Texas Department of Public Safety v. Kusenberger

HARDBERGER, Chief Justice,

dissenting.

The majority concedes that the officer’s testimony that he requested Kusenberger to submit a specimen of blood does not support the ALJ’s finding that Kusenber-ger failed to submit a specimen of breath. The majority, however, discounts the lack of evidence to support the ALJ’s finding because the majority asserts that the statute does not require the ALJ to specify the type of specimen the officer requested. The majority concludes that the trial court was charged in determining the reasonableness of the ALJ’s finding, not whether the finding was correct. The majority reverses the trial court’s judgment “[because the evidence supports the reasonableness of the ALJ’s order.” Because I believe the majority misinterprets section 2001.174(2)(E) of the Administrative Procedures Act (APA), I respectfully dissent.

The standard for the judicial review of a decision by an ALJ under section 2001.174(2)(E) requires a reviewing court to reverse an ALJ’s decision if the ALJ’s findings are not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole. See Tex. Govt. Code Ann. § 2001.174(2)(E) (Vernon Supp.2000). The majority opinion focuses on the reasonableness of the order. In doing so, the majority ignores that a two part test is applied in reviewing findings under a substantial evidence review. See Texas Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452-53 (Tex.1984); Southwestern Public Service Co./Public Utility Comm’n of Texas v. Public Utility Comm’n of Texas, 962 S.W.2d 207, 215 (Tex.App.—Austin 1998, pet. denied). The two questions to be asked are: (1) do the findings of underlying fact stated in the order fairly support the findings of ultimate fact or conclusions of law, stated as the basis of the agency decision; and (2) do the findings of underlying fact find reasonable support in the evidence adduced in the agency proceeding? See Texas Health Facilities Comm’n v. Charter Medical-Dallas, Inc., 665 S.W.2d at 453; Southwestem Public Service Co./Public Utility Comm’n of Texas v. Public Utility Comm’n of Texas, 962 S.W.2d at 215. The ALJ’s finding that Kusenberger refused to submit a specimen of breath is an underlying fact that must find reasonable support in the evidence adduced at the agency proceeding in order to satisfy the second prong of the substantial evidence test.

The issues at a driver’s license suspension hearing for the refusal to submit a specimen are: (1) reasonable suspicion or probable cause existed to stop or arrest the person: (2) probable cause existed to believe that the person was operating a motor vehicle in a public place while intoxicated; (3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) the person refused to submit to the taking of a specimen on request of the officer. TEX. TRANSP. CODE ANN. § 724.042 (Vernon 1999). In this case, the ALJ made findings on each of these issues. On appeal to the trial court, Kusenberger challenged the ALJ’s findings on the third and fourth issues. The trial court concluded that there was not substantial evidence of a refusal by Kusenberger.

With regard to the third and fourth issues, the ALJ found:

FINDING OF FACT 3: Officer Thompson placed the Defendant under arrest and properly asked her to submit a specimen of breath by reading her the Statutory Warning for and giving her a copy of the warning before asking for a specimen.

FINDING OF FACT 4: After being asked to submit a specimen of breath, the Defendant refused to submit a specimen.

In her brief, Kusenberger asserts that no evidence was presented at the administrative hearing regarding a request for a specimen of breath, or a refusal to submit a specimen of breath. I agree. The officer testified that he requested a specimen of Kusenberger’s blood. In his argument at the administrative hearing, Kusenberger’s attorney noted that a breath test was never offered, and DPS’s attorney agreed, responding:

As far as no breath test being offered, the Court is well aware that it is the officer’s choice which to give the defendant, breath or blood. And since they were at the hospital, blood was the best alternative since there was no intoxilyzer machine at the hospital.

I acknowledge that the statute permits an officer to request a specimen of either blood or breath. However, an ALJ’s findings must be supported by substantial evidence. This is a procedural requirement. When an ALJ makes specific findings based on the evidence presented at an administrative hearing, our job is to determine whether those findings are supported by a scintilla of evidence. We cannot change the ALJ’s findings to fit the record.

In this case, there is no evidence to support the ALJ’s findings that Kusenber-ger refused to submit a specimen of breath. Kusenberger’s substantial right to retain her driver’s license was prejudiced as a result of the ALJ’s findings. I would hold that the trial court, therefore, properly reversed the ALJ’s decision. Because the majority holds otherwise, I respectfully dissent.