                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                              NO. 02-10-00120-CV


BARRY M. WOOD, JR.                                                  APPELLANT

                                        V.

TEXAS DEPARTMENT                                                      APPELLEE
OF PUBLIC SAFETY


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       FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

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                                   OPINION
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      Barry Montgomery Wood Jr., appeals pro se the denial of his petition for

an occupational license.

      Mr. Wood‘s driver‘s license was suspended in 2005 for a number of

offenses, including two convictions for driving while intoxicated and one for

driving while his license was invalid. The last of these suspensions was lifted in

2007. Mr. Wood was incarcerated in 2008 for an unrelated offense and released
in March 2010 under a three-year term of supervised release. As part of his

supervised release, Mr. Wood secured employment, and he is required to attend

AA meetings, counseling sessions, and submit to random drug testing.

      Mr. Wood applied to renew his driver‘s license but was denied because he

owes $8,580.00 in surcharges under the Driver Responsibility Program. The

program assesses surcharges to drivers for various driving-related convictions

and requires suspension of a person‘s driver‘s license if he fails to pay the

amounts assessed. Tex. Transp. Code. Ann. §§ 708.002–.158 (Vernon Supp.

2010). The suspension continues until the driver pays the surcharges or enters

into an installment payment plan. Id. § 708.152.

      Mr. Wood is indigent and unable to pay the surcharges to lift the

suspension. The Department of Public Safety (DPS) sent Mr. Wood a letter

explaining that DPS would be implementing various programs to reduce or waive

surcharges for those who cannot pay them, but none of those programs will be in

effect until 2011. The letter also provided Mr. Wood instructions for applying for

an occupational license.

      Mr. Wood then petitioned the trial court for an occupational license,

claiming that his license was suspended for his failure to pay the surcharges and

that he has an essential need for transportation to and from work and other

locations as required by his probation plan. There is no reporter‘s record of the

hearing, but the clerk‘s record shows that DPS submitted a memorandum after

the hearing in which it argued that a person suspended for failure to pay the

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Driver Responsibility Program surcharges is not of the class of people to which

an occupational license may be granted.1 The court denied Mr. Wood‘s petition

for an occupational license ―for petitioner‘s failure to pay surcharges or enter into

an installment agreement.‖ Mr. Wood appealed. We construe his argument on

appeal to be that the court erred in denying his petition because he is of the class

of persons eligible for an occupational license and that he demonstrated

essential need. For the reasons below, we find that Mr. Wood should not have

been denied an occupational license for his failure to pay the surcharges.

                                   Standard of Review

      In a trial to the court where no findings of fact or conclusions of law are

filed, the trial court‘s judgment implies all findings of fact necessary to support it.

Pharo v. Chambers Cnty., 922 S.W.2d 945, 948 (Tex. 1996). In cases such as

this one where no reporter‘s record was made, we indulge every presumption in

favor of the trial court‘s judgment. See Bryant v. United Shortline Inc. Assurance

Servs., N.A., 972 S.W. 2d 26, 31 (Tex. 1998).



      1
        In its post-hearing memorandum of law, DPS argued that ―license‖ is
defined in the transportation code as including an occupational license, Tex.
Transp. Code Ann. § 521.001(6) (Vernon 2007), and therefore, because the
surcharge statute suspends a person‘s ―license‖ for failure to pay, id. §
708.152(b), a person suspended under the surcharge statute may not be granted
an occupational license because that license too is suspended. We note that this
is not the same argument that DPS makes on appeal. We do however believe it
is clear from the record that DPS has consistently argued in this case that, for
various reasons, a person suspended for failure to pay surcharges is ineligible for
an occupational license.

                                          3
                                      Discussion

      The occupational license statute provides for ―[a] person whose license

has been suspended for a cause other than a physical or mental disability or

impairment or a conviction under Section 49.04, Penal Code‖ to petition the court

for an occupational license. Tex. Transp. Code Ann. § 521.242 (Vernon 2007).2

The petition for an occupational license must describe the petitioner‘s ―essential

need‖ for the license, which is defined as a need to operate a motor vehicle

      (A) in the performance of an occupation or trade or for
          transportation to and from the place at which the person
          practices the person‘s occupation or trade;

      (B) for transportation to and from an educational facility in which the
          person is enrolled; or

      (C) in the performance of essential household duties.

Id. § 521.241 (Vernon 2007).3 While Mr. Wood had previously been convicted of

driving while intoxicated, the corresponding suspensions had all been lifted as of

September 2007. The only current suspension on Mr. Wood‘s driving license is

for his failure to pay the Driver Responsibility Program surcharges.

      Statutory construction is a legal question we review de novo. City of

Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). In construing statutes,

we ascertain and give effect to the legislature's intent as expressed by the

      2
       Section 49.04 of the penal code concerns driving while intoxicated. Tex.
Pen. Code Ann. § 49.04 (Vernon 2010).
      3
        DPS does not appear to dispute Mr. Wood‘s essential need for an
occupational license.

                                        4
language of the statute.     Id.   We construe a statute according to the plain

meaning of its words unless a contrary intention is apparent from the context, or

unless such a construction leads to absurd results. Id. at 625–26; see also Tex.

Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d

170, 177 (Tex. 2004) (noting that when statutory text is unambiguous, courts

must adopt the interpretation supported by the statute‘s plain language unless

that interpretation would lead to absurd results).

      DPS argues that construing the statute by its plain language would lead to

an absurd result.    There is no statutory limit on the number of successive

occupational licenses that may be granted to a driver who has been suspended

for reasons other than criminal convictions.         See Tex. Transp. Code Ann.

§ 521.242.    Because a suspension is in effect until the payment of the

surcharges, id. § 708.152(b), DPS argues that a suspended driver could

indefinitely avoid paying the surcharges by continuously petitioning for

occupational licenses.

      The statute is not ambiguous as to who may apply for an occupational

license, and thus we rely on its plain meaning. See Mega Child Care, 145 S.W.

3d at 177. Mr. Wood‘s license is not suspended for any of the listed reasons

which would prohibit him from obtaining an occupational license. The statutory

list is exclusive, and we cannot expand it.      Cf. Christus Health v. Beal, 240

S.W.3d 282, 286 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (stating that

―[u]se of the word ‗including‘ makes the list nonexclusive,‖ and noting that before

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the statute was amended to add ―including‖ in the definition, list of ―health care

providers‖ was an exclusive list); Tex. Gov‘t Code Ann. § 311.005(13) (providing

that ―includes‖ indicates an intent to create a nonexclusive list). If the legislature

had intended that drivers suspended for failure to pay surcharges be ineligible for

occupational licenses, we believe it would have said so. Because it has not, Mr.

Wood is eligible to petition for an occupational license.

      The Occupational License Act anticipates that some drivers would be

unable to pay their surcharges. Tex. Transp. Code. Ann. §§ 708.157(c), 708.158

(Vernon Supp. 2010). DPS has indicated a concern that indigent suspended

drivers would be effectively permanently suspended. See 32 Tex. Reg. 9295

(2007), adopted 33 Tex. Reg. 2041 (2008) (to be codified as an amendment to

37 Tex. Admin. Code § 15.162). The legislature has addressed this problem

prospectively though statutes which require DPS to establish indigency

programs. See Tex. Transp. Code. Ann. § 708.157 (c), 708.158; 35 Tex. Reg.

9920 (2010) (to be codified at 37 Tex. Admin. Code § 15.163).4 The stated intent

in creating the programs was to ―ensur[e] the license holder remains in

compliance with the law and in compliance with the surcharge program.‖ 35 Tex.

Reg. 9920 (2010).




      4
        We note that these programs are not yet in effect, and thus Mr. Wood is
unable to take advantage of them at this time.

                                          6
      Even when construing a statute that is unambiguous, the Code

Construction Act allows for consideration of the object sought to be obtained and

the legislative intent. Tex. Gov‘t Code Ann. § 311.023; see also Tex. Dep’t of

Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004). The very

intent of the indigency program belies DPS‘s argument in this appeal that

construing section 521.242 according to its plain language would lead to an

absurd result. That result is that a person whose license is suspended because

of his inability to pay surcharges may be able to obtain a license to legally drive

for certain essential needs. That is the same result the legislature and DPS has

deemed appropriate. See Tex. Transp. Code. Ann. § 708.157(c), 708.158; 35

Tex. Reg. 9920 (2010) (to be codified at 37 Tex. Admin. Code § 15.163). We

therefore believe that the legislature intended to allow a driver suspended under

the Driver Responsibility Act to petition for an occupational license.

      The statute is clear in its use of mandatory language that ―the judge who

hears the petition shall sign an order finding whether an essential need exists.‖

Tex. Transp. Code. Ann. § 521.244(a). The trial court did not deny Mr. Wood

based on his lack of essential need as required by the statute. Rather, the trial

court specified that it denied Mr. Wood‘s petition based on his ―failure to pay

surcharges or enter into an installment payment agreement.‖ Accordingly, the

trial court‘s denial of Mr. Wood‘s petition was without reference to any guiding

rule or principle and was an abuse of discretion.



                                          7
      The trial court erred in denying Mr. Wood‘s petition based on his failure to

pay his surcharges. We reverse the trial court‘s judgment and remand the case

to the trial court to determine Mr. Wood‘s essential need as required by the

statute.


                                            LEE GABRIEL
                                            JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: November 24, 2010




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