Opinion issued August 15, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00565-CV
                           ———————————
          TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
                                        V.
                   CLAUDIA RENEE TAUNTON, Appellee


                On Appeal from the County Court at Law No. 3
                          Galveston County, Texas
                      Trial Court Case No. CV-80718


                         MEMORANDUM OPINION

      Appellant, the Texas Department of Public Safety (“DPS”), challenges the

trial court’s judgment affirming an administrative order denying DPS’s petition to

suspend the driver’s license of appellee, Claudia Renee Taunton. In its sole issue,
DPS contends that the trial court erred in affirming the administrative order

denying its petition to suspend Taunton’s driver’s license.

      We affirm.

                                   Background

      On May 5, 2017, Taunton was arrested for driving while intoxicated. DPS

suspended Taunton’s driver’s license and served her with a Notice of Suspension.1

Taunton requested an administrative hearing to contest the suspension of her

driver’s license.2

      At the hearing, Texas Highway Patrol Trooper R. Woodard testified that

while driving behind Taunton on FM-517 in Galveston County, Texas on May 5,

2017, he saw her drive her car “over onto the shoulder several times.” Woodard

further testified that there was other traffic on the road at the time and, in his

opinion, Taunton’s driving her car onto the shoulder on multiple occasions created

an unsafe condition on the road. Woodard testified that he could not recall the

exact number of times that Taunton drove her car onto the improved shoulder

“without reviewing” his video recording of the event, but he recalled that “she

didn’t just touch the line; she actually drove onto the shoulder” with her car. He

further testified that she did not drive her car into oncoming traffic and there were

no other cars stopped on the shoulder at the time.

1
      See TEX. TRANSP. CODE ANN. §§ 542.012–.014.
2
      See id. § 524.031.
                                         2
      As a result of the manner of Taunton’s driving, Woodard initiated a traffic

stop. He noticed that Taunton’s eyes were red and glassy. She admitted to

“drinking one mixed alcohol drink in Galveston.” Woodard performed multiple

field-sobriety tests on Taunton, which she failed. She then consented to give two

voluntary breath specimens, which both provided results of blood alcohol content

above the legal limit.3

      After considering the evidence and argument of counsel, the administrative

law judge (“ALJ”) made findings of fact that Taunton was “stopped for driving

[her car] partially onto the improved shoulder of the roadway on several

occasions,” “there is insufficient evidence to establish that [Taunton’s] driving was

unsafe or posed a risk to other motorists,” there “was insufficient evidence to

establish reasonable suspicion to stop or contact” Taunton. As such, the ALJ

concluded that “the evidence presented . . . was insufficient to establish all the

issues/elements set out in Tex. Transp. Code Ann. § 524.035 or 724.042 by a

preponderance of the evidence.” DPS appealed the ALJ’s ruling.4

      After reviewing the administrative record and hearing the arguments of

counsel, the trial court found that there was “insufficient evidence was established

to prove that [Taunton’s] driving was unsafe or posed a risk to other motorists.”

Accordingly, the trial court rendered judgment affirming the administrative order.
3
      See TEX. PENAL CODE ANN. § 49.01(2)(B).
4
      See TEX. TRANSP. CODE ANN. § 524.041.
                                         3
                               Standard of Review

      Judicial review of administrative license-suspension decisions is governed

by a “substantial evidence standard.” Mireles v. Tex. Dep’t of Pub. Safety, 9

S.W.3d 128, 131 (Tex. 1999). When reviewing an administrative decision under

the substantial evidence rule, the reviewing court “may affirm the [administrative]

decision in whole or in part.” TEX. GOV’T CODE ANN. § 2001.174(1). However, it

must reverse or remand the case if the challenger’s “substantial rights . . . have

been prejudiced because the administrative findings, inferences, conclusions, or

decisions are (A) in violation of a constitutional or statutory provision, (B) in

excess of the agency’s statutory authority, (C) made through an unlawful

procedure, (D) affected by other error of law, (E) not reasonably supported by

substantial evidence when considering the reliable and probative evidence in the

record as a whole, or (F) arbitrary or capricious or characterized by abuse of

discretion or clearly unwarranted exercise of discretion. See id. § 2001.174(2); see

also Tex. Dep’t of Pub. Safety v. Guajardo, 970 S.W.2d 602, 604–05 (Tex. App.—

Houston [14th Dist.] 1998, no pet.).

       Whether substantial evidence supports an administrative order is a question

of law. Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006). The

dispositive issue for the reviewing court is not whether the administrative order

was correct, but “whether the record demonstrates some reasonable basis for the


                                         4
[administrative] action.” Mireles, 9 S.W.3d at 131. We must presume that the

agency’s decision is supported by substantial evidence. Tex. Dep’t of Pub. Safety

v. Walter, 979 S.W.2d 22, 27 (Tex. App.—Houston [14th Dist.] 1998, no pet.).

Furthermore, the reviewing court must affirm the administrative decision if more

than a scintilla of evidence supports it and may affirm “even if the evidence

preponderates against it.” Mireles, 9 S.W.3d at 131. We may not substitute our

judgment that of the ALJ with regard to the weight or credibility of the evidence.

TEX. GOV’T CODE ANN. § 2001.174; Mireles, 9 S.W.3d at 131.

                              Reasonable Suspicion

      In its sole issue, DPS argues that the trial court erred in affirming the

administrative order denying its petition to suspend Taunton’s driver’s license

because Trooper Woodard had a reasonable suspicion for initiating a traffic stop

after Taunton crossed onto the shoulder of the road on multiple occasions while

driving her car.

      DPS must suspend the driving privileges of anyone it determines had an

alcohol concentration level of .08 grams or greater while operating a motor vehicle

in a public place. See TEX. TRANSP. CODE ANN. § 524.012(b)(1); see also TEX.

PENAL CODE ANN. § 49.01(2)(B) (defining “intoxicated” as having a blood alcohol

concentration of 0.08 or more). To prevail at a license-suspension hearing, DPS is

required to prove by a preponderance of the evidence that (1) the operator of a


                                        5
motor vehicle had an alcohol concentration of a level of .08 or greater, while

operating a motor vehicle in a public place, and (2) there existed a “reasonable

suspicion to stop or probable cause to arrest” the operator. See TEX. TRANSP. CODE

ANN. §§ 524.035(a)(1)(A), 524.035(a)(2). It is undisputed that Taunton’s blood

alcohol concentration was above a level of .08, so the only issue before the ALJ

was whether there existed a “reasonable suspicion to stop or probable cause to

arrest” Taunton.

      A law enforcement officer may stop and briefly detain a person for

investigative purposes if the officer has a reasonable suspicion, supported by

articulable facts, “that the person detained actually is, has been, or soon will be

engaged in criminal activity.” See Tex. Dep’t of Pub. Safety v. Chang, 994 S.W.2d

875, 877 (Tex. App.—Austin 1999, no pet.).         The burden is on the State to

demonstrate the reasonableness of the stop. See id. (citing McVickers v. State, 874

S.W.2d 662, 664 (Tex. Crim. App. 1993)).        If a law enforcement officer has a

reasonable basis for suspecting a person has committed a traffic offense, the officer

may legally initiate a traffic stop.   McVickers, 874 S.W.2d at 664; Chang, 994

S.W.2d at 877. The State is not required to show that a traffic offense was actually

committed, but only that the officer reasonably believed that a violation was in

progress. Valencia v. State, 820 S.W.2d 397, 400 (Tex. App.—Houston [14th

Dist.] 1991, pet. ref’d).


                                         6
      Here, DPS argued that Trooper Woodard reasonably that believed a

violation of Texas Transportation Code section 545.058(a) was in progress because

Taunton crossed the line and drove her car onto the improved shoulder of the road

on multiple occasions.

      Texas Transportation Code section 545.058(a) provides:

      An operator [of a motor vehicle] may drive on an improved shoulder
      to the right of the main traveled portion of a roadway if that operation
      is necessary and may be done safely, but only if:

            (1) to stop, stand, or park;

            (2) to accelerate before entering the main traveled lane of
               traffic;

            (3) to decelerate before making a right turn;

            (4) to pass another vehicle that is slowing or stopped on the
               main traveled portion of the highway, disabled, or preparing
               to make a left turn;

            (5) to allow another vehicle traveling faster to pass;

            (6) as permitted or required by an official traffic control device;
               or

            (7) to avoid a collision.

TEX. TRANSP. CODE ANN. § 545.058(a). In interpreting this statute, this Court has

recognized that “[t]he word ‘necessary’ in the statute is not a free-standing

requirement.” Morales v. State, No. 01-16-00713-CR, 2017 WL 3184758, at *3

(Tex. App.—Houston [1st Dist.] July 27, 2017, no pet.) (mem. op., not designated


                                           7
for publication) (citing Lothrop v. State, 372 S.W.3d 187, 190 (Tex. Crim. App.

2012)). And section 545.058(a) “does not set up a shifting-burden, self-defense-

style framework.” Lothrop, 372 S.W.3d at 191. Instead, “it shows that the offense

of illegally driving on an improved shoulder can be proved in one of two ways:

either driving on the improved shoulder was not a necessary part of achieving one

of the seven approved purposes, or driving on the improved shoulder could not

have been done safely.” Id.

          Furthermore, “[m]erely driving on an improved shoulder is not prima facie

evidence of an offense.” Id. at 191. If a law enforcement officer “sees a driver

driving [her car] on an improved shoulder, and it appears that driving on the

improved shoulder was necessary to achieving one of the seven approved

purposes, and it is done safely, that officer does not have reasonable suspicion that

an offense occurred.” Morales, 2017 WL 3184758, at *3. As such, the act alone

of driving on an improved shoulder cannot serve as the basis of a traffic stop or

arrest.     Id.   Accordingly, in this case, to prevail before at the administrative

hearing, DPS was required to prove, by a preponderance of the evidence, either

that Taunton’s driving of her car on the improved shoulder was not done pursuant

to one of the seven approved purposes or driving on the improved shoulder could

not have been done safely. Id.; see also Chang, 994 S.W.2d at 877 (“The burden is

on the State to demonstrate the reasonableness of the stop.”).


                                           8
      Trooper Woodard did not testify that he believed Taunton’s driving of her

car onto the improved shoulder was not for any of the reasons enumerated in

section 545.058(a). Accordingly, the only way DPS could have prevailed on

establishing reasonable suspicion by a preponderance of the evidence was to

present evidence that Woodward believed that Taunton’s driving to be unsafe. See

Lothrop, 372 S.W.3d at 191; Morales, 2017 WL 3184758, at *3.              Woodard

testified, without elaboration, that he believed that Taunton’s driving was unsafe.

However, his testimony to this effect was a conclusory answer given in response to

a question on direct examination as Woodard did not provide any explanation or

basis for his conclusion that Taunton’s driving was unsafe. See Dallas Ry. &

Terminal Co. v. Gossett, 294 S.W.2d 377, 380 (Tex. 1956) (“It is well settled that

the naked and unsupported opinion or conclusion of a witness does not constitute

evidence of probative force and will not support a jury finding even when admitted

without objection.”); see also Coastal Transp. Co. v. Crown Cent. Petroleum

Corp., 136 S.W.3d 227, 232 (Tex. 2004) (explaining conclusory statements

without probative force). Accordingly, we hold that there is substantial evidence

to support the ALJ’s finding that DPS failed to meet its burden to establish

reasonable suspicion to stop of contact Taunton.5


5
      DPS argues that “there is no evidence in the record to support a finding that
      Taunton’s driving on the shoulder was necessary to accomplish any of the seven
      lawful reasons for doing so, much less why she had to drive onto the shoulder
                                         9
      We overrule DPS’s sole issue.

                                       Conclusion

      We affirm the judgment of the trial court.




                                                 Julie Countiss
                                                 Justice

Panel consists of Justices Lloyd, Landau, and Countiss.




      multiple times.” This appears to be an attempt to shift the burden onto Taunton,
      which, as we have explained, belongs to DPS. There was no testimony from
      Trooper Woodward that he believed that Taunton had no permissible basis for
      driving onto the improved shoulder. This is different than requiring proof of a
      violation. As we explained in Morales v. State, driving onto an improved shoulder
      is not “prima facie” evidence of an offense. No. 01-16-00713, 2017 WL 3184758,
      at *3 (Tex. App.—Houston [1st Dist.] July 2017, no pet.) (mem. op., not
      designated for publication). Because the “legislature explicitly made this behavior
      legal, it would violate legislative intent to allow that behavior to serve as the basis
      of a traffic stop or arrest.” Id. Absent testimony from Woodward that Taunton’s
      driving of her car was unnecessary or unsafe, there would be no reasonable
      suspicion for a traffic stop. Id. Woodward did not testify that “using the
      improved shoulder was unnecessary”—only that it was unsafe, which, as we have
      explained, was a conclusory statement and not probative evidence on this point.
      See id. (citing Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim. App. 2012)).
                                            10
