grp., 93 S.W.3d
570, 575 (Tex. App.—Austin 2002, pet. denied). Administrative rules are
11
construed in the same manner as statutes. Rodriguez v. Serv. Lloyds Ins. Co., 997
S.W.2d 248, 254 (Tex. 1999). To determine whether an administrative rule is
mandatory or directory, the reviewing court’s primary objective is to determine
and give effect to the agency’s intent. Lewis v. Jacksonville Bldg. & Loan Ass’n,
540 S.W.2d 307, 310 (Tex. 1976). Although there is no bright-line test, provisions
which are primarily for the purpose of promoting proper, orderly, and prompt
conduct of business are not generally regarded as mandatory. See id. Also, if the
provision directs that a certain act be done at a certain time and does not provide
for consequences should the act not be performed, the provision is usually
directory. See id.
Here, the administrative hearing was held on December 1, 2011. At the
hearing, Patel asserted that DPS did not provide him with Spino’s affidavit until
November 29, 2011, two days before the hearing, and he requested that the ALJ
grant him a continuance. DPS argued that the request was “improper and
untimely” because Patel had already announced that he was ready to proceed and
had “made a decision not to subpoena anyone.”
In Texas Department of Public Safety v. Pierce, the defendant argued that
the ALJ abused its discretion in denying his fourth request for a continuance when
DPS provided him a second copy of the offense report only two days before the
suspension hearing. 238 S.W.3d 832, 834 (Tex. App.—El Paso 2007, no pet.).
12
Under a predecessor version to the current rule, the Texas Administrative Code
provided that an ALJ “shall” grant a request for continuance if a document was
received by the defendant fewer than seven calendar days prior to the scheduled
hearing. Id. at 835. The El Paso Court of Appeals concluded that the provision
was directory, rather than mandatory, because it was designed to facilitate prompt
and orderly hearings, it did not provide a sanction in cases of non-compliance, it
did not specify a consequences for a denial of a continuance, and it did not identify
a further procedure for the party whose request for a continuance is refused. Id. at
836.
Furthermore, we note that the code later provides that the “granting of
continuances shall be in the sound discretion of the judge, provided however, that
the judge shall expedite the hearings whenever possible.” 1 TEX. ADMIN
CODE § 159.207(c) (2012) (State Office of Admin. Hearings, Continuances). “A
party requesting a continuance shall supply three dates on which the parties will be
available for rescheduling of the hearing.” Id. “Failure to include a certificate of
service, a certificate of conference, and three alternative dates may result in denial
of the continuance request. . . .” Id.
Though Patel, citing section 159.191, which is listed under the heading
“Prehearing Discovery,” asserts that he was entitled to a continuance, he did not
request a continuance until after the hearing had already commenced. And he did
13
not supply the ALJ with three alternative dates for a rescheduling of the hearing, as
required by section 159.207. Accordingly, we hold that the county court at law did
not err in affirming the ALJ’s order authorizing suspension of Patel’s driver’s
license on the ground that the ALJ abused its discretion in denying Patel’s motion
for continuance.
We overrule Patel’s second issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
14