
COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

)
TEXAS DEPARTMENT OF PUBLIC               ) 
SAFETY,                                                             )                      No. 08-04-00106-CV
)
                                    Appellant,                        )                              Appeal from
)
v.                                                                          )                  County Court at Law No. 3
)
STEVE GRANT WARD,                                    )                    of El Paso County, Texas
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                                    Appellee.                          )                        (TC# 2003-C00053)   

O P I N I O N

            The Texas Department of Public Safety appeals a judgment reversing the suspension of
Steve Ward’s driver’s license.  Following a hearing, the license was suspended by the State Office
of Administrative Hearings pursuant to Texas Transportation Code, Section 724.031 et seq. 
Tex.Transp.Code Ann.  §§ 724.031-724.048 (Vernon 1999).  Ward successfully appealed to
county court on the basis that the Department lacked authority to suspend his license because the
hearing was held more than forty days after he was served with the notice of suspension in violation
of statutory provisions.  We reverse and render.
FACTUAL SUMMARY
            Ward was arrested for driving while intoxicated on September 26, 2003 and refused to
provide a breath sample.  At the time of the offense, he was served with notice that his license would
be suspended.   See Tex.Transp.Code Ann. § 724.035.  By statute, a suspension takes effect on the
fortieth day after the person receives notice.  Tex.Transp.Code Ann. § 724.035(c)(Vernon Supp.
2004-05).  Ward properly requested a hearing.  See Tex.Transp.Code Ann. § 724.041(a).  Section
724.041(b) provides that the hearing shall take place before the effective date of the suspension. 
Tex.Transp.Code Ann. § 724.041(b).   Reading these passages together leads us to conclude that
the Legislature intended for the hearing to be conducted within forty days of Ward’s arrest, i.e. by
November 5.
            The Department acknowledges that the hearing was not held within this time frame; it was
conducted on November 19, 2003, fifty-four days after Ward’s arrest.  Following the hearing, the
hearing officer authorized the Department to suspend Ward’s license.  Ward then appealed to county
court, arguing that the action should have been dismissed since the Department failed to timely hold
the hearing.  The trial court agreed, finding that the  Department failed to show good cause as to why
the hearing was not held timely.  
GOOD CAUSE OR BAD FAITH?
            In Point of Error Two, the Department complains that the trial court required an affirmative
showing of good cause to justify the untimely hearing.  We review the Department’s contention de
novo.  Texas Dept. of Public Safety v. Dear, 999 S.W.2d 148, 150 (Tex.App.--Austin 1999, no pet.).
            The forty-day requirement is directory rather than mandatory, and failure to hold the hearing
within that time period does not deprive the Department of jurisdiction.  See Texas Dept. of Public
Safety v. Salas, 977 S.W.2d 845, 847 (Tex.App.--Austin 1998, no pet.), Texas Dept. of Public Safety
v. Guerra, 970 S.W.2d 645, 648-49 (Tex.App.--Austin 1998, pet. denied); Texas Dept. of Public
Safety v. Vela, 980 S.W.2d 672, 674 (Tex.App.--San Antonio 1998, no pet.); Balkum v. Texas Dept.
of Public Safety, 33 S.W.3d 263, 268 (Tex.App.--El Paso 2000), no pet.).  The Austin Court of
Appeals has examined what penalty may be visited upon the Department for failure to hold the
hearing within the requisite period.  Dear, 999 S.W.2d at 151-53.  In determining the effect of
non-compliance, the court considered that laws subjecting intoxicated motorists to suspension of
driving licenses are intended to remove dangerous drivers from roadways to protect both themselves
and other motorists. The purpose of the forty-day requirement is to promote the proper, orderly, and
prompt conduct of business.  Dear, 999 S.W.2d at 152. Given these purposes, the court determined
that violation of the forty-day provision did not invalidate the suspension absent a clear showing of
bad faith by the Department.  Id. at 152- 53.  Rather than requiring the Department to show good
cause, the court concluded that a driver seeking to invalidate a license suspension must establish bad
faith on the part of the Department.  Dear, 999 S.W.2d at 152-53.  Placing the burden on the
Department to establish good cause effectively requires it to demonstrate jurisdiction, which runs
counter to the well-established rule that violation of a directory provision does not deprive the
agency of jurisdiction to act.  See Dear, 999 S.W.2d at 151-52.  
            Ward concedes that the trial court below did not make a finding of bad faith on the part of
the Department but argues that he nevertheless demonstrated bad faith.  First, he complains that he
received less than twenty-four hours notice of the hearing since the notice was sent to the wrong
address.  He received notice only because of his persistent calls seeking a hearing date.  He next
argues that the Department did not comply with his discovery request until the morning of the
hearing.  Finally, he contends the Department made no effort to schedule the hearing within the
statutory time period even though it had ample opportunity to do so.
            When Ward complained about the lack of notice and requested documentation, the hearing
officer offered him a continuance in order to adequately prepare his case.  But Ward did not want
a continuance.  He then complained that the Department had ample opportunity to schedule the
hearing and failed to do so.  The Department responded that it did not have a copy of the October
docket to determine whether the hearing could have been scheduled.  It noted the limited number of
slots available and the fact there was only one administrative judge in El Paso.  In overruling Ward’s
request for dismissal, the administrative judge explained that hearings are conducted only once per
month in El Paso and are often juggled to accommodate her schedule.  
            We must conclude that Ward failed to establish bad faith on the part of the Department.  We 
sustain Point of Error Two.  As this issue is dispositive of the appeal, we need not address the
remaining points of error.  The judgment of the trial court is reversed and rendered. 


August 25, 2005                                                          
                                                                                    ANN CRAWFORD McCLURE, Justice

Before Barajas, C.J., McClure, and Chew, JJ.
