                                   NO. 07-07-0364-CV

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL D

                                 AUGUST 25, 2009
                         ______________________________

                        PAUL DEAN HARRISON, APPELLANT

                                            V.

               TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLEE
                     _________________________________

        FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

            NO. 2006-599,777; HONORABLE PAULA LANEHART, JUDGE
                      _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Appellant Paul Dean Harrison appeals from the county court’s order sustaining the

two-year suspension of his driver’s license. Through two points of error, appellant

contends there was insufficient evidence to support his license suspension and the court

abused its discretion in rejecting appellant’s testimony in favor of uncorroborated hearsay

evidence. We affirm.
                                        Background


       A Lubbock police officer responded to the scene of a two-car collision and spoke

with several people still at the scene. Each of the witnesses in the first car identified

appellant as the driver of the second car, which had rear-ended their vehicle. The officer

later determined appellant owned the second car.


       The officer also spoke with appellant about the collision. Appellant denied he was

the driver of the second car, but the officer believed he was the driver and proceeded to

conduct field sobriety tests. At the conclusion of these tests, appellant was arrested for

DWI. Appellant refused to provide a breath specimen and as a result, his driver’s license

was suspended.


       Appellant requested an administrative hearing to contest the suspension of his

license. Four exhibits were admitted without objection at the hearing.1 Appellant testified

that he was not the driver of the car. Another individual testified that he was the driver but

left the scene because several witnesses were “trying to jump on us” and he was driving

with a suspended license.        At the conclusion of the administrative hearing, the

administrative law judge (“ALJ”) sustained the two-year suspension of appellant’s license.




        1
          The exhibits consisted of the peace officer’s sworn report, the statutory warning,
a certified copy of appellant’s driving record, and a copy of the accident report.

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       Appellant appealed the ALJ’s decision to the County Court at Law No. 3 of Lubbock

County. The county court at law sustained the ALJ’s decision. This appeal followed.


                                          Analysis


       Through two issues, appellant contends: (1) the county court at law improperly

affirmed the ALJ’s holding because there was not a scintilla of credible evidence showing

appellant was driving the car; and (2) the county court at law’s rejection of appellant’s

testimony in favor of uncorroborated hearsay evidence was an abuse of discretion.


Standard of Review


       Review of an ALJ’s suspension of driving privileges is made under a substantial

evidence standard. Mireles v. Tex. Dep’t. of Public Safety, 9 S.W.3d 128, 131 (Tex. 1999);

Tex. Health Facilities Com’n v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 452 (Tex.

1984). “Substantial evidence” means that, on the evidence as a whole, reasonable minds

could have reached the same conclusion as that of the administrative agency. Tex. Dep’t.

of Public Safety v. Bond, 955 S.W.2d 441, 445 (Tex.App.–Fort Worth 1997, no pet.).

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. Mireles, 9 S.W.3d at 131. The issue for the reviewing court is not whether the

ALJ made a correct decision, but rather whether there is some reasonable basis in the

record for the action taken by the ALJ. Id. An administrative decision may be sustained

even if the evidence preponderates against it. Mireles, 9 S.W.3d at 130. This Court will



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review the lower court’s judgment regarding the ALJ’s decision de novo. Tex. Dep’t. of

Public Safety v. Struve, 79 S.W.3d 796, 800 (Tex.App.–Corpus Christi 2002, pet. denied).


Application


       Section 724.042 of the Texas Transportation Code, the license suspension statute,

serves the remedial purpose of protecting public safety by quickly removing drunk drivers

from the road. Tex. Transp. Code Ann. § 724.042 (Vernon 2004); Mireles, 9 S.W.3d at 130.

As applicable here, section 724.042 provides that the issues to be considered at an

administrative hearing involving the suspension of a driver’s license 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 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. Tex. Transp. Code Ann. § 724.042. If the ALJ finds

in the affirmative on each issue, the license suspension is sustained. Id.; Tex. Dep’t. of

Public Safety v. Scanio, 159 S.W.3d 712, 716 (Tex.App.–Corpus Christi, 2004, pet. denied).


       By his argument on appeal, appellant miscasts the issue the ALJ was required to

decide. Contrary to appellant’s assertions, DPS was not required to prove that appellant

was actually driving while intoxicated. Stagg v. Tex. Dep’t. of Public Safety, 81 S.W.3d 441,

444 (Tex.App.–Austin 2002, no pet.); Church v. State, 942 S.W.2d 139, 139-40

(Tex.App.–Houston [1st Dist.] 1997, pet. ref’d). That determination is to be made during the

DWI prosecution. Id.; Tex. Penal Code Ann. § 49.04(a) (Vernon 2003). A fact finding by an


                                             4
ALJ regarding actual operation of a motor vehicle while intoxicated is beyond the ALJ’s

authority and any finding of fact on that issue would be of no import. Tex. Dep’t. of Public

Safety v. Hirschman, 169 S.W.3d 331, 337-38 (Tex.App.–Waco 2005, pet. denied).

Instead, at the administrative hearing, DPS was required to prove only that probable cause

existed to believe that appellant was operating a motor vehicle in a public place while

intoxicated.   Probable cause exists where the police have reasonably trustworthy

information sufficient to warrant a reasonable person to believe a particular person has

committed or is committing an offense.              Guzman v. State, 955 S.W.2d 85, 87

(Tex.Crim.App. 1997).


       At the hearing before the ALJ, DPS presented the arresting officer’s sworn report

which clearly stated that several witnesses told police appellant was the driver of the vehicle

that sustained front-end damage in the collision. Appellant was found to be the owner of

that vehicle. The report also included a document entitled “Statutory Warning,” a copy of

which had been provided to appellant on his arrest, warning:


       You are under arrest for an offense arising out of acts alleged to have been
       committed while you were operating a motor vehicle in a public place while
       intoxicated . . . You will be asked to give a specimen of your breath and/or blood . . . .
       If you refuse to give the specimen, that refusal may be admissible in a subsequent
       prosecution. Your license . . . will be suspended or denied for not less than 90 days,
       whether or not you are subsequently prosecuted for this offense.


       The statutory warning also noted that “Subject [appellant] refused to allow the taking

of a specimen as evidenced by his signature below.” Given this evidence, the record of the

ALJ hearing demonstrated a reasonable basis for the agency’s action. There was evidence

that: (1) reasonable suspicion or probable cause existed to arrest appellant as several

                                                5
witnesses indicated to the officer that appellant was the driver of the vehicle that caused the

two-car collision; (2) probable cause existed to believe that appellant was operating a motor

vehicle in a public place while intoxicated, given eyewitness accounts that appellant was the

driver of the vehicle, coupled with the odor of alcoholic beverages emitting from appellant’s

breath, his unsteadiness on his feet, and his failure to adequately perform the administered

field sobriety tests; (3) appellant was placed under arrest by the officer and was requested

to submit to the taking of a breath specimen; and (4) appellant refused to submit to the

breath test. We agree with the county court at law’s conclusion that there was a reasonable

basis in the record to support the administrative decision to suspend appellant’s driver’s

license. We overrule appellant’s first issue.


         Appellant’s second issue must be overruled for the same reason. Because the issue

was not whether appellant was actually driving but whether the officer had probable cause

for believing so, the ALJ did not abuse its discretion by accepting the officer’s version

reflected in his report over the testimony at the hearing. We overrule appellant’s second

issue.


          The judgment of the county court is affirmed.




                                                          James T. Campbell
                                                              Justice




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