      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                  ON MOTION FOR REHEARING



                                         NO. 03-08-00624-CV



                            Texas Department of Public Safety, Appellant

                                                    v.

                                        Frank Allocca, Appellee


               FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
         NO. C-1-CV-08-003145, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                                             OPINION


                   We overrule the appellants’ motion for rehearing, withdraw our opinion and judgment

issued August 31, 2009, and substitute the following in its place.

                   The Texas Department of Public Safety (the Department) appeals from the

trial court’s order reversing an administrative decision rendered by the State Office of Administrative

Hearings (SOAH), authorizing suspension of appellee Frank Allocca’s driver’s license. The

trial court reversed and restored Allocca’s driving privileges based on a determination that

the administrative decision was not supported by substantial evidence. We affirm the judgment of

the trial court.
                                         BACKGROUND

               At approximately 1:45 a.m. on June 5, 2007, Austin Police Department Officer

Shawn Williams was dispatched to a Jiffy Lube location on West Parmer Lane to investigate a

suspicious vehicle reported in the parking lot. Upon reaching the location, Williams observed

Allocca sleeping in the driver’s seat of his vehicle with the engine running. After waking Allocca,

Williams noted that he had glassy eyes, smelled of alcoholic beverages, and swayed upon exiting the

vehicle. Williams administered field sobriety tests, which gave some indication that Allocca was

intoxicated. Allocca also had five beers in his possession and admitted to Williams that he had

consumed two or three beers that evening. Based on his observations, Williams arrested Allocca for

driving while intoxicated (DWI). Allocca refused Williams’s request to provide a breath specimen

in connection with the arrest.

               Allocca’s driver’s license was suspended as a result of his refusal to provide a breath

specimen and he appealed the suspension to SOAH. See Tex. Transp. Code Ann. § 724.035

(West Supp. 2008) (Department shall automatically suspend driver’s license of person who refuses

to provide specimen upon arrest for DWI). The evidence presented at the administrative hearing

consisted solely of Williams’s incident report and Allocca’s testimony. Allocca testified that he was

the manager of the Jiffy Lube location where the incident occurred and that he had left his vehicle

parked behind the Jiffy Lube after work that day and gone to a sports bar with some friends.

According to Allocca, a friend’s girlfriend had driven him to the sports bar and then dropped him

off at his vehicle later that evening. Allocca testified that when he returned to his vehicle, he ate

some food and then reclined the driver’s seat in order to go to sleep. When asked why he chose to



                                                 2
sleep in his vehicle, Allocca answered, “Because I had already been arrested for DWI and knew I was

drinking and didn’t want to drive again.” Allocca further testified that the vehicle was not running

when he initially went to sleep, but that he later woke up and turned on the vehicle because he was

hot and wanted to use the air conditioning. During the time that Allocca was asleep in his vehicle,

his feet were on the floorboard and the vehicle was in park. The Department did not challenge

Allocca’s credibility on any portion of his testimony.1

               The administrative law judge (ALJ) issued an order suspending Allocca’s driver’s

license for two years and Allocca appealed to the county court at law of Travis County, arguing that

there was not probable cause to believe he had actually operated the vehicle while intoxicated. After

a hearing, the county court determined that the ALJ’s decision was not supported by substantial

evidence and issued an order reversing the administrative decision and reinstating Allocca’s driver’s

license. The Department now appeals, arguing in a single point of error that the county court erred

in reversing the ALJ’s decision because probable cause existed to believe that Allocca had operated

his vehicle while intoxicated.


                                   STANDARD OF REVIEW

               Administrative license revocation cases are reviewed using a substantial-evidence

standard. See Tex. Transp. Code Ann. § 524.002(b) (West 2007), § 724.047 (West 1999);

Tex. Gov’t Code Ann. § 2001.174 (West 2008); see also Texas Dep’t of Pub. Safety v. Varme,


       1
          Williams’s incident report states that he observed Allocca sleeping in the driver’s seat of
his truck with the engine running and that Allocca was “surprised” to be awakened by police. The
report further states that Allocca informed Williams that he left the engine running in order to check
the oil pressure on the truck and “he also wanted the truck engine on so he could have air
conditioning while he slept.”

                                                  3
262 S.W.3d 34, 38 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“Whether in the trial court or

this Court, the substantial-evidence standard governs review of administrative decisions in driver’s

license-suspension cases.”). Under substantial-evidence review, an administrative decision may not

be reversed unless substantial rights of the appellant have been prejudiced because the decision is:


       (A) in violation of a constitutional or statutory provision;

       (B) in excess of the agency’s statutory authority;

       (C) made through unlawful procedure;

       (D) affected by other error of law;

       (E) not reasonably supported by substantial evidence considering the reliable and
       probative evidence in the record as a whole; or

       (F) arbitrary or capricious or characterized by abuse of discretion or clearly
       unwarranted exercise of discretion.


Tex. Gov’t Code Ann. § 2001.174(2).

               Issues on appeal that are strictly questions of law are reviewed de novo. Texas Dep’t

of Pub. Safety v. Jackson, 76 S.W.3d 103, 106 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see

also Partee v. Texas Dep’t of Pub. Safety, 249 S.W.3d 495, 499 n.3 (Tex. App.—Amarillo 2007,

no pet.) (“Once the underlying facts are established, the existence of probable cause is a question of

law for the court.”).


                                          DISCUSSION

               At a driver’s license suspension hearing, the Department bears the burden of proving

that (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable



                                                  4
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 and asked to submit to a breath or blood test; and

(4) the person refused the request to provide a specimen. See Tex. Transp. Code Ann. § 724.042

(West Supp. 2008).

               Only the second factor remains in dispute in the present case, as Allocca conceded

in the administrative hearing that there was reasonable suspicion to investigate him, that he was

placed under arrest, and that he refused Williams’s request to provide a breath specimen.2

Furthermore, Allocca testified that the Jiffy Lube parking lot was open to the public and that, on the

night in question, he had been drinking to the point where he did not think he should drive.

Therefore, this appeal turns solely on the question of whether there is substantial evidence that

probable cause existed to believe that Allocca actually operated his vehicle while intoxicated. See

id. (requiring probable cause to believe person was “operating a motor vehicle in a public place

while intoxicated”) (emphasis added). More specifically, as the Amarillo court of appeals noted

when confronted with a similar question in Partee, the issue currently before us is “whether there

is substantial evidence in the record to support the ALJ’s finding that probable cause existed to

believe [appellant] was ‘operating’ a motor vehicle even though he was initially found asleep.”

249 S.W.3d at 499.

               While the transportation code does not provide a definition of “operating,” the court

of criminal appeals has held that for purposes of DWI, a defendant operates a vehicle when the



       2
         At the hearing, Allocca’s counsel stated, “On June 5 reasonable suspicion? Definitely. An
officer can walk up and talk to anyone. . . . Defendant was placed under arrest. Definitely.
Defendant refused. Definitely. On June 5 probable cause existed that the Defendant was operating
the vehicle? No, sir.”

                                                  5
totality of the circumstance demonstrates “that the defendant took action to affect the functioning

of his vehicle in a manner that would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388,

390 (Tex. Crim. App. 1995). This definition does not require that the vehicle actually move. See

id. (holding operation occurred when defendant started ignition and revved accelerator in attempt

to move vehicle).

               In support of its argument that there was probable cause to believe that Allocca was

operating the vehicle when Williams found him sleeping in it, the Department points to a number

of cases in which a driver was considered to have operated a vehicle despite being found asleep at

the wheel. See Dornbusch v. State, 262 S.W.3d 432, 433, 437-38 (Tex. App.—Fort Worth 2008,

no pet.) (holding that operation occurred where driver was found asleep, “hunched over the steering

wheel” in parking lot with headlights on and loud music playing and where “there was testimony

indicating that the vehicle was not in park and that the only thing keeping the vehicle from moving

was the curb”); Stagg v. Texas Dep’t of Pub. Safety, 81 S.W.3d 441, 445 (Tex. App.—Austin 2002,

no pet.) (concluding that probable cause existed that driver of vehicle blocking lane of traffic with

engine running and lights on had operated vehicle, noting that “[t]he fact that the car was in the

center of the street, not stopped at the curb, is significant”); Milam v. State, 976 S.W.2d 788, 789

(Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) (determining that operation occurred despite driver

being found asleep because engine was running, vehicle was in gear, driver’s foot was on brake, and

driver put car in reverse upon being awakened); Barton v. State, 882 S.W.2d 456, 460-61

(Tex. App.—Dallas 1994, no pet.) (holding that driver who was asleep at wheel with feet on clutch

and brake, engine idling, and car in roadway protruding into intersection, and who then proceeded



                                                 6
to engage clutch and change gears upon being awakened by police, operated vehicle).3 In each of

these cases, there was at least one additional factor, other than the driver being asleep with the engine

running, that indicated the driver had attempted or intended to drive the vehicle.

                Here, Allocca was not stopped in the middle of a roadway or in a moving lane of

traffic, but was parked in his usual parking space behind the building where he worked. He did not

have a foot on the brake and had not turned on the headlights.4 Furthermore, the car was in park, and

the front seat was reclined to better accommodate sleeping.5 The circumstances in which Allocca

was found, particularly the reclined front seat, would have made it difficult, if not impossible, for

Allocca to “enable the vehicle’s use” for its intended purpose—that being the purpose of driving,

rather than as a source of air conditioning. Therefore, we hold that Allocca did not take an “action

to affect the functioning of his vehicle in a manner that would enable the vehicle’s use” by sleeping

in the car with the front seat reclined, the car in park, the lights off, and the engine running solely




        3
           See also Partee v. Texas Dep’t of Pub. Safety, 249 S.W.3d 495, 500 (Tex. App.—Amarillo
2007, no pet.) (substantial evidence supported finding of probable cause to believe appellant was
operating motor vehicle when discovered asleep at wheel with foot on brake, engine running, brake
lights illuminated, gearshift engaged, and car straddling shoulder and roadside ditch); Hearne
v. State, 80 S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (driver operated vehicle
when found asleep at wheel in moving lane of traffic); Freeman v. State, 69 S.W.3d 374, 376
(Tex. App.—Dallas 2002, no pet.) (driver operated vehicle when found asleep with lights on, car in
drive, and wheel resting against curb of public street).
        4
          No evidence was presented at the administrative hearing regarding headlights, but
Allocca’s counsel represented at the hearing before the county court that the headlights were not
illuminated and the Department did not challenge this statement.
        5
         Prior to bringing this appeal, the Department did not challenge the factual assertions in
Allocca’s testimony, but argued that according to his own testimony, there was probable cause to
believe Allocca was operating the vehicle as a matter of law, based solely on the fact that the engine
was running.

                                                   7
for the purpose of air conditioning, while parked in a parking lot behind his place of employment.

See Denton, 911 S.W.3d at 390.

               The Department argues in its motion for rehearing that even if Allocca did not operate

his vehicle as a matter of law by turning on the engine to use the air conditioning, the ALJ decision

should be affirmed because Williams had probable cause to believe that Allocca had driven to the

Jiffy Lube parking lot while intoxicated, parked his truck, and then fallen asleep. We disagree.

While an officer need not observe an individual actually driving a vehicle in order to develop

probable cause to believe that individual had been driving while intoxicated, the mere act of sitting

in a legally parked vehicle while intoxicated does not necessarily establish probable cause absent

some other factor, such as a recent collision or bystander reports, indicating that the accused actually

drove the vehicle.6 See, e.g., Department of Pub. Safety v. Hirschman, 169 S.W.3d 331, 340

(Tex. App.—Waco 2005, pet. denied) (holding that substantial evidence supported finding of

probable cause where officer found appellee intoxicated behind wheel of vehicle that had been in

accident and multiple bystanders indicated appellee had been driving); see also Pope v. State,

802 S.W.2d 418, 420 (Tex. App.—Austin 1991, no pet.) (holding that where intoxicated individual

was found sleeping at wheel in vehicle parked in middle of rural road with engine running and lights

on, it was reasonable to infer that he drove there while intoxicated).




       6
          In this context, we are referring to those factual situations in which a driver is considered
to have actually driven, rather than merely “operated” the vehicle. We note that Williams’s arrest
report contains a preprinted portion which appears to allow the officer to note whether the accused
was observed “operating” or “driving” the vehicle, but that Williams did not indicate the basis for
his arrest.

                                                   8
               In the present case, Allocca was legally parked in a public parking space.7 His vehicle

showed no signs of being involved in a collision and was not blocking traffic or otherwise parked

in a manner that would indicate he had driven there while intoxicated. Furthermore, Williams

discovered Allocca sleeping in his vehicle after responding to a “suspicious vehicle” call, as opposed

to a report of a potentially intoxicated driver. The nature of the call not only illustrates the absence

of any report that Allocca had driven the vehicle while intoxicated, but also suggests that the vehicle

had remained in the parking space at least long enough to arouse suspicion. On that basis, we hold

that a finding that there was probable cause to believe Allocca had actually driven his vehicle to the

parking spot while intoxicated before falling asleep—assuming the ALJ even made such a finding,

given that this assertion was never argued in the administrative hearing—is not supported by

substantial evidence.8

               Viewing the totality of the circumstances, we conclude that Williams, in finding

Allocca asleep in his vehicle, did not have probable cause to believe he was operating or had

operated his vehicle while intoxicated. The administrative finding that probable cause existed to




       7
         Allocca was in fact parked in his usual parking space at his place of employment, although
the record does not reflect that Williams was aware of this fact at the time of the arrest.
       8
          The Department essentially conceded in its motion for new trial that the only possible basis
for a finding of probable cause is a determination that Allocca operated the vehicle as a matter of law
when he turned on the engine in the parking lot, as described in his testimony. Specifically, the
motion for new trial states, “The only reasonable inference remaining is that Allocca became
intoxicated and then took some action to cause the vehicle to function. It is no coincidence that
Allocca, himself, testified this is precisely what happened.” In the administrative hearing and in the
trial court, the Department took the position that probable cause existed, not because any evidence
supports a finding that Allocca actually drove the vehicle while intoxicated, but because he operated
the vehicle as a matter of law when he turned on the engine in the Jiffy Lube parking lot.

                                                   9
believe that Allocca was operating his vehicle while intoxicated is not supported by substantial

evidence, and the Department’s issue on appeal is overruled.


                                         CONCLUSION

               We affirm the trial court’s order reversing the administrative decision and reinstating

Allocca’s driver’s license.




                                              ___________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson;
  Dissenting Opinion by Justice Waldrop

Affirmed on Rehearing

Filed: November 13, 2009




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