
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-280-CV
 
TEXAS DEPARTMENT OF PUBLIC SAFETY       
           
           
        APPELLANT
V.
JAMES NORRIS KIMBROUGH       
           
           
           
           
    APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
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OPINION
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The Texas Department of Public Safety (DPS)
appeals the trial court's judgment affirming the decision of an administrative
law judge (ALJ) that the evidence was insufficient to authorize suspension of
James Norris Kimbrough's driver's license. Because we conclude that DPS's
substantial rights were prejudiced by the ALJ's erroneous decision to exclude
two officers' reports, we will reverse and remand.
In February 2002, Kimbrough was arrested
for driving while intoxicated. Kimbrough failed three field sobriety tests and
refused to take a breathalyzer test after receiving statutory warnings. As a
result of his refusal to take a breathalyzer test, Kimbrough's driver's license
was suspended. See Tex. Transp. Code Ann. § 724.035 (Vernon Supp.
2003). He requested an administrative hearing to contest the suspension.
At the administrative hearing, DPS offered
four exhibits: (1) the arresting officer's sworn report notarized the day of the
arrest, (2) the arresting officer's supplemental eight-page sworn report, (3)
another peace officer's sworn report, and (4) copies of the statutory warnings
that Kimbrough received. The ALJ admitted exhibits one and four, but excluded
exhibits two and three on the basis that they were not forwarded to DPS by the
fifth business day after the arrest as required under section 724.032(c)(4) of
the Texas Transportation Code (the Code).(1) 
Id. § 724.032(c)(4).  The ALJ then ruled that DPS did not prove
reasonable suspicion to stop, or probable cause to arrest, Kimbrough. The ALJ
found that "a citizen observed certain driving activity" by Kimbrough,
but that it was "unclear what information was available to police officers
at the time of the traffic stop." The trial court affirmed the ALJ's
decision.
In its sole issue on appeal, DPS contends
that the ALJ misapplied the law and abused her discretion by refusing to admit
the contested exhibits at the administrative hearing because the five-day
deadline of section 724.032(c) of the Code had not been met. DPS contends that
the deadline was directory, not mandatory. DPS further contends that the trial
court erred by affirming the ALJ's decision.(2)
The statute on which the ALJ based her
ruling provides that, if a person refuses to take a breathalyzer test, the
officer "shall forward to the department not later than the fifth business
day after the date of the arrest . . . a copy of the refusal report." Tex.
Transp. Code Ann. § 724.032(c)(4). Kimbrough argues that the ALJ did not abuse
her discretion by excluding the contested exhibits because use of the word
"shall" in the statute imposes a duty to act that the officers who
filed the reports failed to comply with. Kimbrough asserts that, because the
officers failed to act in accordance with this duty, the ALJ's decision to
exclude the reports was not arbitrary or capricious. Kimbrough further contends
that DPS has not shown that its substantial rights were violated by the ALJ's
exclusionary ruling.
Whether a statutory provision is mandatory
or directory is a question of law, which we review de novo. Tex. Dep't of
Pub. Safety v. Mendoza, 956 S.W.2d 808, 811 (Tex. App.--Houston [14th
Dist.] 1997, no pet.). Whether a court abused its discretion is also a question
of law. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983); N.
Dallas Diagnostic Ctr. v. Dewberry, 900 S.W.2d 90, 93-94 (Tex. App.--Dallas
1995, writ denied); see also Tex. Dep't of Pub. Safety v. Silva, 988
S.W.2d 873, 875 (Tex. App.--San Antonio 1999, pet. denied) (holding that issue
of whether documents were properly excluded under rules of evidence is question
of law).
We generally construe the word
"shall" as mandatory unless legislative intent suggests otherwise. Albertson's,
Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999); see also Tex.
Gov't Code Ann. § 311.016(2) (Vernon 1998) (providing that use of
"shall" in statute imposes a duty unless context in which phrase
appears necessarily requires a different construction).(3) 
Because we find no legislative intent suggesting that the word "shall"
as used in section 724.032(c)(4) is to be construed in any manner other than
mandatory, we hold that the five-day forwarding requirement is mandatory.
DPS's mere failure to comply with this
mandatory statutory deadline, however, does not result in a punitive sanction
against DPS unless the statute provides for such a sanction. See State v.
$435,000.00, 842 S.W.2d 642, 644 (Tex. 1992).  Therefore, we must now
determine whether the legislature intended to penalize DPS when an officer fails
to forward a report within the mandatory five-day deadline by rendering the
report inadmissible at an administrative hearing.
Section 724.032 specifies no consequences
for failure to forward the report on time, nor does it state that proof of
compliance is a predicate to some other action.  Tex. Transp. Code Ann. §
724.032; Mendoza, 956 S.W.2d at 812.  The statute's language
indicates that the five-day requirement is simply a housekeeping measure
intended to benefit DPS by ensuring that the officer forwards the relevant
information to "the department" to allow time to prepare for a hearing
if the defendant should request one.  Tex. Transp. Code Ann. §
724.032(c)(4); see Mendoza, 956 S.W.2d at 812; Repschleger 951
S.W.2d at 934.
Because the legislature has expressed no
intent that DPS be penalized for the failure of an officer to submit a report
within the five-day deadline of section 724.032(c)(4), we hold that the failure
of an officer to comply with the statute does not render the report inadmissible
at an administrative hearing. We, therefore, hold that the ALJ abused her
discretion when she refused to admit DPS's exhibits two and three into evidence
at the hearing in this case on the ground that they were not forwarded by the
officer to DPS within five days.  See Huie v. DeShazo, 922 S.W.2d
920, 927-28 (Tex. 1996) (orig. proceeding) (holding that trial court's erroneous
legal conclusion, even in an unsettled area of law, is an abuse of discretion).
We further hold that the erroneous
exclusion of the exhibits prejudiced DPS's substantial rights because the ALJ
denied DPS the opportunity to meet its evidentiary burden at the license
suspension hearing. Evidence admissible under the Texas Rules of Evidence, along
with other necessary evidence that is not precluded by statute, is admissible at
license suspension hearings. See Tex. Gov't Code Ann. § 2001.081
(Vernon 2000); 1 Tex. Admin. Code § 159.23(b) (last amended 1999) (State Office
of Admin. Hearings). The excluded exhibits contain virtually all of DPS's
admissible evidence concerning reasonable suspicion to stop, or probable cause
to arrest, Kimbrough. The arresting officer's report (exhibit two) states that
the officer personally observed Kimbrough drive erratically, weave across
several lanes, and nearly cause an accident before the officer stopped him. The
report also states that Kimbrough was glassy-eyed, smelled strongly of alcohol,
had an open container of alcohol in his vehicle, and could not process or
remember information during the traffic stop or after the arrest. The other
officer's report (exhibit three) contains additional information that the police
learned during the traffic stop from the private citizen who initially reported
Kimbrough's erratic driving. The erroneous exclusion of this evidence was fatal
to DPS's ability to prove that the officer had reasonable suspicion to stop
Kimbrough or probable cause to arrest him for DWI--two issues DPS was required
to prove to obtain an administrative order sustaining the license suspension.
Tex. Transp. Code Ann. §§ 724.042-.043 (Vernon Supp. 2003).
Accordingly, we sustain DPS's issue on
appeal, reverse the ALJ's decision, and the trial court's judgment affirming it,
and remand the case to the ALJ for further proceedings. Tex. Gov't Code Ann. §
2001.174(2); Tex. R. App. P. 43.2(d).
 
                                                                       
JOHN CAYCE
                                                                       
CHIEF JUSTICE
 
PANEL F: CAYCE, C.J.; DAUPHINOT and
HOLMAN, JJ.
 
DELIVERED: April 24, 2003

1.  The arrest occurred on February 10, 2002, and
exhibits two and three were not notarized until March 16 and 22, respectively.
2.  DPS's right to appeal from an ALJ's decision is
limited to issues of law. Tex. Transp. Code Ann. §§ 524.041(d), 724.047
(Vernon 1999). If the ALJ made an error of law or abused her discretion and
violated DPS's substantial rights as a result, we must reverse the ALJ's
decision and remand for further proceedings. Tex. Gov't Code Ann. §
2001.174(2)(D), (F) (Vernon 2000); Tex. Dep't of Pub. Safety v. Doyle,
987 S.W.2d 897, 899 (Tex. App.--Fort Worth 1998, no pet.).
3.  Despite the use of "shall" in section
724.032, numerous courts have held that the five-day forwarding requirement is
directory, not mandatory. See, e.g., Tex. Dep't of Pub. Safety v.
Pruitt, 75 S.W.3d 634, 638 (Tex. App.--San Antonio 2002, no pet.); Mendoza,
956 S.W.2d at 811-12; Tex. Dep't of Pub. Safety v. Repschleger, 951
S.W.2d 932, 934 (Tex. App.--Houston [14th Dist.] 1997, no pet.); see
also Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956)
(noting that while courts generally construe "shall" as mandatory, it
"may be and frequently is held to be merely directory").


