Opinion issued August 4, 2015




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-14-00585-CV
                           ———————————
                       JAMIE ANN CURRY, Appellant
                                        V.
          TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee


            On Appeal from the County Civil Court at Law No. 4
                          Harris County, Texas
                      Trial Court Case No. 1044653


                                 OPINION

      In her suit for judicial review, 1 appellant, Jamie Ann Curry, challenges the

judgment of the trial court affirming an administrative law judge’s (“ALJ”) order

granting the petition of the appellee, Texas Department of Public Safety (“DPS”),


1
      See TEX. TRANSP. CODE ANN. § 524.031 (Vernon 2007).
to suspend her driver’s license for 180 days. 2 Curry argues that (1) the ALJ abused

its discretion by entertaining and granting an oral motion to quash the witness

subpoena for the arresting officer on the day of the hearing; (2) the ALJ abused its

discretion by failing to dismiss the case against her when the arresting officer

failed to appear at the hearing; (3) the trial court abused its discretion by failing to

reverse the suspension of Curry’s license and remand the case to the ALJ for

further proceedings to determine whether the arresting officer had been properly

served in advance of the administrative hearing; and (4) the ALJ abused its

discretion in erroneously quashing the subpoena issued to the arresting officer

because the ALJ “was fully informed of the lawful means of service and [it]

recognized that the return of service was compliant with State Office of

Administrative Hearings (“SOAH”) rules.”

      We affirm.

                                     Background

      Curry was involved in a one-vehicle accident in which she struck a curb,

causing two flat tires, and collided with a light pole. Harris County Deputy Sheriff

J. Mayorga responded to the accident and found Curry buckled into the driver’s

seat and noted that the only other passenger was a small child. Curry was unable

to perform field sobriety tests and refused to provide a blood or breath specimen.


2
      See id. § 724.035 (Vernon 2008); id. § 724.042 (Vernon 2008).

                                           2
Deputy Mayorga arrested Curry for driving while intoxicated with a child

passenger and obtained a search warrant for a blood specimen. Testing of her

blood specimen indicated that she had a blood alcohol concentration of

0.29mg/100mL.

      DPS later filed a petition to suspend Curry’s driver’s license based on her

refusal to provide a breath or blood specimen, and she filed a request for a hearing

to be held before an ALJ. Prior to the hearing, Curry subpoenaed Deputy Mayorga

to testify at the hearing. The return of service indicated that the process server

“executed this subpoena by delivering a copy to Patrol Group, Sheriff’s Office in

person” at 1200 Baker Street, Houston, Texas.        Service was accepted by an

employee of the Patrol Group.

      At the hearing before the ALJ, DPS offered Deputy Mayorga’s sworn report,

the offense report, copies of the statutory warning forms provided to Curry,

Mayorga’s affidavit provided in support of the search warrant for obtaining a blood

specimen, and the results of her blood alcohol level test. Curry objected to the

admission of this evidence on the basis that Deputy Mayorga “was properly

served” but did not appear at the hearing. DPS then objected to the subpoena of

Deputy Mayorga and moved to quash based on improper service, arguing that the

return of service was not signed by Mayorga, and, thus, Curry failed to show that

the subpoena was properly served in person to the witness. Curry asked to contact



                                         3
her process server to discuss the service of the subpoena, which the ALJ allowed.

She then argued that the subpoena was served in compliance with the Harris

County Sheriff’s Office’s protocol for receiving these types of subpoenas and that

the return of service was made using the form required by SOAH’s procedural

rules.    In response, DPS argued that the service of the subpoena to Deputy

Mayorga was improper because the return of service did not indicate that service

was accomplished by alternative means—it stated that service was done “in

person,” but Deputy Mayorga was not the person who signed the acknowledgment

of receipt of the subpoena.

         The ALJ found that “[t]here was insufficient evidence that the subpoena was

served pursuant to SOAH Rule 159.103(f)(1)”3 and, accordingly, gave “full

weight” to Deputy Mayorga’s report. It further found the evidence sufficient to

uphold the suspension of Curry’s driver’s license.

         Curry sought judicial review in the trial court. The clerk’s record for this

case contains a complete copy of the administrative record. However, Curry failed

to file a reporter’s record indicating the nature of the evidence presented to or
3
         See 1 TEX. ADMIN. CODE § 159.103(f)(1) (Vernon 2013) (“The party who issues
         or is granted a subpoena shall be responsible for having the subpoena served in
         accordance with Texas Rule of Civil Procedure 176.5, or by accepted alternative
         methods established by a peace officer’s law enforcement agency.”); see also TEX.
         R. CIV. P. 176.5(b) (“Proof of service must be made by filing either: (1) the
         witness’s signed written memorandum attached to the subpoena showing that the
         witness accepted the subpoena; or (2) a statement by the person who made the
         service stating the date, time, and manner of service, and the name of the person
         served.”).

                                             4
considered by the trial court. The trial court affirmed the suspension of Curry’s

driver’s license.

                         Standard and Scope of Review

      A person whose driver’s license is suspended following an administrative

hearing is entitled to judicial review of the decision. TEX. TRANSP. CODE ANN.

§ 524.041(a) (Vernon 2013); Patel v. Tex. Dep’t of Pub. Safety, 409 S.W.3d 765,

767 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Judicial review of such

decisions is governed by the substantial evidence rule. Tex. Dep’t of Pub. Safety v.

Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam); Patel, 409 S.W.3d at 767–

68. Under this standard, reviewing courts must determine whether the agency’s

findings were supported by substantial evidence or whether the order was invalid

for some other reason. See TEX. GOV’T CODE ANN. § 2001.174 (Vernon 2008)

(setting out specific grounds for reversal of administrative order); Patel, 409

S.W.3d at 768. Whether substantial evidence supports an administrative order is a

question of law. Alford, 209 S.W.3d at 103; Patel, 409 S.W.3d at 768. “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.’” Patel, 409 S.W.3d at 768 (quoting Mireles v. Tex. Dep’t of Pub.

Safety, 9 S.W.3d 128, 131 (Tex. 1999)).




                                          5
      We must presume that the agency’s decision is supported by substantial

evidence, and we must affirm the ALJ’s decision if more than a scintilla of

evidence supports it. Id.; see also Mireles, 9 S.W.3d at 131 (reviewing court may

affirm “even if the evidence preponderates against” administrative order so long as

there is more than scintilla of evidence to support order). “We may not substitute

our judgment for the ALJ’s judgment ‘on the weight of the evidence on questions

committed to agency discretion.’” Patel, 409 S.W.3d at 768 (quoting TEX. GOV’T

CODE ANN. § 2001.174).

                Curry’s Failure to Provide a Reporter’s Record

      In its appellate brief, DPS argues that we must affirm the trial court’s ruling,

which affirmed the administrative decision, because Curry failed to arrange for the

filing of a reporter’s record and there is no evidence that Curry offered the

administrative record into evidence at the hearing before the trial court.

A.    Necessity of Reporter’s Record

      Generally, the appellant bears the burden to present a sufficient record to

show error requiring reversal. Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583

(Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Christiansen v. Prezelski,

782 S.W.2d 842, 843 (Tex. 1990)). The appellate record consists of the clerk’s

record and, if necessary to the appeal, the reporter’s record. TEX. R. APP. P. 34.1.

When there is no reporter’s record, we indulge every presumption in favor of the



                                          6
trial court’s findings. Bryant v. United Shortline Inc. Assurance Servs., N.A., 972

S.W.2d 26, 31 (Tex. 1998); see also Willms v. Ams. Tire Co., 190 S.W.3d 796, 803

(Tex. App.—Dallas 2006, pet. denied) (“[W]hen an appellant fails to bring a

reporter’s record, an appellate court must presume the evidence presented was

sufficient to support the trial court’s order.”). Furthermore, without a complete

record brought forward by the appellant, the court will conclude that the appellant

has waived the points of error dependent on the state of the evidence. Favaloro v.

Comm’n for Lawyer Discipline, 994 S.W.2d 815, 820 (Tex. App.—Dallas 1999,

pet. struck).

       Despite receiving notice from this court, Curry—who is not entitled to

proceed without payment of costs—failed to pay for the reporter’s record and it

was never filed. See TEX. R. APP. P. 37.3(c). In her third issue, Curry argues that

the trial court abused its discretion by failing to reverse the suspension of Curry’s

license and remand the case to the ALJ for further proceedings to determine

whether the arresting officer had been properly served in advance of the

administrative hearing. However, Curry has provided no record demonstrating that

she actually presented this argument to the trial court, nor has she presented a

record demonstrating that she identified for the trial court the evidence she

believed should have been considered. See Nicholson, 226 S.W.3d at 583 (holding

that appellant bears burden to present sufficient record to show error requiring



                                         7
reversal). Accordingly, we presume that Curry waived this point of error, and we

indulge every presumption in favor of the trial court’s findings. See Bryant, 972

S.W.2d at 31; Favaloro, 994 S.W.2d at 820.

      We overrule Curry’s third issue.

      However, even in light of Curry’s failure to file the reporter’s record, we

may consider and decide those issues or points that do not require a reporter’s

record for a decision. See TEX. R. APP. P. 37.3(c). Thus, we now turn to DPS’s

argument that we may not consider the remainder of Curry’s issues challenging the

ruling of ALJ because she has not filed a record establishing that she offered the

administrative record into evidence in the trial court proceeding.

B.    Admission of Administrative Record

      The Administrative Procedure Act (“APA”), which governs here, provides

that a party seeking judicial review of an agency’s decision “shall offer, and the

reviewing court shall admit, the state agency record into evidence as an exhibit.”

TEX. GOV’T CODE ANN. § 2001.175(d) (Vernon 2008).                    This provision is

mandatory. See Nueces Canyon Consol. Indep. Sch. Dist. v. Cent. Educ. Agency,

917 S.W.2d 773, 776 (Tex. 1996) (“[A]n administrative record must be offered

into evidence at the trial court in an appeal for judicial review brought under the

[APA].”); Tex. Dep’t of Pub. Safety v. Monroe, 983 S.W.2d 52, 55 (Tex. App.—




                                          8
Houston [14th Dist.] 1998, no pet.) (citing Tex. Dep’t of Pub. Safety v. Lavender,

935 S.W.2d 925, 929 (Tex. App.—Waco 1996, writ denied)).

      The APA further provides that “[a] court shall conduct the review sitting

without a jury and is confined to the agency record, except that the court may

receive evidence of procedural irregularities alleged to have occurred before the

agency that are not reflected in the record.”            TEX. GOV’T CODE ANN.

§ 2001.175(e); Nueces Canyon, 917 S.W.2d at 776. Regarding appeals from the

trial court’s judgment, the APA provides that they are taken “in the manner

provided for civil actions generally”; however, “the appellate courts habitually

review the agency order itself, not the trial court’s judgment.” TEX. GOV’T CODE

ANN. § 2001.901 (Vernon 2008); Lavender, 935 S.W.2d at 929 n.13; see also, e.g.,

Patel, 409 S.W.3d at 767–68 (analyzing sufficiency of evidence supporting ALJ’s

determination).

      An appellant may bring an administrative record in an appeal governed by

the APA to an appellate court as part of either the reporter’s record or clerk’s

record “so long as a court reporter’s certificate or other evidence demonstrates the

trial court admitted the record.” Nueces Canyon, 917 S.W.2d at 776; Monroe, 983

S.W.2d at 55. “Other evidence” demonstrating that the trial court admitted the

record includes a reporter’s record that indicated that the administrative record was

effectively admitted even if it was not actually admitted or a recitation in the trial



                                          9
court’s judgment indicating that it reviewed the administrative record.             See

Monroe, 983 S.W.2d at 55; Tex. Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 83

(Tex. App.—San Antonio 1997, no writ); Tex. Dep’t of Pub. Safety v. Latimer, 939

S.W.2d 240, 243–44 (Tex. App.—Austin 1997, no writ).

      Texas courts have also held that in some circumstances a reporter’s record

from the trial court is unnecessary, such as when there was no indication that the

trial court received or considered additional evidence independent of the

information contained in the agency record. Tex. Dep’t of Pub. Safety v. Raffaelli,

905 S.W.2d 773, 776 (Tex. App.—Texarkana 1995, no writ).               The court in

Raffaelli observed that the “trial court’s review is confined to the agency record

which, by law, the party seeking review must submit, and the trial court must

admit, into evidence.” Id. (citing TEX. GOV’T CODE ANN. § 2001.175(d)–(e)); see

also TEX. GOV’T CODE ANN. § 2001.175(b) (requiring agency to send reviewing

court entire record of proceeding under review, to be filed with clerk of court).

      DPS relies on Lavender to contend that we must affirm the trial court’s

ruling here solely based on Curry’s failure to establish that the trial court admitted

the administrative record into evidence. In Lavender, DPS argued that the trial

court committed an error of law by reversing the administrative order without the

record from that hearing being admitted into evidence. 935 S.W.2d at 929. The

court noted that an agency order is presumed to be legal and valid and that “[t]he



                                         10
burden is on the contestant to demonstrate that the order is erroneous.” Id. It held,

“Without the record from the agency hearing, we are unable to find that the

administrative order is not supported by substantial evidence or that it is infected

with some other error of law.” Id. The Lavender court concluded that “we must

have the record before us for examination” and that “[a]bsent evidence that the

court admitted the record into evidence, we have nothing to review and the

presumption of validity prevails.” Id. at 930. The court thus reversed the trial

court’s judgment, which reversed the agency’s suspension of Lavender’s license,

on the basis that “Lavender failed to place the agency record in evidence before the

trial court,” and it rendered judgment upholding the administrative suspension of

Lavender’s driver’s license. Id.

      Here, by contrast with Lavender, we do have the agency record before us as

part of the clerk’s record, as it was transmitted to the trial court clerk by the agency

pursuant to the provisions of the APA. See TEX. GOV’T CODE ANN. § 2001.175(b).

Furthermore, the trial court here affirmed the ALJ’s suspension of Curry’s license,

unlike the trial court in Lavender, which reversed the ALJ’s suspension. Thus, the

reporter’s record was not necessary to demonstrate the sufficiency of evidence to

overcome the presumption that the agency’s order was valid. See Lavender, 935

S.W.2d at 929.




                                          11
      We conclude that this case is more similar to Raffaelli. Although the record

on appeal does not contain any statement or certification establishing that the

administrative record was admitted into evidence during the hearing before the trial

court, the provisions of the APA limited the scope of the trial court’s review to the

agency record. See TEX. GOV’T CODE ANN. § 2001.175(e). By law, the party

seeking review must submit this record to the trial court, and the trial court must

admit it into evidence. See id. § 2001.175(d); Raffaelli, 905 S.W.2d at 776. There

is no indication that the trial court received or considered additional evidence

independent of the information contained in the agency record, and, without

evidence to the contrary, we must presume that the trial court fulfilled its statutory

duties to admit and consider the administrative record in ruling on Curry’s petition

for judicial review. See S. Ins. Co. v. Brewster, 249 S.W.3d 6, 13 (Tex. App.—

Houston [1st Dist.] 2007, pet. denied) (“Well-settled law compels that we presume

that proceedings in the trial court, as well as its judgment, are regular and

correct.”); Raffaelli, 905 S.W.2d at 776 (“We presume the trial court proceedings

to be regular and in compliance with the law. Thus, we presume that the trial court

followed the law and admitted the agency record into evidence.”) (citations

omitted). As in Raffaelli, there is “no logical conclusion other than this: the

agency record—including a complete transcription of the administrative




                                         12
proceedings against [Curry]—is before us as part of the [clerk’s record] and can be

examined as part of the appellate review process.” See 905 S.W.2d at 776.

      Furthermore, we observe that the scope of our review requires us to examine

the decisions of the ALJ on Curry’s remaining issues, not the judgment of the trial

court. Lavender, 935 S.W.2d at 929 n.13; see, e.g., Patel, 409 S.W.3d at 767–68

(analyzing sufficiency of evidence supporting ALJ’s determination). The complete

administrative record is before us as part of the clerk’s record. We also observe

that Curry referenced the administrative record in her filings in the trial court, and

DPS did not object to these references even though it did object to other aspects of

Curry’s case, such as her attempt to take a deposition.

      The presumptions of law and evidence before us indicate that the

administrative record was at least constructively considered by the trial court, in

compliance with the requirements of Nueces Canyon that an appellant may bring

an administrative record in an appeal governed by the APA as part of either the

reporter’s record or clerk’s record so long as some evidence demonstrates that the

trial court admitted the record. 917 S.W.2d at 776; see also Tex. Health Enters.,

Inc. v. Tex. Dep’t of Human Servs., 949 S.W.2d 313, 314 (Tex. 1997) (discussing

requirements of Nueces Canyon and holding that where administrative record was

filed with district court clerk but not formally offered into evidence and statement

of facts and trial court order “leave no doubt . . . that both parties relied on the



                                         13
administrative record in their arguments and that the court based its decision on the

administrative record,” appeals court should treat administrative record as if it had

been admitted); Monroe, 983 S.W.2d at 56 (“Because there is some evidence the

county court at law considered the record of the administrative hearing, we find the

parties treated the record as admitted and this court will consider such record on

appeal.”); Tex. Dep’t of Pub. Safety v. Guajardo, 970 S.W.2d 602, 605 (Tex.

App.—Houston [14th Dist.] 1998, no pet.) (applying Nueces Canyon and Texas

Health Enterprises in treating administrative record as if it had been admitted into

evidence because administrative record had been filed with county court clerk even

if not formally admitted into evidence, “both parties’ contentions were based on

the materials in the administrative record, and both sides and the court proceeded

as if the record was in evidence”); Stacy, 954 S.W.2d at 83 (“Under these

circumstances, when there is no confusion about the record before the trial court

[despite the failure to admit the administrative record into evidence in the trial

court], we may review the administrative record that appears in our transcript.”).

And we are mindful of the admonition that we “cannot avoid [our] obligation to

‘address every issue raised and necessary to final disposition of the appeal’ by

elevating form over substance.” Nueces Canyon, 917 S.W.2d at 775–76 (quoting

Office of Pub. Util. Counsel v. Pub. Util. Comm’n, 878 S.W.2d 598, 599 (Tex.

1994) (per curiam)).



                                         14
      We conclude that we may consider the merits of Curry’s first, second, and

fourth issues in light of the administrative record before us.

             ALJ’s Ruling Quashing Subpoena of Deputy Mayorga

      In her first, second, and fourth issues, Curry argues that the ALJ erred in

quashing her subpoena of Deputy Mayorga to appear at the agency hearing,

effectively challenging the ALJ’s fact finding that “[t]here was insufficient

evidence that the subpoena was served pursuant to SOAH Rule 159.103(f)(1)” and

its subsequent decision to give “full weight” to the deputy’s report. Specifically,

she argues that DPS’s objection to the subpoena was untimely and that the oral

motion to quash made at the hearing was inappropriate; that the ALJ erred in

finding that Deputy Mayorga was not properly served and in granting the motion to

quash; and that the ALJ erred by giving full weight to Deputy Mayorga’s report

because he failed to comply with the subpoena.

A.    Timeliness and Form of Objection to Subpoena and Motion to Quash

      In her first issue, Curry complains that the ALJ erred in considering DPS’s

objection to the subpoena because it was untimely and was made orally on the

record at the hearing. However, Curry did not object on this basis before the ALJ.

She asked that she be able to contact her process server to seek information about

the details of the service, which the ALJ allowed her to do. She then argued that




                                          15
the service was done in accordance with HCSO’s policies and was therefore

proper.

      A timely, specific objection is required to preserve a complaint for review on

appeal, and any complaint made on appeal must comport with the objection made

in the trial court. See TEX. R. APP. P. 33.1(a); Religious of Sacred Heart of Tex. v.

City of Houston, 836 S.W.2d 606, 614 (Tex. 1992); J.C. Penney Life Ins. Co. v.

Heinrich, 32 S.W.3d 280, 290 (Tex. App.—San Antonio 2000, pet. denied).

Because Curry failed to complain about the timeliness or form of the motion to

quash before the ALJ, she waived these complaints for consideration on appeal.

      We overrule Curry’s first issue.

B.    The ALJ’s Ruling Quashing the Subpoena

      In her fourth issue, Curry argues that the ALJ abused its discretion in

quashing the subpoena issued to Deputy Mayorga because the ALJ “was fully

informed of the lawful means of service and [it] recognized that the return of

service was compliant with [SOAH] rules.” In her second issue, she argues that

she properly served Deputy Mayorga and that the ALJ erred in failing to dismiss

her case when he did not appear at the hearing.

      Texas Administrative Code (“TAC”) chapter 159 governs hearings on

administrative license suspensions. 1 TEX. ADMIN. CODE § 159.1(a) (West 2015);

Hodge v. Tex. Dep’t of Pub. Safety, No. 01-12-00259-CV, 2013 WL 4680378, at



                                         16
*1 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.). TAC

section 159.103 provides the rules governing subpoenas at an administrative

license suspension hearing. Section 159.103(f)(1) provides that “[t]he party who

issues or is granted a subpoena shall be responsible for having the subpoena served

in accordance with Texas Rule of Civil Procedure 176.5, or by accepted alternative

methods established by a peace officer’s law enforcement agency.” 1 TEX. ADMIN.

CODE § 159.103(f)(1) (West 2015). Rule of Civil Procedure 176.5(a) provides

generally that “[a] subpoena must be served by delivering a copy to the witness

and tendering to that person any fees required by law.” TEX. R. CIV. P. 176.5(a).

Rule 176.5(b) provides, “Proof of service must be made by filing either: (1) the

witness’s signed written memorandum attached to the subpoena showing that the

witness accepted the subpoena; or (2) a statement by the person who made the

service stating the date, time, and manner of service, and the name of the person

served.” TEX. R. CIV. P. 176.5(b).

      Here, the ALJ found that the evidence was insufficient to prove that Deputy

Mayorga was properly served.         We must presume that the ALJ’s finding is

supported by substantial evidence and affirm the ALJ’s decision if more than a

scintilla of evidence supports it. See Patel, 409 S.W.3d at 768; see also Mireles, 9

S.W.3d at 131 (reviewing court may affirm “even if the evidence preponderates




                                         17
against” administrative order so long as there is more than scintilla of evidence to

support order).

      Curry’s issue involves not just the weight of the evidence regarding service

of the subpoena on Deputy Mayorga, but also the ALJ’s decision to quash the

subpoena.     A reviewing court “shall 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 . . . arbitrary or

capricious or characterized by abuse of discretion or clearly unwarranted exercises

of discretion.”   TEX. GOV’T CODE ANN. § 2001.174(2)(F); Hodge, 2013 WL

4680378, at *2; see also In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig.

proceeding) (stating that trial court’s determination of motion to quash subpoena is

reviewed for abuse of discretion). An abuse of discretion occurs when the ALJ

acts arbitrarily or unreasonably, without reference to any guiding rules or

principles.   Hodge, 2013 WL 4680378, at *2 (citing Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).

      Here, the return of service stated that service of the subpoena was made in

person. However, the “acceptance of service” was executed by an employee of the

HCSO’s patrol group—not by Deputy Mayorga. Thus, the return of service here

did not comply with Rule 176.5(b).            It did not contain a signed written

memorandum of the witness showing that he accepted the subpoena, nor did it



                                         18
contain a statement by the person who made the service stating that service was

made in an alternative manner. See TEX. R. CIV. P. 176.5(b).

      Curry argues that she established at the hearing that Deputy Mayorga was

properly served because she followed the procedure required by the Harris County

Sheriff’s Office for serving deputies with subpoenas to appear at administrative

hearings and because she used the return of service form required by the SOAH

rules. However, the ALJ expressed a concern on the record at the hearing that she

could not be sure that Deputy Mayorga was actually employed at the patrol group

where service was made, and Curry offered no evidence on this issue. The ALJ

also recognized that Curry used the form required by the SOAH rules, but

observed that Curry’s process server could have made a notation on that form that

service was accomplished by an alternative method. Curry failed to provide any

argument or evidence indicating why that was not necessary.

      We conclude that at least a scintilla of evidence supports the ALJ’s finding

that the evidence was insufficient to prove that Deputy Mayorga was properly

served and that the ALJ did not abuse its discretion in quashing the subpoena on

this basis.   See TEX. GOV’T CODE ANN. § 2001.174(2)(F); Hodge, 2013 WL

4680378, at *2. Because the ALJ did not abuse its discretion in quashing the

subpoena, we conclude that it likewise did not err in giving Deputy Mayorga’s

report full weight. See 1 TEX. ADMIN. CODE § 159.211(c)(2) (West 2015) (“If the



                                        19
defendant timely subpoenas an officer and the officer fails to appear without good

cause, information obtained from that officer shall not be admissible.”) (emphasis

added); Tex. Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558, 564–65 (Tex.

2012) (holding that ALJ acted within its discretion in admitting unsworn report of

officer who did not appear at hearing).

      We overrule Curry’s second and fourth issues.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Evelyn V. Keyes
                                               Justice

Panel consists of Justices Keyes, Bland, and Massengale.




                                          20
