      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-08-00659-CV



                         Texas Department of Public Safety, Appellant

                                                  v.

                               Stephen Joseph Caruana, Appellee


                FROM COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
         NO. 12,077-C, HONORABLE HOWARD S. WARNER, II, JUDGE PRESIDING



                               DISSENTING OPINION


               I respectfully dissent.

               I do not believe that section 524.011(b)(4) of the transportation code and SOAH rule

159.23(c)(7), individually or together, bar admission of an officer’s unsworn report at a

license-suspension hearing, particularly under the facts of the present case. First, SOAH rule

159.23(c)(7) does not bar the admission of an unsworn report. The rule is one of inclusion,

providing that an officer’s sworn report shall be admitted as a public record. The rule does not,

however, either on its face or by inference, prohibit admission of an unsworn report that would

otherwise be admissible as a public record under the Texas Rules of Evidence. Second, although

the transportation code requires an officer to deliver a “sworn report” to the Department after a DWI

arrest, the code provides no sanction if the officer fails to comply or makes a mistake in his attempt

to comply. Moreover, the relevant provision does not address the admissibility of evidence in a
license-suspension hearing. Consequently, even if we assume that the legislature intended to impose

a sanction for an officer’s failure to send a “sworn” report, it is not at all clear that barring the

report’s admission in a license-suspension hearing is what the legislature intended. Third, except

as otherwise provided by statute or SOAH rule, the rules of evidence apply in license-suspension

hearings. See Tex. Gov’t Code Ann. § 2001.081 (West 2008); 1 Tex. Admin. Code § 159.23(b)

(2008) (State Office of Admin. Hearings, Hearing), repealed by 34 Tex. Reg. 329 (2009).

                Our task is to decide whether, in light of the foregoing, the ALJ abused his discretion

by admitting Trooper Flores’s unsworn report. Given that no rule or statute barred admission and

that the document was otherwise admissible, I would hold that the ALJ did not abuse his discretion

by admitting the report. Accordingly, I would hold that the agency order was supported by

substantial evidence and that the trial court should have affirmed the administrative decision.


(i) SOAH’s Rules Do Not Prohibit Admission of an Unsworn Report as a Public Record

                We construe administrative rules in the same manner as statutes since they have the

force and effect of statutes. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999).

Unless the rule is ambiguous, we follow the rule’s clear language. Id. Our primary objective in

interpreting a rule is to give effect to the agency’s intent.           Id.   We defer to an agency’s

interpretation of its own rule unless it is inconsistent with the rule or is plainly erroneous. Id. at 255.

“We should not interpret a rule in a way that renders its language meaningless.” R.K. v. Ramirez,

887 S.W.2d 836, 842 (Tex. 1994).

                SOAH rule 159.23(c)(7) states:




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       An officer’s sworn report of relevant information shall be admissible as a public
       record. However, the defendant shall have the right to subpoena the officer in
       accordance with § 159.17 of this title (relating to Request for Subpoenas). If the
       defendant timely subpoenas the officer and the officer does not appear at the
       scheduled hearing, the officer’s report shall not be admissible.


1 Tex. Admin. Code § 159.23(c)(7) (2008). The rule does two things. First, it confirms that a sworn

report is admissible as a public record. Second, it provides a sanction if the arresting officer is

subpoenaed but fails to appear at the hearing. Nothing in the rule suggests that SOAH’s intent in

crafting the rule was to prohibit the admission of unsworn reports as public records, provided that

the reports otherwise meet the requirements of the Texas Rules of Evidence. The majority reads an

exclusionary provision into the rule where none exists. See Rodriguez, 997 S.W.2d at 254 (unless

rule is ambiguous we follow its plain language).

               The majority attaches significance to the fact that SOAH specifically provided for the

admission of a “sworn report” as a public record, yet did not make rules for the admission of other

evidence.   The majority reads this rule, in conjunction with section 524.011(b)(4) of the

transportation code’s requirement that an officer send a “sworn” report to the Department, to exclude

reports that are unsworn. This conclusion assumes either that SOAH rule 159.23(c)(7) is the basis

for admission of the report—i.e., that it renders an otherwise inadmissible document admissible as

a public record—or that, by wording the rule as it did, SOAH at least intended to highlight

something about the form of the document that was required to make it admissible as a public record,

presumably in light of section 524.011(4) of the transportation code, which arguably requires an

officer to transmit to the Department a report under oath. Another implicit assumption is that SOAH

presumably would not have bothered to make this rule if the report was already admissible as a

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public record—it would not just restate the obvious. I disagree with those assumptions and the

ultimate conclusion they are used to buttress, because they wander beyond the confines of two basic

tenets of rule interpretation. First, unless the rule is ambiguous—which this one is not—we follow

its plain language. Rodriguez, 997 S.W.2d at 254. Here, the rule’s plain language does not bar

admission of an unsworn report. Second, we defer to an agency’s interpretation of its own rule

unless it is inconsistent with the rule or is plainly erroneous. Id. at 255. Here, the ALJ interpreted

the rule not to prohibit the admission of an unsworn report as a public record, a conclusion that is

neither inconsistent with the plain language of the rule nor plainly erroneous. These two tenets of

rule interpretation, applied here, could and should end our analysis. Yet we have, in addition,

definitive evidence of SOAH’s intent in making this rule from the Texas Register, which the Texas

Supreme Court has called “[o]ur best source for the [agency’s] intent.” Id. at 254.


       With regard to §159.23(c)(7), one commenter indicated that the form of the “sworn
       report” should comply with the description of an affidavit pursuant to Texas
       Government Code §312.011. The commenter stated his concern that amending the
       language from “affidavit concerning probable cause to arrest...” in §159.23(c)(6) to
       “sworn report of relevant information...” in §159.23(c)(7) would erroneously broaden
       the admissibility of this report. SOAH disagrees with the comments and arguments
       advanced . . . . The statute [transportation code section 524.011(b)(4)(D)] refers to
       a “sworn report,” not to an affidavit. . . . The admissibility of the sworn report is
       based on its status as a public record per case law, Porter v. Texas Dep’t of Transp.,
       712 S.W.2d 263 (Tex. App. San Antonio 1986), and not on any perceived similarity
       to an affidavit.


24 Tex. Reg. 1324-25 (Feb. 26, 1999).

               In light of the comments in the Texas Register, it is clear that SOAH never intended

to prohibit admission of an “unsworn” report, but rather understood that an officer’s report was



                                                  4
admissible because it was a public record, not because it bore any resemblance to an affidavit.

SOAH’s intent when adopting the term “sworn report” apparently was to adopt the nomenclature of

the transportation code, not to insist that an officer’s report be sworn in order to be admissible. See

id. at 1325 (“[T]his subsection was amended to more closely track the language in Texas

Transportation Code §524,011(a)(2)(B) [sic] and §524.011 (b)(1-4) [sic].”). Rule 159.23(c)(7),

therefore, merely restates the law as SOAH understood it: an officer’s report on the circumstances

of a DWI arrest—regardless of what it is called—is admissible as a public record.1 In sum, the rule

does not bar admission of an unsworn report, and, given SOAH’s intent in enacting the rule, it is

improper to infer that SOAH’s provision for the admissibility of a “sworn report” necessarily implies

that it meant to exclude a report that is not sworn.


Officer Flores’s Testimony Bolsters the Report’s Authenticity and Credibility

               Even taking as true the majority’s assumptions that SOAH, in crafting the rule to

admit “sworn reports,” meant somehow to cabin the introduction of other reports not made under

oath, it was still not an abuse of discretion for the ALJ to admit the unsworn report in this case in

light of Officer Flores’s live testimony at the hearing.2 If we assume the majority’s logic is correct,

there must have been some reason why SOAH chose to admit only a sworn report as a public record.

       1
          I need not speculate why SOAH felt the need to restate the law in its rule. I would note
only that to prevail at a hearing, the Department must establish by a preponderance of the evidence
that there was probable cause for stopping the defendant and that the defendant failed a blood or
breath test. See Tex. Transp. Code. Ann. § 524.035(a)(1)(A), (b) (West 2007). The officer’s report
may be a key piece of evidence offered for admission at most hearings. A convenient reiteration of
the law with respect to such a common piece of evidence might streamline the hearing process.
       2
          I am not suggesting that his testimony converted the document into a “sworn report,”
although I do not discount the possibility.

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Allowing admission of a public record is an exception to the hearsay rule, see Tex. R. Evid. 803(8),

so it is conceivable, though I think unlikely, that SOAH considered an unsworn report to lack the

trustworthiness or credibility that would come from having the report made under oath.

               Concern about admitting hearsay stems from problems with evaluating the

perception, memory, narration,3 and sincerity of a witness who is not present at the proceeding.

2 Kenneth S. Broun, et al., McCormick on Evidence § 245 (6th ed. 2006). Traditionally, courts have

overcome these problems by (1) administering an oath, (2) requiring the witness’s presence at trial,

and (3) subjecting the witness to cross-examination. Id. The public-records exception to the hearsay

rule allows such records to be admitted in spite of those problems because the circumstances of their

creation lead to a high probability of trustworthiness and accuracy. Id. § 295.

               In the present case, any problems with the perception, memory, narration, or sincerity

of the facts stated in the unsworn report were overcome by Officer Flores’s live testimony, under

oath and subject to cross-examination, that the facts stated in the report were true and correct. While

his testimony may or may not have transformed his “unsworn report” into a “sworn report,” it was

sufficient to permit the ALJ to conclude that the problems inherent with hearsay—perception,

memory, narrative, and sincerity—were overcome. In light of this, I cannot say that the ALJ abused

his discretion in admitting the unsworn report.




       3
        The narration problem involves evaluating if a non-present witness’s language accurately
conveys the impression of his or her perception of the events. 2 Kenneth S. Broun, et al.,
McCormick on Evidence § 245 (6th ed. 2006).

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(ii) Section 524.011 of the Transportation Code Does Not Bar Admission of an Unsworn Report

               “In construing a statute, our objective is to determine and give effect to the

Legislature’s intent. We look first to the plain and common meaning of the statute’s words. We

determine legislative intent from the statute as a whole and not from isolated portions.” Harris

County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009) (citations and internal

quotation marks omitted).

               Section 524.011(b)(4) of the transportation code states that, after arresting an

individual for DWI, a peace officer shall:


       (4) send to the [D]epartment not later than the fifth business day after the date of the
           arrest:

               (A) a copy of the driver’s license suspension notice;
               (B) any driver’s license taken by the officer under this subsection;
               (C) a copy of any temporary driving permit issued under this subsection; and
               (D) a sworn report of information relevant to the arrest.


Tex. Transp. Code Ann. § 524.011(b)(4) (West 2007) (emphasis added).

               While it appears that section 524.011 is mandatory, see Tex. Gov’t Code Ann.

§ 311.016 (West 2005) (“‘Shall’ imposes a duty.”), it is well settled that many statutes

containing such language are, in fact, directory.        As the supreme court noted in Schepps

v. Presbyterian Hospital:


       [I]f the statute directs, authorizes or commands an act to be done within a certain
       time, the absence of words restraining the doing thereof afterwards or stating the
       consequences of failure to act within the time specified may be considered as a
       circumstance tending to support a directory construction.



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652 S.W.2d 934, 936 (Tex. 1983). Furthermore, “[p]rovisions which are not of the essence of the

thing to be done, but which are intended for the purpose of promoting the proper, orderly and prompt

conduct of business, are not generally regarded as mandatory.” Id. That is the case here. The statute

commands an arresting officer to send certain items, including the arresting officer’s sworn report,

to the Department within five business days of the arrest. The statute does not, however, provide

a sanction for failing to comply with the provision. Moreover, the provision does not go to the

“essence of the thing to be done” in this case—allowing or barring admission of the report at a

license-suspension hearing.

               In a case similar to the present one, the Fourteenth Court of Appeals held that

subsections 524.011(a) and (b) were directory and that an officer’s failure to timely comply with

524.011(b)(4) did not allow the defendant to prevail in a license-suspension hearing. Texas Dep’t

of Pub. Safety v. Cortinas, 996 S.W.2d 885, 889 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

The present case is similar to Cortinas, except here the officer made an error in form rather than

timing. Thus, there is an equally strong argument in the present case that 524.011(b) should be

construed as directory. Here, the statutory provision requires the officer to submit a “sworn report,”

which arguably means that it must be made under oath. The statute provides no sanction for the

officer’s failure to comply with that requirement, just as in Cortinas, where the transportation code

provided no sanction for failing to meet the five-day deadline.

               The majority discusses and relies on the reasoning in Texas Department of Public

Safety v. Pruitt, 75 S.W.3d 634 (Tex. App.—San Antonio 2002, no pet.). I do not think that reliance




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is justified. Without revisiting the facts, Pruitt held that in a refusal4 case it was not an abuse of

discretion for an ALJ to admit an unsworn report in light of the fact that the statute did not require

the officer to file a sworn report. Id. at 639. The majority concludes that a logical implication of

Pruitt is that when the “statute specifically requires a ‘sworn report,’ as opposed to merely a written

one, [the report] must be properly sworn in order to be admissible.” Slip op., supra, at 7. The

court’s actual holding in Pruitt, however, was much narrower than the majority’s reading of it here.

Pruitt held that it was not an abuse of discretion to admit an unsworn report under the rules of

evidence when no other statutory requirement, administrative rule, or rule of evidence required the

report to be sworn in order to be admissible. That holding does not necessarily imply the

converse—i.e., that it is an abuse of discretion to admit, as a public record, an unsworn report when

(1) a statute that is entirely unrelated to the admissibility of evidence in a license-suspension hearing

requires, for whatever reason, that a “sworn report” be sent to the Department, but provides no

sanction for failure to comply, (2) there is no other rule prohibiting its admission, and (3) the report

is otherwise admissible as a public record.


(iii) The Transportation Code in Concert with the SOAH Rule Does Not Prohibit Admission of
      an Unsworn Report

                The majority concludes that “where the legislature requires an arresting officer to

provide a ‘sworn report,’ and where SOAH’s rules specifically provide that this ‘sworn report’ is

admissible as a public record . . . an unsworn report cannot also be admissible . . . .” Slip op., supra,


        4
           See Tex. Transp. Code Ann. §§ 724.031-.064 (West 1999 & Supp. 2009) (governing
license suspension in cases where arrested individual refuses to provide blood or breath specimen
for testing).

                                                   9
at 7. Under the rules of statutory interpretation, courts are not at liberty to infer such legislative

intent where it is not discernable from the plain language of an unambiguous statute. See Texas

Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004) (“If the statutory

language is unambiguous, we must interpret it according to its terms, giving meaning to the language

consistent with other provisions in the statute.”). Likewise, rule-interpretation principles do not

allow us to rewrite SOAH rule 159.23(c)(7), which unambiguously provides for the admissibility of

a sworn report, to bar the admission of an unsworn report that would be otherwise admissible under

the rules of evidence. See Rodriguez, 997 S.W.2d at 254.


(iv) The Department of Public Safety’s Rules Are Not Applicable to This Case

                Finally, the majority notes that, in failure cases such as this, the Department’s own

rules require that the officer provide a report that “shall be sworn to” and must contain, among other

things, the “officer’s sworn report.” 37 Tex. Admin. Code § 17.4(2)(B) (2008) (Texas Dep’t of Pub.

Safety, ALR Reports). It is clear that the Department’s rule requires the officer’s report to be sworn,

but the Department’s rules are not relevant to our decision here. First, the Department’s rules do not

purport to govern the admissibility of the report at a license-suspension hearing; that duty is entrusted

to SOAH by statute. See Tex. Transp. Code Ann. § 524.033 (West 2007) (hearing shall be held by

SOAH). Second, even if we refer to the Department’s rules to provide insight into the Department’s

interpretation of the transportation code, we find little guidance, as the Department’s rules are not

consistent with the code. In the refusal context, the Department’s rules require the officer to send

a “sworn report or probable cause affidavit” with other required documents in the administrative

license-revocation report, see 37 Tex. Admin. Code § 17.4(1)(B) (2008), even though the


                                                   10
transportation code requires only that the arresting officer file a “written report,” see Tex. Transp.

Code Ann. § 724.032(a)(4) (West Supp. 2009). In the failure context, where the code requires the

officer to send a “sworn report,” see id. § 524.011(b)(4)(D) (West Supp. 2009), the Department’s

rules require that the officer send a sworn report along with the administrative license revocation

report that must itself “be sworn to by the arresting officer,” see 37 Tex. Admin. Code § 17.4(2)(B)

(2008). These seemingly contradictory uses of the term “sworn report” either mean that, to the

Department, “sworn report” is a term of art simply naming the form that an arresting officer must

complete and transmit—a theory advanced by the Department here—or, at least, that we must be

wary of using the Department’s rules to inform our construction of the transportation code.


(v) The Report in the Present Case Meets the Requirements of a Self-Authenticating Public
    Record

               Essential to my conclusion in this case is the fact that the unsworn report was

admissible as a public record under the relevant rules of evidence. See Tex. R. Evid. 803(8) (report

detailing matters observed by the officer that he had a duty to report and containing factual findings

resulting from investigation admissible as public record), 902(1) (domestic public documents

authentic when filed with seal of state agency), 1005 (copies of public documents admissible if they

comply with authenticity requirements of rule 902(1)).


                                          CONCLUSION

               Neither the applicable transportation code section nor the applicable SOAH rule

prohibited admission of Trooper Flores’s unsworn report at Caruana’s license-suspension hearing,

and the report was otherwise admissible as a public record. Accordingly, I would hold that the ALJ

                                                 11
did not abuse his discretion by admitting the unsworn report. Because the report was properly in

evidence, there was substantial evidence to support the ALJ’s decision; therefore, the district court

erred by reversing it. I would reverse the district court’s judgment and render judgment affirming

the administrative decision.




                                      __________________________________________

                                      J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Filed: February 12, 2010




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