Opinion issued December 6, 2018




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-17-00639-CR
                           ———————————
                     CHARLES MALVEAUX, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 184th District Court
                           Harris County, Texas
                      Trial Court Case No. 1537925-R


                         MEMORANDUM OPINION

      Appellant, Charles Malveaux, petitioned for an occupational driver’s license

under Texas Transportation Code section 521.244(e) following his conviction for

Driving While Intoxicated (DWI) as a third offense under Texas Penal Code

section 49.04 and punishment under Penal Code section 49.09, resulting in the
suspension of his driver’s license.1 The trial court denied his petition.2 In his sole

issue on appeal, Malveaux argues that the trial court erred in denying his petition

for an occupational driver’s license.       Because Malveaux failed to prove his

compliance with Transportation Code section 521.244(e), we affirm.

                                    Background

      On March 31, 2017, Malveaux was convicted of DWI, third offense, a third-

degree felony, relating to an offense that occurred on March 5, 2017. The record

demonstrates that he had been previously convicted of DWI in 1993 and in July

2012 under Penal Code section 49.04. Malveaux conceded that the March 5, 2017

offense for which he was convicted was within five years of his 2012 DWI

conviction. Accordingly, he was necessarily convicted and punished under Penal


1
      See, e.g., TEX. PENAL CODE ANN. § 49.04 (West Supp. 2018) (governing DWI
      generally) (West 2011), § 49.09 (West Supp. 2018) (providing enhanced
      punishment if additional elements, such as two previous DWI convictions, are
      met).
2
      The Texas Transportation Code provides that “[a] person whose license has been
      suspended for a cause other than a physical or mental disability or impairment or a
      conviction of an offense under Sections 49.04–49.08, Penal Code, may apply for
      an occupational license. . . .” TEX. TRANSP. CODE ANN. § 521.242(a) (West
      2018). An occupational driver’s license may contain restrictions regarding the
      hours of the day and days of the week during which the person may operate a
      motor vehicle, the reasons for which the person may operate a motor vehicle, and
      the areas or routes of travel permitted, among others. Id. § 521.248(a) (West
      2018); see also id. § 521.246 (West 2018) (providing that if person’s driver’s
      license has been suspended after conviction of offense under Penal Code sections
      49.04–49.08, judge shall restrict person to operation of motor vehicle equipped
      with ignition interlock device).

                                           2
Code sections 49.04 and 49.09(b), which provides that conviction for DWI is a

third degree felony for a person who had been convicted previously of two other

DWI offenses. See TEX. PENAL CODE ANN. § 49.04 (West Supp. 2018) (setting out

elements for DWI offense), § 49.09 (West Supp. 2018) (setting out enhanced

offenses and penalties).

      On June 14, 2017, Malveaux petitioned the trial court to grant him an

occupational driver’s license pursuant to Texas Transportation Code 521.244(e).

His verified petition asserted that on May 31, 2017, his “driver’s license was

automatically suspended for eighteen months following a conviction in this Court

for an offense under Section 49 of the Texas Penal Code.” Malveaux further

asserted that he had not been issued more than one occupational driver’s license in

the preceding ten years.

      Malveaux further stated in his verified petition that he had “installed an

ignition interlock device on each vehicle owned or operated by [him].”            He

attached a copy of a receipt from “Smart Start, Inc.” for a 1988 Chevrolet

Silverado, listing an “install date” of February 2, 2017, a “service date” of June 6,

2017, and a “next lockout date” of July 2, 2017.         The receipt indicated that

Malveaux had paid a fee for “20/20 HU Service.” He alleged that the receipt

indicated that he had purchased and installed a deep-lung breath analysis

mechanism on his vehicle. Malveaux also alleged in his verified petition that he


                                         3
“has a valid policy of automobile liability insurance in accordance with the

provisions of Texas Transportation Code, Sections 601.701, et seq.” Malveaux

presented a photocopy of the “SR-22 Financial Responsibility Form” as proof of

automobile liability insurance.

      At the hearing on July 27, 2017, Malveaux waived his right to appear and

his attorney presented argument on his behalf, based on the verified petition and its

attachments—the service receipt and the SR-22 Financial Responsibility Form—

and a certified copy of the judgment of conviction for Malveaux’s 2017 DWI

offense. The 2017 judgment indicated that Malveaux had pleaded guilty to the

offense of “DWI Third,” which was listed as a third-degree felony. The judgment

further stated that his punishment was assessed at ten years’ confinement, probated

to four years of community supervision, and that the trial court also had suspended

Malveaux’s driver’s license for eighteen months beginning May 31, 2017. The

certified copy of the judgment also contained the terms of Malveaux’s community

supervision, including the requirement that he place a deep-lung breath analysis

mechanism with photographic capabilities on any vehicle available to him in order

to render it inoperable in the event ethyl alcohol was detected. He was further

required to participate in an outpatient treatment program, and a DWI Intervention

Program for repeat offenders.

      No other evidence was presented to the trial court.


                                          4
      Malveaux argued that, because he had installed the ignition interlock device,

Transportation Code section 521.244(e) permitted him to proceed without making

a showing of his essential need for the occupational license. The State argued,

however, that while “[t]he petition mentions that the defendant was convicted

under [Penal Code section] 49.04,” Malveaux “was also convicted under [section]

49.09 because priors are the elements of the offense.” The State argued that the

petition did not meet all elements necessary to obtain the occupational driver’s

license and that there was “insufficient proof” that all elements had been complied

with. It observed that one receipt for service of an interlock device did not

sufficiently establish that Malveaux had complied with the statutory requirements.

      The trial court denied Malveaux’s petition for an occupational driver’s

license in an order signed July 27, 2017. On the record, the trial court stated that

“in addition to the technical issues raised by the State,” the court believed that it

had discretion to determine whether to grant Malveaux an occupational driver’s

license. The trial court did not disagree with Malveaux’s contention that he was

not required to establish his essential need for the occupational license. The trial

court stated that the phrase “is entitled to” as used in Transportation Code section

521.244(e) created a right to proceed without proving his essential need; however,

the trial court did not believe that section 521.244(e) made granting of the

occupational driver’s license mandatory or otherwise deprived the court of its


                                         5
discretion in considering the petition as a whole. The trial court went on to express

concern with Malveaux’s having served only two months of his probation

following a DWI conviction that involved a “minor accident.” It also stated that the

ignition interlock mechanism only detected alcohol, but it would still allow the

vehicle to start if Malveaux were under the influence of drugs.

      This appeal followed.

                                     Analysis

      Generally, Texas courts have reviewed a trial court’s ruling on a petition for

an occupational driver’s license for an abuse of discretion. See Wood v. Tex. Dep’t

of Pub. Safety, 331 S.W.3d 78, 81 (Tex. App.—Fort Worth 2010, no pet.); Deleon

v. State, 284 S.W.3d 894, 896 (Tex. App.—Dallas 2009, no pet.); see also TEX.

TRANSP. CODE ANN. § 521.244(a), (c) (West 2018) (requiring trial court

considering petition for occupational driver’s license to make findings regarding

essential need and to “determine the actual need of the petitioner to operate a

motor vehicle”), § 521.248 (West 2018) (requiring that trial court’s order granting

occupational driver’s license must specify limitations imposed on petitioner’s

operation of motor vehicle), § 521.252(a) (West 2018) (providing that “[t]he court

that signs an order granting an occupational license may issue at any time an order

revoking the license for good cause”). A trial court abuses its discretion when it




                                         6
acts in an arbitrary and unreasonable manner or when it acts without reference to

any guiding rules or principles. Deleon, 284 S.W.3d at 896.

      Here, Malveaux relies on Transportation Code section 521.244(e), which

provides:

      (e) A person convicted of an offense under Sections 49.04–49.08,
      Penal Code, who is restricted to the operation of a motor vehicle
      equipped with an ignition interlock device is entitled to receive an
      occupational license without a finding that an essential need exists for
      that person, provided that the person shows:

             (1) evidence of financial responsibility under Chapter 601; and

             (2) proof the person has had an ignition interlock device
             installed on each motor vehicle owned or operated by the
             person.

TEX. TRANSP. CODE. ANN. § 521.244(e). Malveaux argues that he established

financial responsibility and provided proof he had installed an interlock device on

his vehicle, and, thus, the trial court lacked discretion to refuse to grant him an

occupational driver’s license.

      However, among its other arguments to the trial court, the State challenged

the adequacy of Malveaux’s proof that he had installed an adequate ignition

interlock device on “each motor vehicle owned or operated by” him, as required by

the statute. No evidence was presented to the trial court at the hearing. Rather,

Malveaux relied upon his verified pleading, in which he made conclusory

assertions that he had complied with the terms of section 521.244(e). He also


                                         7
attached to his petition a copy of a receipt from “Smart Start, Inc.” for a 1988

Chevrolet Silverado, listing an “install date” of February 2, 2017, a “service date”

of June 6, 2017, and a “next lockout date” of July 2, 2017. The receipt indicated

that Malveaux had paid a fee for “20/20 HU Service.”

      The State argued in the trial court that there were inconsistencies in the dates

on the receipt provided by Malveaux. The date of installation on the receipt

predates Malveaux’s underlying conviction, and it indicates that the next “lockout

date”—a term that was never explained or defined to the trial court—was July 2,

2017, but the hearing occurred after that date on July 27, 2017.

      The State also argued that the receipt did not prove that the Silverado

referenced in the receipt was Malveaux’s vehicle, nor did it prove that the

Silverado was the only vehicle to which Malveaux had regular access, and we

agree. See TEX. TRANSP. CODE. ANN. § 521.244(e)(2) (requiring proof that person

had interlock device installed on each motor vehicle owner and operated by

person).   Malveaux’s attorney argued at the hearing that Malveaux’s verified

petition asserted that he had installed the required device on each motor vehicle

that he owned or operated, but conclusory statements, even in verified petitions, do

not constitute evidence. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904

S.W.2d 656, 660 (Tex. 1995) (noting that, generally, pleadings are not competent

evidence, even if sworn and verified); Padilla v. Metro. Transit Auth. of Harris


                                          8
Cty., 497 S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2016, no pet.)

(holding, in summary judgment context, that affidavits containing conclusory

statements that fail to provide underlying facts supporting those conclusions are

not proper evidence).

      In stating its ruling on the record, the trial court recognized “the technical

issues raised by the State.” Because the trial court could have denied Malveaux’s

petition solely on the basis that he did not establish his compliance with section

521.244(e)(2), we overrule Malveaux’s sole issue on appeal.

                                    Conclusion

      We affirm the order of the trial court.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Justices Keyes, Bland, and Lloyd.

Do not publish. TEX. R. APP. P. 47.2(b).




                                           9
