                          NUMBER 13-14-00114-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                          Appellant,

                                            v.

SERGIO ROBERTO NARVAEZ,                                                       Appellee.


               On appeal from the County Court at Law No. 5
                        of Hidalgo County, Texas.


                          MEMORANDUM OPINION

            Before Justices Rodriguez, Benavides, and Perkes
               Memorandum Opinion by Justice Rodriguez
       Appellant Texas Department of Public Safety (the Department) appeals the county

court at law's reversal of the decision of an administrative law judge (ALJ) that permitted

the Department’s suspension of appellee Sergio Roberto Narvaez’s driver’s license

pursuant to chapter 724 of the Texas Transportation Code. See TEX. TRANSP. CODE ANN.
§§ 724.013–.048 (West, Westlaw through 2013 3d C.S.) (governing license suspension

in cases where the arrested individual refuses to provide a breath specimen for testing).

By a single issue, the Department contends that the county court at law erred by reversing

Narvaez's driver's license suspension because the ALJ's decision was based on

substantial evidence.1 See id. § 724.042; see also id. §§ 724.031–.032. We reverse

the county court at law's judgment and render judgment reinstating the administrative

decision.

                                              I. BACKGROUND2

A.      Narvaez’s Arrest

        On May 9, 2013, Corporal Daniel Longoria stopped Narvaez for speeding.

Corporal Longoria noticed Narvaez had red, glassy eyes, and Narvaez admitted he had

been drinking alcohol. Corporal Longoria administered field sobriety tests to Narvaez.

Those tests led Corporal Longoria to believe Narvaez was intoxicated.                               Corporal

Longoria placed Narvaez under arrest for driving while intoxicated (DWI), read the

statutory warnings to Narvaez, and requested that Narvaez provide a breath specimen.

Narvaez refused the request.



         1 On June 4, 2014, this Court granted Narvaez’s retained counsel’s motion to withdraw. Counsel

advised us that he informed Narvaez of his withdrawal. He also told Narvaez that we ordered Narvaez to
notify us promptly if he retained new counsel and to file his brief on or before July 7, 2014. Narvaez has
not notified us that he has retained new counsel, and he has not filed an appellee's brief to assist us in the
resolution of this matter.

        2   Because Narvaez did not file a brief and controvert the facts set out in the Department’s statement
of facts, we accept the Department’s record-referenced statement as true. See TEX. R. APP. P. 38.1(g)
(“The brief must state concisely and without argument the facts pertinent to the issues or points presented.
In a civil case, the court will accept as true the facts stated unless another party contradicts them. The
statement must be supported by record references.”).

                                                      2
B.     The Administrative Hearing

       Narvaez requested a hearing to contest the suspension of his driver’s license for

refusing the breath test.    At the hearing before the State Office of Administrative

Hearings, Narvaez called Corporal Longoria as a witness. Narvaez also testified at the

hearing. The ALJ admitted, over Narvaez’s hearsay objection, the Department’s exhibit

marked DPS-1. Exhibit DPS-1 included Corporal Longoria’s sworn police report and its

incorporated documents—Narvaez’s offense report (THP-1), his notice of suspension

temporary driving permit (DIC-25), and his statutory warning (DIC-24), all of which were

signed by Corporal Longoria.

       After the hearing concluded, the ALJ sustained the suspension of Narvaez’s driver

license and issued the following findings of fact:

       1. On May 9, 2013, reasonable suspicion to stop the Defendant existed,
          in that a Texas peace officer within his jurisdiction observed the
          Defendant operating a motor vehicle in a public place in Texas. The
          officer observed the Defendant drive over the posted speed limit (45
          mph in a 30 mph zone).

       2. On the same date, probable cause to arrest the Defendant existed; in
          that probable cause existed to believe that Defendant was operating a
          motor vehicle in a public place while intoxicated, because in addition to
          the facts in No. 1, a Texas peace officer observed the Defendant had a
          strong odor of alcohol, and red, glassy eyes. The Defendant displayed
          6 of 6 clues of intoxication on the HGN test. The Defendant displayed
          additional clues of intoxication, including unsteady balance of the Walk
          and Turn and One Leg Stand tasks. The Defendant admitted drinking
          3 beers and 2 shots.

       3. Defendant was placed under arrest and was properly asked to submit a
          specimen of breath.

       4.    After being requested to submit a specimen of breath, Defendant
            refused.

                                             3
Based on the findings, the ALJ concluded that “the Department proved the issues set out

in Tex. Transp. Code Ann. § 724.042 and that Defendant’s license is subject to a

suspension for 180 days pursuant to Tex. Trans. Code Ann. § 724.035.” (Emphasis in

original.)

C.     Review by the County Court at Law

       Narvaez appealed the administrative decision to the Hidalgo County Court at Law

No. 5. In his petition of appeal from his driver’s license suspension, Narvaez asserted

the following: (1) there was not reasonable suspicion to stop Narvaez for speeding; (2)

there was not probable cause for his DWI arrest; (3) Corporal Longoria failed to warn him

of the his right to refuse the breath test and of the consequences; (4) the evidence of his

breath test refusal was illegally derived in violation of his state and federal constitutional

rights; (5) the Department failed to comply with section 724 of the Texas Transportation

Code; (6) the findings, inferences, and decisions were not reasonably supported by

substantial evidence; and (7) the findings, inferences, and decisions were arbitrary and

capricious. After the hearing, where Narvaez’s counsel and the Department’s counsel

presented arguments, the county court at law reversed the administrative decision. The

Department appeals from that order.

                                   II. STANDARD OF REVIEW

       Whether in the trial court or on appeal, courts reviewing an ALJ's decision on a

driver's license suspension apply the substantial evidence standard. Mireles v. Tex.

Dep't. of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999) (per curiam); see TEX. GOV'T CODE

ANN. § 2001.174 (West, Westlaw through 2013 3d C.S.) (setting out the standard of

                                              4
review under the substantial evidence rule)3; see also McKinley Iron Works, Inc. v. Tex.

Employment Comm'n, 917 S.W.2d 468, 470 (Tex. App.—Fort Worth 1996, no writ)

(“‘Substantial evidence’ means that, upon the evidence as a whole, reasonable minds

could have reached the same conclusion the agency reached.”). We review the trial

court's substantial evidence review de novo. See Tex. Dep't. of Pub. Safety v. Alford,

209 S.W.3d 101, 103 (Tex. 2006) (per curiam) (noting that an ALJ's findings are entitled

to deference but that “whether there is substantial evidence to support an administrative

decision is a question of law,” and as such, neither a trial court nor an ALJ's determination

of this issue is entitled to deference on appeal); see also Tex. Dep’t of Pub. Safety v.

Gaspar, No. 13-12-00210-CV, 2013 WL 123701, at *2 (Tex. App.—Corpus Christi Jan.

10, 2013, no pet.) (mem. op.).

       Yet, as with the trial court, we may not substitute our judgment for the ALJ's

judgment. Mireles, 9 S.W.3d at 131; see TEX. GOV'T CODE ANN. § 2001.174. We do not

determine whether the ALJ's decision was correct, but rather whether the record


       3   Section 2001.174 of the Texas Government Code provides the following, in relevant part:

       If the law authorizes review of a decision in a contested case under the substantial
       evidence rule . . . , a court may not substitute its judgment for the judgment of the state
       agency on the weight of the evidence on questions committed to agency discretion but:

       (1)       may “affirm the agency decision in whole or in part” and

       (2)       [S]hall 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:

                 ....

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

TEX. GOV'T CODE ANN. § 2001.174 (West, Westlaw through 2013 3d C.S.).
                                                     5
“demonstrates some reasonable basis” for the ALJ's determination. Mireles, 9 S.W.3d

at 131. In contested cases, if there is more than a scintilla of evidence to support the

administrative findings, we must affirm those findings; “[i]n fact, an administrative decision

may be sustained even if the evidence preponderates against it.” Id. We may reverse

an ALJ's decision if an appellant's substantial rights have been prejudiced because the

ALJ's findings, inferences, conclusions, or decisions are “not reasonably supported by

substantial evidence considering the reliable and probative evidence in the record as a

whole.”    TEX. GOV'T CODE ANN. § 2001.174(2)(E).               “The findings, inferences,

conclusions, and decisions of an administrative agency are presumed to be supported by

substantial evidence, and the burden is on the contestant to prove otherwise.” City of El

Paso v. Pub. Util. Comm'n of Tex., 883 S.W.2d 179, 185 (Tex. 1994).

                                  III.   APPLICABLE LAW

A.     Statutory Warnings

       Relevant to this case, before requesting a specimen, the officer shall inform the

person orally and in writing that “if the person refuses to submit to the taking of the

specimen, the person's license to operate a motor vehicle will be automatically

suspended, whether or not the person is subsequently prosecuted as a result of the

arrest, for not less than 180 days.”      TEX. TRANSP. CODE ANN. § 724.015(2); see id.

§ 724.035(a)(1) (providing that the Department shall suspend the person's license to

operate a motor vehicle on a public highway for 180 days if the person refuses to submit

to the taking of a specimen).




                                              6
B.    Refusal to Provide Specimen

      If requested, “a specimen may not be taken if a person refuses to submit to the

taking of a specimen designated by a peace officer.” Id. § 724.013.

C.    Documented Refusal

      If a person refuses the request of a peace officer to submit to the taking of
      a specimen, the peace officer shall request the person to sign a statement
      that:

      (1)    the officer requested that the person submit to the taking of a
             specimen;

      (2)    the person was informed of the consequences of not submitting to
             the taking of a specimen; and

      (3)    the person refused to submit to the taking of a specimen.


Id. § 724.031. In addition, when a person refuses to submit to the taking of a breath

specimen, the officer shall, among other things, make a written report of the refusal. Id.

§ 724.032(a)(4).   The report must contain, in relevant part, a copy of the refusal

statement requested under section 724.031 or a statement signed by the officer that the

person refused to submit to the taking of the requested specimen and refused to sign the

requested statement under section 724.031. Id. § 724.032(b)(2).

D.    Administrative Hearing

      If a person’s license is suspended under this chapter, that person may request a

hearing on the suspension. Id. § 724.041. At the hearing, the relevant issues are

whether:

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

                                            7
      (2)   probable cause existed to believe that the person was:

            (A)     operating a motor vehicle in a public place while intoxicated;

            ....

      (3)   the person was placed under arrest by the officer and was requested
            to submit to the taking of a specimen; and

      (4)   the person refused to submit to the taking of a specimen on request
            of the officer.

Id. § 724.042.

                                   IV.    DISCUSSION

      By its sole issue, the Department contends that the county court at law erred by

reversing the ALJ's decision because substantial evidence supported the ALJ’s findings

of reasonable suspicion for the stop, probable cause for the arrest, and Narvaez’s refusal

to provide a breath specimen after being warned of the consequences. See id.; see also

id. §§ 724.031–.032. We agree.

A.    Reasonable Suspicion to Stop Narvaez for Speeding

      Corporal Longoria testified at the administrative hearing that he stopped Narvaez

for speeding. See id. § 545.351(a), (c)(2) (West, Westlaw through 2013 3d C.S.); id. §

545.352(a) (West, Westlaw through 2013 3d C.S.). According to Corporal Longoria’s

offense report, Narvaez’s vehicle appeared to be “driving faster than the 30 mph posted

speed limit.” This evidence is sufficient to establish reasonable suspicion for the stop.

See Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977) (op. on reh’g) (holding

that the officer had reasonable suspicion to believe the defendant was speeding based

on the officer’s testimony that the defendant “seemed to be traveling at an exceptionally

                                            8
high rate of speed, for that particular intersection”); McAfee v. State, 204 S.W.3d 868,

870 (Tex. App.—Corpus Christi 2006, pet. ref’d) (en banc) (holding that the officer’s visual

observation provided reasonable suspicion to believe the defendant was speeding

without pacing the defendant’s vehicle).

       In addition, Corporal Longoria testified that, after he observed the vehicle

speeding, he clocked Narvaez with his radar. According to the radar reading, Narvaez

was going 45 miles an hour, which confirmed Corporal Longoria’s observation. See

Gutierrez v. State, 327 S.W.3d 257, 263 (Tex. App.—San Antonio 2010, no pet.) (“[T]he

radar reading merely confirmed Officer Lewis’s initial observation that Gutierrez appeared

to be traveling faster than the posted speed limit. This evidence is sufficient to support

a finding that Officer Lewis had reasonable suspicion that Gutierrez was speeding.”); Icke

v. State, 36 S.W.3d 913, 915–16 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (holding

that the officer had reasonable suspicion to believe the defendant was speeding based

on visual observation and radar, either independently of each other or considered in

conjunction).

       Corporal Longoria’s visual observation and the radar reading, whether considered

independently or in conjunction with each other, constituted sufficient evident to support

the ALJ’s finding that “reasonable suspicion to stop [Narvaez] existed.” Nonetheless, we

note that Narvaez testified that he “was probably under the speed limit.” He explained

that there was a curve in the road as he drove from the club—the Boom Boom Lounge—

and he did not “believe it’s enough distance for [him] to gain that much speed.” Corporal

Longoria similarly testified that there was a curve in the road about a quarter of a mile

                                             9
from the club. But Corporal Longoria testified that he had calibrated his radar and that

he did not clock Narvaez on radar until Narvaez “got off the curve and . . . straightened

out.”

        “[B]ecause trial courts can view a witness’s demeanor, they are given great latitude

in believing or disbelieving a witness’s testimony, particularly when the witness is

interested in the outcome.” In re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000). The ALJ is

the sole judge of the credibility of the witnesses and is free to accept the testimony of any

witness or even accept “part of the testimony of one witness and disregard the remainder.”

Ford Motor Co. v. Motor Vehicle Bd. of Tex. Dep't. of Transp., 21 S.W.3d 744, 757 (Tex.

App.—Austin 2000, pet. denied).

        In this case, the ALJ had the opportunity to observe the testimony and demeanor

of both Corporal Longoria and Narvaez and was in a better position to judge the credibility

of each witness.     The ALJ believed Corporal Longoria’s testimony over Narvaez’s

testimony and wrote in her administrative decision, “The officer observed the Defendant

drive over the posted speed limit (45 mph in a 30 mph zone).” If the county court at law

reweighed the evidence and reversed the administrative decision on the ground that there

was not reasonable suspicion for the stop, it erred in doing so. See Tex. Dep’t of Pub.

Safety v. Scanio, 159 S.W.3d 712, 715 (Tex. App.—Corpus Christi 2004, pet. denied)

(“Under a substantial-evidence review, the reviewing court cannot substitute its judgment

for that of the ALJ and must affirm the ALJ’s decision if it is supported by more than a

scintilla of evidence.”).   We conclude that substantial evidence supported the ALJ’s

reasonable-suspicion determination. See Mireles, 9 S.W.3d at 131.

                                             10
B.      Probable Cause to Believe Narvaez Was Driving While Intoxicated

        Corporal Longoria testified that after stopping Narvaez for speeding, he noticed

Narvaez had red, glassy eyes and that there was an odor of an alcoholic beverage coming

from within the vehicle. See Tex. Dep’t of Pub. Safety v. Gilfeather, 293 S.W.3d 875,

880 (Tex. App.—Fort Worth 2009, no pet.) (op. on reh’g) (en banc) (“Speeding can

indicate impaired mental judgment and, therefore, is a factor to be considered as part of

the totality of the circumstances.”); Kirsch v. State, 276 S.W.3d 579, 584 (Tex. App.—

Houston [1st Dist.] 2008), aff’d, 306 S.W.3d 738 (Tex. Crim. App. 2010) (“Appellant’s

excessive speed, nearing 70 m.p.h. on the feeder road, also indicates impaired

judgment.”).       According to Corporal Longoria’s offense report, Narvaez informed

Corporal Longoria that he had come from the Boom Boom Lounge and had consumed

three beers. At the hearing, Corporal Longoria testified that Narvaez said he had two to

three beers.4

        Corporal Longoria testified that he administered field sobriety tests to Narvaez.

According to his report, on the horizontal gaze nystagmus (HGN) test, Narvaez displayed

six of six possible indicators of intoxication. See Emerson v. State, 880 S.W.2d 759,

764–67 (Tex. Crim. App. 1994) (en banc) (discussing the HGN test); Lewis v. State, 933

S.W.2d 172, 181 (Tex. App.—Corpus Christi 1996, pet. ref’d) (holding the officer’s HGN

testimony was “the most accurate indicator of the appellant’s intoxication available, since

appellant did not take an intoxilizer [sic] breath test”). Corporal Longoria reported that


        4 Later at the hearing, Narvaez testified that because he was nervous that night, he did tell Corporal

Longoria that he had three shots of alcohol in addition to the beer. According to his testimony at the
hearing, Narvaez explained that he only bought the shots; two women at the table took them when he put
them down.
                                                     11
while conducting the HGN test, he noticed a strong odor of an alcoholic beverage coming

from Narvaez’s breath and body. See Cotton v. State, 686 S.W.2d 140, 143 (Tex. Crim.

App. 1985) (en banc) (listing the odor of alcohol coming from the body and breath as

evidence of intoxication).

       Corporal Longoria administered the walk-and-turn and one-leg-stand tests to

Narvaez. On the walk-and-turn test, Narvaez exhibited five of eight possible indicators

of intoxication, and on the one-leg-stand, he exhibited three of four possible indicators of

intoxication. At the administrative hearing, Corporal Longoria testified that the results of

the field sobriety tests supported Narvaez’s arrest. See Kirsch v. State, 306 S.W.3d 738,

745 (Tex. Crim. App. 2010) (listing “inability to perform field sobriety tests” among

“evidence that would logically raise an inference that the defendant was intoxicated”);

Hartman v. State, 198 S.W.3d 829, 839 (Tex. App.—Corpus Christi 2006, pet. struck)

(“Satisfactory performance of the [field sobriety] tests suggests sobriety, while poor

performance can serve as a useful indicator of impairment.”).

       According to Corporal Longoria, he then asked Narvaez to provide a specimen on

a portable breath test (PBT). See Fernandez v. State, 915 S.W.2d 572, 576 (Tex. App.—

San Antonio 1996, no pet.) (holding a PBT admissible “as another indicator of intoxication

relied on by the officer, much like the other field sobriety tests.”); see also Tex. Dep’t of

Pub. Safety v. Garza, No. 13-10-00330-CV, 2010 WL 4901406, at *6 (Tex. App.—Corpus

Christi Dec. 2, 2010, no pet.) (mem. op.) (including PBT results as a factor in the “totality

of the circumstances” evaluation of probable cause). Narvaez refused to provide a

sample. See Bartlett v. State, 270 S.W.3d 147, 153 (Tex. Crim. App. 2008) (holding that

                                             12
appellant’s refusal to submit to a breath test is relevant because it shows a consciousness

of guilt). Finally, Corporal Longoria reported that, “[b]ased on Narvaez’[s] driving, his

poor   performance      on   the   [Standard    Field   Sobriety    Tests],    his   smell   and

appearance[,] . . . Narvaez did not have the normal use of his mental and physical

faculties, due to the introduction of alcohol into the body while operating a motor vehicle

on a public roadway.”

       Based on the totality of the circumstances, we conclude that there is substantial

evidence to support the ALJ’s finding that there was probable cause to believe Narvaez

was driving while intoxicated. See Mireles, 9 S.W.3d at 131. The county court at law

erred in determining otherwise.

C.     Warnings Given About Right to Refuse a Breath Test and the Consequences
       of Refusing a Breath Test

       Corporal Longoria testified that he warned Narvaez twice of his right to refuse a

breath test and of the consequences of refusing a breath test. See TEX. TRANSP. CODE

ANN. §§ 724.013, 724.015. Corporal Longoria read the warning to Narvaez—a verbal

Form DIC-24 warning—in his patrol car.              See id. § 724.015.        Corporal Longoria

explained that he did not ask Narvaez to sign anything in the patrol car because Narvaez

was handcuffed at the time. Corporal Longoria testified that the warnings—the written

DIC-24 statutory warnings—were given to Narvaez at the jail. See id.

       Corporal Longoria certified in his report that he provided the warnings, specifically

“if [Narvaez] refuse[d] to give the specimen, . . . [his] license, permit or privilege to operate

a motor vehicle will be suspended or denied for not less than 180 days, whether or not

[he is] subsequently prosecuted for this offense,” to Narvaez.           See id. §§ 724.015,
                                               13
724.032.    He provided the warnings both orally and in writing.      See id. § 724.015.

Corporal Longoria also checked a box on the written DIC-24 statutory warning form

indicating that after he requested a breath specimen, Narvaez refused to allow the taking

of the specimen and refused to sign the form as requested by the officer. See id. §

724.032(b).

      Yet at the hearing, Narvaez testified that he did not recall being warned of the

consequences of refusing the breath test. He also testified that if he had been warned

that he would lose his license for refusing the breath test, he would have taken the test.

However, on cross-examination, Narvaez admitted it was possible that Corporal Longoria

read the warnings to him.

      As with the conflicting testimony about Narvaez’s speed, the ALJ once again

disbelieved Narvaez’s testimony and believed Corporal Longoria’s testimony. This is

evidenced by her finding that Corporal Longoria complied with the statute when Narvaez

was “properly asked to submit a specimen of breath.” See Ford Motor Co., 21 S.W.3d

at 757.

      Narvaez appealed the ALJ’s compliance finding that he was given the statutory

warnings.     He invited the county court at law to reweigh the evidence, arguing that

Corporal Longoria’s certification that Narvaez refused to sign the DIC-24 statutory

warning form was actually evidence that Narvaez never received the warnings. The

county court at law expressed concern about whether Narvaez was warned of the

consequences of refusing the breath test. And in order to reach the conclusion that it

did, the county court at law must have, in error, substituted its judgment for that of the

                                           14
ALJ with regard to the credibility of the witnesses and the weight of the evidence. See

id.; Tex. Dep’t of Pub. Safety v. Vasquez, 225 S.W.3d 47, 54–55 (Tex. App.—El Paso

2005, no pet.).

       Giving great latitude to the ALJ as sole judge of the credibility of the witnesses,

see In re Doe 4, 19 S.W.3d at 325; Ford Motor Co., 21 S.W.3d at 757, yet reviewing the

record de novo, see Alford, 209 S.W.3d at 103, we conclude that the record

“demonstrates some reasonable basis” for the ALJ's determination that Narvaez was

“properly asked to submit a specimen of breath.” See Mireles, 9 S.W.3d at 131. So we

conclude that substantial evidence supported this finding. See id.

D.     Narvaez’s Refusal to Provide a Specimen

       After receiving the statutory warnings orally in the patrol unit, Narvaez informed

Corporal Longoria that he would not take the breath test. At the jail, Narvaez reaffirmed

his earlier decision not to provide a breath specimen. Based on this evidence, the ALJ

made an affirmative finding on the fourth element of the Department’s case—that Narvaez

refused Corporal Longoria’s proper request for a breath specimen.

       At the administrative hearing and on appeal to the county court at law, Narvaez

did not contest the fact that he refused the test. Instead, he argued that his refusal was

invalid because he was not warned of the consequences. Substantial evidence supports

the ALJ’s affirmative finding on this issue, and the county court at law erred if it reversed

the administrative decision on the ground that Narvaez did not refuse to provide a

specimen.




                                             15
E.     No Other Basis for Reversing the Administrative Decision

       As concluded above, substantial evidence supported each of the administrative

findings required to sustain the suspension of Narvaez’s driver license.            See TEX.

TRANSP. CODE ANN. § 724.042. And as discussed below, if the county court at law

reversed the administrative decision for any other reason, it erred in doing so.

       The only objection raised by Narvaez at the administrative hearing was a hearsay

objection to Corporal Longoria’s report.       However, as this Court set out in Texas

Department of Public Safety v. Struve, a peace officer’s report is admissible as an

exception to hearsay in an ALR hearing. 79 S.W.3d 796, 803–04 (Tex. App.—Corpus

Christi 2002, pet. denied); see TEX. R. EVID. 803(8)(C) (providing that “records, reports,

statements, or data compilations, in any form, of public offices or agencies setting

forth . . . in civil cases as to any party and in criminal cases as against the state, factual

findings resulting from an investigation made pursuant to authority granted by law” are

not excluded by the hearsay rule); Tex. Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558,

563–65 (Tex. 2012) (holding that unsworn police reports are admissible in ALR hearings

under rule 803(8)); see also 1 TEX. ADMIN. CODE § 159.211(b), (c)(2) (2014) (State Office

of Admin. Hearings, Administrative License Suspension Hearings Procedures) (providing

“[p]ursuant to Texas Government Code § 2001.081, the rules of evidence as applied in a

non-jury civil case in a district court of this state shall apply in ALR proceedings” and “[a]n

officer's sworn report of relevant information shall be admissible as a public record”).

The ALJ properly overruled Narvaez’s hearsay objection and admitted the report. If the




                                              16
county court at law reversed the administrative decision based on Narvaez’s hearsay

objection at the administrative hearing, it erred in doing so.

       At Narvaez’s hearing before the county court at law, the judge also questioned the

impact of the dismissal of the criminal case against Narvaez.5 However, both Narvaez

and the Department correctly informed the county court at law that, by statute, the

dismissal of the criminal case had no effect on the administrative suspension of Narvaez’s

driver license. See TEX. TRANSP. CODE ANN. § 724.048(c); Tex. Dep’t of Pub. Safety v.

Norrell, 968 S.W.2d 16, 19–20 (Tex. App.—Corpus Christi 1998, no pet.). So the county

court at law erred if it reversed the administrative suspension based on the dismissal of

Narvaez’s criminal case. And having concluded that substantial evidence supported the

ALJ’s decision and that the record does not support any other basis, we cannot conclude

that the findings, inferences, and decisions were arbitrary and capricious, as Narvaez

asserted in his petition. See Hinkley v. Tex. State Bd. of Med. Exam'rs, 140 S.W.3d 737,

743 (Tex. App.—Austin 2004, pet. denied) (providing that an agency's decision is not

generally arbitrary or capricious if it is supported by substantial evidence).

F.     Summary

       Based on the above, we conclude that the county court at law erred when it

reversed Narvaez's driver's license suspension because the ALJ’s determination that

“[t]he Department is authorized to suspend or deny [Narvaez’s] driving privileges for [180




       5 It is undisputed that the criminal case against Narvaez was dismissed on a motion to suppress
because the officer did not appear at the hearing.
                                                 17
days]” is reasonably supported by substantial evidence. We sustain the Department’s

sole issue.

                                  V.     CONCLUSION

      We reverse the judgment of the county court at law and render judgment

reinstating the administrative law judge's decision authorizing the suspension of

Narvaez's driving license. See TEX. R. APP. P. 43.2(c).



                                                          NELDA V. RODRIGUEZ
                                                          Justice

Delivered and filed the 23rd
day of October, 2014.




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