      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-05-00180-CV



                         Texas Department of Public Safety, Appellant


                                                 v.


                                Gary Christopher Rice, Appellee




                FROM COUNTY COURT AT LAW NO. 1 OF HAYS COUNTY
           NO. 8677-C, HONORABLE LINDA A. RODRIGUEZ, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The Texas Department of Public Safety appeals from the trial court’s order reversing

the administrative law judge’s suspension of Gary Christopher Rice’s driver’s license. The

Department contends that the trial court erred by substituting its judgment for that of the ALJ

concerning the reasonable basis of the stop, by filing findings of fact and conclusions of law, and by

reversing the ALJ’s finding that the Department had proven the elements required for suspension.

We reverse the trial court’s order and reinstate the ALJ’s ruling.

               At the time of the incident that led to Rice’s license suspension, Department trooper

Freddy Duran—the only witness at the hearing before the ALJ—was parked at the intersection of
Hunter Road, a farm-to-market road, and McCarty Lane, a county road in Hays County. Hunter

Road was under construction intended to expand the road to four lanes. The usable portion of

Hunter changed from time to time during the construction process. At the intersection, barricades

blocked the part of the road under construction. Duran was parked on the blockaded portion of the

road. The usable part of Hunter was not striped, although the lanes were marked by small reflective

flags spaced at intervals of ten to fifteen feet. The usable part of the road had no shoulder on either

side. The stop sign was temporary and the turn fairly tight.

               Traffic was light at 12:40 a.m. when Duran saw Rice make a wide right turn from

McCarty Lane onto Hunter Road into the lane of oncoming traffic. Duran testified that Rice drove

on the wrong side of the road for about fifteen feet before moving suddenly into the correct lane.

Duran initiated a stop without observing any additional unusual driving. Rice, driving the only car

visible on the road at the time, pulled over into the construction zone. Duran testified that he stopped

Rice for the traffic infraction and not because he suspected DWI.

               Duran said that Rice exhibited some lack of motor skills and seemed nervous. When

Duran informed him of the reason for the stop, Rice slurred his words while saying “construction

zone.” Rice fumbled with his wallet for his driver’s license, and seemed uncertain where his

insurance card was. Duran testified to smelling a strong odor of alcohol or an alcoholic beverage

from inside the car. Duran said he asked Rice to get out of the car. Rice got out without using the

vehicle for support or stumbling. In response to a question of how much he had to drink, Rice

responded that he was headed home. Asked again, Rice said he had drunk two or three beers. Duran

said that Rice had glassy, watery, bloodshot eyes, and slurred speech. Duran also testified that a

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strong smell of alcohol emanated from Rice’s person detectable in the open air, although Duran

could not tell if the odor came from Rice’s breath or his body generally.

               Duran conducted field sobriety tests on Rice. The horizontal gaze nystagmus test

revealed some indicators of intoxication. Duran noted that Rice claimed he had a pre-existing eye

injury. During the walk-and-turn, Duran observed Rice’s lack of balance before and during the test,

detecting four clues of intoxication out of a possible eight. Duran said his report indicated that,

during the one-leg stand, Rice swayed while balancing, hopped, and put his foot down. Based on

these tests, Duran determined that Rice was not in full possession of his mental and physical faculties

due to alcohol intoxication.

               Duran informed Rice that he was under arrest for driving while intoxicated. Duran

requested a breath sample, but Rice declined to provide one. The Department suspended Rice’s

driver’s license. Rice requested a hearing before an ALJ on the suspension.

               The ALJ found that Duran had reasonable suspicion to stop Rice because Rice turned

into the lane for oncoming traffic. The ALJ found that probable cause to arrest Rice existed because

of the indicia of intoxication Duran observed after the stop. The ALJ also found that Duran properly

asked Rice to provide a specimen of blood or breath, but Rice refused. The ALJ concluded that the

Department proved the elements required to support a license suspension.

               Rice sought judicial review of the ALJ’s ruling. After hearing argument, the trial

court reversed the ALJ’s ruling and ordered the Department to rescind any suspension and obliterate

all references to any suspension. The trial court filed findings of fact and conclusions of law. The

court found that Rice’s driving did not create a traffic hazard or violate the transportation code

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because his driving was not dangerous or unsafe. The court further found that, during his right turn,

he remained as close as practicable to the right of the roadway as the circumstances permitted.

Finally, the court found that there was no reasonable suspicion or probable cause to justify a

detention based on DWI.

                The Department appeals, contending that the trial court erred in reversing the ALJ’s

order concluding that the Department proved the elements of its case. The Department argues that

the trial court improperly substituted its judgment for that of the ALJ concerning the reasonableness

of the stop and by filing findings of fact and conclusions of law.

                At the administrative hearing, the Department had the burden to prove each element

by a preponderance of the evidence. Texas Dep’t of Pub. Safety v. Monroe, 983 S.W.2d 52, 55 (Tex.

App.—Houston [14th Dist.] 1998, no pet.). A person arrested for DWI is deemed by law to have

consented to the taking of a breath or blood specimen to check for intoxication. See Tex. Transp.

Code Ann.§ 724.011 (West 1999). A specimen may be taken at the request of a peace officer who

has reasonable grounds to believe that the person was driving while intoxicated1 unless the person

refuses,2 in which case, the Department may suspend the person’s license.3 If the person requests

a hearing, the suspension is stayed until an administrative law judge from the State Office of

Administrative Hearings holds a hearing on the suspension. Id. § 724.041. The statute lists the

issues relevant at the hearing:


       1
           Tex. Transp. Code Ann.§ 724.012 (West Supp. 2005).
       2
           Tex. Transp. Code Ann.§ 724.013 (West 1999).
       3
           Tex. Transp. Code Ann. § 724.035 (West Supp. 2005).

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       The issues at a hearing under this subchapter are whether:

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

       (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.

                 Courts review administrative license decisions under the substantial evidence

standard. See Tex. Transp. Code Ann. § 524.041 (West 1999); Tex. Gov’t Code Ann. § 2001.174

(West 2000). A court applying the substantial evidence standard of review may not substitute its

judgment for that of the agency. Tex. Gov’t Code Ann. § 2001.174; Mireles v. Texas Dep’t of Pub.

Safety, 9 S.W.3d 128, 131 (Tex. 1999). The issue for the reviewing court is not whether the agency

decision was correct, but whether the record demonstrates some reasonable basis for the agency’s

action. Mireles, 9 S.W.3d at 131. Courts must affirm administrative findings in contested cases if

there is more than a scintilla of evidence to support them. Id.; Railroad Comm’n of Tex. v. Torch

Operating Co., 912 S.W.2d 790, 792-93 (Tex. 1995). An administrative decision may be upheld

even if the evidence preponderates against it. See Torch, 912 S.W.2d at 793. A reviewing court

applying the substantial evidence standard “shall reverse . . . if substantial rights of the appellant

have been prejudiced because the administrative findings, inferences, conclusions, or decisions are




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. . . 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).

                We review the trial court’s judgment under a substantial evidence review de novo

standard because whether an agency’s decision is supported by substantial evidence is a question of

law. Tex. Dep’t Public Safety v. Jackson, 76 3d 103, 106 (Tex. App.—Houston [14th Dist.] 2002,

no pet.).

                We first examine whether there was at least reasonable suspicion that Rice violated

the law. The trial court’s findings of fact and conclusions of law indicate that the court reversed the

ALJ because of the lack of reasonable suspicion to support the initial stop. The court of criminal

appeals has articulated the standard of review for finding reasonable suspicion:


        “Reasonable suspicion” exists if the officer has specific articulable facts that, when
        combined with rational inferences from those facts, would lead him to reasonably
        suspect that a particular person has engaged or is (or soon will be) engaging in
        criminal activity. This standard is an objective one: there need only be an objective
        basis for the stop; the subjective intent of the officer conducting the stop is irrelevant.
        The reasonable suspicion determination is made by considering the totality of the
        circumstances. In conducting this totality of the circumstances determination, we use
        a bifurcated standard of review: (1) giving almost total deference to a trial court’s
        determination of historical facts and application of law to fact questions that turn on
        credibility and demeanor, and (2) reviewing de novo application of law to fact
        questions that do not turn upon credibility and demeanor.


Garcia v. State, 43 S.W.3d 527, 530 (Tex. Crim. App. 2001) (footnotes omitted). When a traffic

violation is committed within an officer’s view, the officer may lawfully stop and detain the person

for the traffic violation. Walter v. State, 28 S.W.3d 538, 542 (Tex. Crim. App. 2000).




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                If reasonable suspicion for the stop existed in this case, it must concern an offense

other than DWI. Duran testified that he did not stop Rice for intoxication and the trial court found

that there was no basis before the stop for reasonable suspicion that Rice was intoxicated. There is

no challenge to that conclusion. To reverse the trial court’s judgment, the Department must show

the record contains substantial evidence of some other basis for the stop.

                The critical dispute is whether Rice’s wide right turn and “fifteen feet” of travel in

the wrong lane provided substantial evidence to support the ALJ’s determination that Rice’s turn

gave rise to at least a reasonable suspicion that he violated the law. Duran stated in the synopsis

section of his sworn report that he stopped Rice for failure to use a single marked lane. In the section

detailing the probable cause for the stop, Duran wrote that Rice entered the oncoming lane of traffic

when turning right and traveled about fifteen feet before pulling back into the correct lane. Three

traffic rules are implicated by this action. Tex. Transp. Code Ann. § 545.060 (West 1999) (failure

to maintain a single marked lane); id. § 545.051 (driving on the right side of the road); § 545.101

(staying as close as practicable to right side of road during right turn). Section 545.060 has been

interpreted to require a showing that drifting from the single lane created a safety hazard before a

violation occurs. Id. § 545.060; see Hernandez v. State, 983 S.W.2d 867, 871 (Tex. App.—Austin

1998, pet. ref’d). But that statute expressly contains language pertaining to safety, whereas the right-

turn statute does not. Compare Tex. Transp. Code Ann. § 545.060(a) with id. § 545.101. Section

545.101 provides: “To make a right turn at an intersection, an operator shall make both the approach

and the turn as closely as practicable to the right-hand curb or edge of the roadway.” Id. § 545.101

(emphasis added).

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               We conclude that the record contains substantial evidence to support the ALJ’s

finding of reasonable suspicion that Rice violated the right-turn statute. Duran testified that Rice did

not appear to be having difficulty making the turn, but simply turned into the wrong lane. Duran

opined that a driver would have to make a tight turn to remain in the lane, but did not testify as to

any condition that made it impracticable to avoid crossing the center lane in making this right turn.

He testified that each lane was wide enough to accommodate an eighteen-wheel truck—Rice was

driving a small pickup truck. Duran agreed that the temporary stop sign was close to the intersection,

but did not indicate that it or any other road conditions or markers made staying in the right lane

impracticable. There was no contrary evidence. In argument at the hearing, Rice asserted that the

incursion into the oncoming lane was brief and that conditions at the intersection made it

impracticable to stay close enough to the side of the road to avoid crossing into the oncoming lane

during the turn. We conclude that this record contains at least a scintilla of evidence that Rice

violated the requirement that drivers stay as close to the right side of the road as practicable when

turning right. Id. § 545.101.

               There is thus substantial evidence of the four elements required to support a license

suspension. See id. § 724.042. There was substantial evidence supporting reasonable suspicion of

a violation of a traffic offense to support the initial stop. There is no dispute on appeal that

substantial evidence supported the conclusion that Duran observed behaviors and conditions that

provided probable cause to arrest Rice for DWI. Similarly, there is no dispute that Duran properly

requested a breath sample and that Rice refused to provide a sample.




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              The trial court erred in concluding that the ALJ’s decision to suspend Rice’s license

was not supported by substantial evidence. We reverse the trial court’s order and render judgment

reinstating the ALJ’s order authorizing the Department’s suspension of Rice’s license.




                                            G. Alan Waldrop, Justice

Before Justices Patterson, Puryear and Waldrop

Reversed and Rendered

Filed: February 10, 2006




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