Texas Department of Public Safety v. Travis Darol Phillips

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

Texas Department of Public Safety

Appellant

Vs.                   No. 11-02-00046-CV B Appeal from Galveston County

Travis Darol Phillips

Appellee

This is a driver=s license suspension case.  The Texas Department of Public Safety (DPS) suspended Travis Darol Phillips=s driver=s license based upon his failure to give a breath or blood specimen after being arrested for driving while intoxicated on July 27, 2001. Phillips requested a hearing on the license suspension.  On August 29, 2001, following a hearing, the administrative law judge (ALJ) upheld the license suspension decision in an administrative order.  Phillips appealed to the County Court at Law No. 2 of Galveston County.   On November 16, 2001, following a hearing, the trial court reversed the decision of the ALJ and entered an AOrder Denying Suspension.@  The DPS appeals the trial court=s decision.  We reverse and render.

The trial court=s reversal of the ALJ was based upon its conclusion that there was no evidence that Phillips was given a Acomplete warning@ concerning the effect of a failure to give a blood or breath specimen.  The DPS raises three issues on appeal.  In its first and second issues, the DPS contends that the trial court erred because the ALJ properly admitted the DPS=s exhibits as evidence.  Two of the exhibits provided evidence that the police officer gave warnings to Phillips about the consequences of a failure to submit to the taking of a specimen.  At the administrative hearing, Phillips=s counsel objected to these two exhibits, claiming that the exhibits should be excluded because the DPS had failed to produce a part of one of the exhibits in response to Phillips=s request for production.  The ALJ overruled Phillips=s objection and admitted the exhibits.  Phillips=s counsel re-urged his complaint at the hearing in the trial court.

The DPS also argues that Phillips waived  his objection to the exhibits by failing to raise the objection as a preliminary matter before the administrative hearing.  In its second issue on appeal, the DPS asserts that, if part of a document is offered as evidence, the proper procedure is to admit that part of the document and to permit the other party, if that party wishes, to admit the remainder of the document under the rule of optional completeness.  Because we find, in our discussion below, that the ALJ did not err in overruling Phillips=s objection to the DPS=s exhibits, it is not necessary to determine whether Phillips waived his objection or address the rule of optional completeness. 

In its third issue on appeal, the DPS complains of the trial court=s finding that there was no evidence that Phillips was given a Acomplete warning@ concerning the effect of a failure to give a specimen.  We review driver=s license suspension cases under the substantial evidence standard.  Texas Department of Public Safety v. Pucek, 22 S.W.3d 63, 67 (Tex.App. - Corpus Christi 2000, no pet=n).  In Mireles v. Texas Department of Public Safety, 9 S.W.3d 128, 131 (Tex.1999), the Texas Supreme Court explained the standard as follows:

A court applying the substantial evidence standard of review may not substitute its judgment for that of the agency. The issue for the reviewing court is not whether the agency=s decision was correct, but only whether the record demonstrates some reasonable basis for the agency=s action.  Courts must affirm administrative findings in contested cases if there is more than a scintilla of evidence to support them.  In fact, an administrative decision may be sustained even if the evidence preponderates against it.  (Citations omitted)

Likewise, county courts at law have reviewed license suspension decisions of the ALJ under a substantial evidence standard.  Texas Department of  Public Safety v. Pucek, supra at 66.  The DPS suspended Phillips=s driver=s license under the provisions of TEX. TRANSP. CODE ANN. ch. 724 (Vernon 1999 & Supp. 2002). TEX. TRANSP. CODE ANN. ch. 524 (Vernon 1999 & Supp. 2002)  governs appeals of ALJ decisions in license suspension cases.  See Section 724.047.  Since Athe transportation code provides no more details regarding judicial review of license suspensions under chapter 524, we look to the Administrative Procedures Act (APA). See TEX. GOVT. CODE ANN. ' 2001 et seq.@  Texas Department of Public Safety v. Pucek, supra at 65.  The standard of review for driver=s license suspension cases is set forth in TEX. GOV=T CODE ANN. ' 2001.174 (Vernon 2000).  Under Section 2001.174, the county court at law Amay not substitute its judgment for [that of the ALJ] on the weight of the evidence.@  Texas Department of Public Safety v. Pucek, supra at 67; Section 2001.174. 

Section 2001.174(2) sets forth the circumstances under which the reviewing court must reverse or remand the case.  The court:

[S]hall 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 or 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.

The trial court=s reversal of the ALJ was based upon a finding that there was no evidence that Phillips was given a Acomplete warning@ concerning the consequences of the failure to give a blood or breath specimen.  We must examine the evidence before the ALJ to determine whether the trial court=s reversal was error.  Appellant did not call any witnesses at the hearing before the ALJ.  Appellant offered certified copies of three exhibits.  The exhibits are referred to in the record as DPS-1, DPS-2, and DPS-3.  DPS-1 was the Peace Officer=s Sworn Report and is also referred to as a DIC-23.  DPS-2 was the Statutory Warning and is also referred to as a  DIC-24. DPS-3 was a Notice of Suspension and is also referred to as a DIC-25.  Phillips objected to the admission of DPS-1 and DPS-2, claiming that the DPS had failed to produce the Aback@ page of the DIC-24 in response to Phillips=s request for production.  Phillips argued that, since the DPS failed to produce the entire DIC-24, the ALJ should exclude the DIC-23 (which incorporates the DIC-24 by reference) and the DIC-24 from evidence.  This was the only objection made by Phillips to the exhibits.  Phillips did  not offer any evidence that there was a back page of the DIC-24.  Phillips offered his request for production and DPS=s response to the request as exhibits. The DPS did not object to this offer, and the ALJ admitted the documents. 

The ALJ overruled Phillips=s objection and admitted DPS-1 and DPS-2 into evidence.  We review ALJ rulings Aon the admission or exclusion of evidence under the abuse of discretion standard we apply to trial courts.@  Texas Department of Public Safety v. Mendoza, 956 S.W.2d 808, 810 (Tex.App. - Houston [14th Dist.] 1997, no pet=n); citing City of Amarillo v. Railroad Commission of Texas, 894 S.W.2d 491, 495 (Tex.App. - Austin 1995, writ den=d).  The abuse of discretion test is defined as Awhether the court acted without reference to any guiding rules and principles@ or, in other words,  Awhether the act was arbitrary and unreasonable.@ Texas Department of Public Safety v. Mendoza, supra at 810; citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. den=d, 476 U.S. 1159 (1986).  The DPS had produced copies of all of its administrative hearing exhibits (DPS-1, DPS-2, and DPS-3) to Phillips in response to Phillips=s request for production.  Under these circumstances, the ALJ did not abuse her discretion in admitting DPS-1 and DPS-2 into evidence. 

Phillips did not object to the admission of DPS-3.  The ALJ admitted it as evidence.  After its exhibits were admitted, the DPS did not offer any more evidence.  Phillips did not offer any more evidence.

Based upon the evidence, the ALJ upheld the DPS=s suspension of Phillips=s license and issued its administrative decision upholding the DPS=s suspension of Phillips=s license.  In its decision, the ALJ made  findings on the four necessary elements to support a suspension of a driver=s license: (1) reasonable suspicion or probable cause existed to stop or arrest Phillips; (2) probable cause existed to believe that Phillips was operating a motor vehicle in a public place while intoxicated; (3) Phillips was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) Phillips refused to submit to the taking of a specimen on request of the officer.  See Texas Department of Public Safety v. Mendoza, supra at 813; citing Sections 724.042 and 724.043.

Additionally, under Section 724.015 of the Transportation Code, the police officer is required to give the driver certain written and oral warnings before requesting the driver to submit to the taking of a specimen.  DPS-2 establishes that the police officer gave warnings to Phillips concerning the  consequences of a failure to submit to the taking of a specimen.

In this case, the trial court  reversed the ALJ as a result of the conclusion that Athere was no evidence that [Phillips] was given a complete warning.@  The issue is whether substantial evidence supported the ALJ=s administrative decision.  We find that the DPS=s exhibits at the administrative hearing  provided the ALJ with a reasonable basis to make her findings. The police officer=s sworn statement (DPS-1) establishes that (1) the officer had reasonable suspicion or probable cause to stop or arrest Phillips, (2) probable cause existed to believe that Phillips was operating his motor vehicle in a public place while intoxicated, (3) Phillips was placed under arrest and was requested to submit to the taking of a specimen, and (4) Phillips refused to submit to the taking of a specimen on the request of the officer. 

The police officer gave the statutory warning (DPS-2) to Phillips.  It is signed by Phillips and the police officer. The statutory warning provides in part:

You are under arrest for an offense arising out of acts alleged to have been committed while you were operating a motor vehicle in a public place while intoxicated or an offense under Section 106.041, Alcoholic Beverage Code.  You will be asked to give a specimen of your breath and/or blood.  The specimen will be analyzed to determine the alcohol concentration or the presence of a controlled substance, drug, dangerous drug, or other substance in your body.

If you refuse to give the specimen, that refusal may be admissible in a subsequent prosecution.  Your license, permit, or privilege to operate a motor vehicle will be suspended or denied for not less than ninety (90) days if you are 21 years of age or older, or not less than one hundred twenty (120) days if you are younger than 21 years of age, whether or not you are prosecuted for this offense.

The statutory warning, also referred to as the DIC-24, contains additional warning language concerning the effect of submitting to the taking of a specimen when the analysis of the specimen shows detectable amounts of alcohol in the system.

The statutory warning given to Phillips substantially complies with the warning requirements set forth in Section 724.015.  Courts have considered  whether the DIC-24 substantially complies with the requirements set out in Section 724.015 and  have held that the DIC-24 does substantially comply with Section 724.015 .  See Moore v. State, 981 S.W.2d 701, 705-07 (Tex.App. - Houston [1st Dist.] 1998, pet=n ref=d); Shirley  v. Texas Department of Public Safety, 974 S.W.2d 321, 323-24 (Tex.App. - San Antonio 1998, no pet=n); Martin v. Department of Public Safety, 964 S.W.2d 772, 774-75 (Tex.App. - Austin 1998, no pet=n); Texas Department of Public Safety v. Butler, 960 S.W.2d 375, 376-78 (Tex.App. - Houston [14th Dist.] 1998, no pet=n); Held v. State, 948 S.W.2d 45, 52 (Tex.App. - Houston [14th Dist.] 1997, pet=n ref=d).

The ALJ=s ruling was supported by substantial evidence. The trial court=s reversal of the ALJ was error.  We reverse the judgment of the trial court, and we render judgment reinstating the decision of the administrative law judge.

JIM R. WRIGHT

JUSTICE

August 15, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.