                                     NO. 07-10-0271-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                         JUNE 3, 2011

                           ______________________________


               TEXAS DEPARTMENT OF PUBLIC SAFETY, APPELLANT

                                                V.

                              RUEBEN P. ALLEN, APPELLEE


                         _________________________________

              FROM THE COUNTY COURT AT LAW OF WISE COUNTY;

                NO. CV-4750; HONORABLE MELTON D. CUDE, JUDGE

                           _______________________________

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


                                 MEMORANDUM OPINION


      Following a hearing before the State Office of Administrative Hearings, the

driver's license of Appellee, Rueben P. Allen, was suspended for 180 days.1 Allen

appealed to the County Court at Law,2 which found that the decision of the

Administrative Law Judge (ALJ) was not supported by substantial evidence.    The
1
Tex. Transp. Code Ann. § 724.035(a)(1) (West 2011).
2
Tex. Transp. Code Ann. § 524.041(b) (West 2007).
administrative decision was reversed and the Texas Department of Public Safety

appealed that decision to this Court.3             Presenting a sole issue, the Department

questions whether the trial court erred when it reversed the ALJ's finding that the

arresting officer had probable cause to believe Allen was operating a motor vehicle in a

public place while intoxicated.4         We reverse the trial court's judgment and render

judgment affirming the administrative decision to suspend Allen's driver's license for 180

days.


                                        Background Facts


        The scant facts are derived from the record at the administrative hearing held on

February 17, 2010. According to the record, in the early evening on December 7, 2009,

Department of Public Safety Trooper Chris Markin was dispatched to the scene of an

accident occurring on FM 730 South, where it was reported that a pickup had rear-

ended another vehicle. Although the pickup left the scene of the accident, it left behind

a license plate near the point of impact. The license plate found at the scene was

matched to a Dodge pickup which was later found abandoned with front end damage.

Allen was identified as the owner of that pickup.


        Allen's wife gave a statement that he had called her to pick him up near the site

of the abandoned pickup. She convinced him to turn himself in, and she drove him to
3
 A court of appeals has jurisdiction over decisions from county courts at law involving driver's license
suspensions. See State Dep't of Pub. Safety v. Barlow, 48 S.W.3d 174, 175 (Tex. 2001). But see Tex.
Transp. Code Ann. § 524.041(b) (West 2007); Tex. Dep't of Pub. Safety v. Jenkins, 262 S.W.3d 811, 813
(Tex.App.--Eastland 2008, no pet.).
4
 Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by the
Texas Supreme Court pursuant to its docket equalization efforts. Tex. Gov=t Code Ann. ' 73.001 (West
2005). We are unaware of any conflict between precedent of the Second Court of Appeals and that of
this Court on any relevant issue. Tex. R. App. P. 41.3.


                                                   2
the Wise County Sheriff's Office. Officers at the sheriff's office personally observed

Allen and detected an odor of an alcoholic beverage on him. Allen denied having

consumed any alcoholic beverages that evening.


      Allen was arrested on a finding of probable cause to believe that he had been

driving while intoxicated. He was issued a written statutory warning requesting a blood

specimen, which he refused to sign. He was then taken to Wise County Regional

Hospital for a mandatory blood draw. His refusal to voluntarily give a blood specimen

triggered an automatic 180-day suspension of his driver's license. Tex. Transp. Code

Ann. § 724.035(a)(1) (West 2011). Upon notification of the suspension of his license,

Allen timely requested a hearing before the State Office of Administrative Hearings

under section 724.041 of the Code to contest that suspension.


      No witnesses testified at the hearing but the Department did introduce two

exhibits: (1) a four-page Peace Officer's Sworn Report completed by Trooper Markin;

and (2) an unsigned Statutory Warning in which a blood specimen was requested from

Allen. Following the hearing, the ALJ issued an affirmative finding suspending Allen's

driver's license. Allen's appeal to the County Court at Law resulted in a reversal of the

ALJ's decision and the Department now challenges that decision.


                                 Standard of Review


      Administrative license decisions are reviewed under the substantial evidence

standard. Tex. Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006). Under

that standard, the reviewing court cannot substitute its judgment for the judgment of the

ALJ. Mireles v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). If the ALJ's

                                           3
decision is supported by more than a scintilla of evidence, that decision must be upheld.

Tex. Dep't of Pub. Safety v. Gilfeather, 293 S.W.3d 875, 878 (Tex.App.--Fort Worth

2009, no pet.). However, a trial court may reverse an ALJ's determination under certain

circumstances.5


       A court of appeals reviews the trial court's substantial evidence decision de novo.

Id. The issue for the reviewing court is not whether the ALJ's decision was correct but

only whether the record demonstrates some reasonable basis for the ALJ's decision.

Id. The burden for overturning an agency ruling is formidable. Tex. Dep't of Pub. Safety

v. Pucek, 22 S.W.3d 63, 67 (Tex.App.--Corpus Christi 2000, no pet.).


                                               Analysis


       Allen's refusal to voluntarily submit a blood specimen implicated section 724.042

of the Texas Transportation Code. Under that section, the Department was required to

prove by a preponderance of the evidence that:


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

       (2) probable cause existed to believe that the person was:


5
 The administrative decision may not be reversed unless it prejudices the substantial rights of an
appellant 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 unlawful procedure;
       (D) affected by other error of law;
       (E) not reasonably supported by substantial evidence 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.

Tex. Gov't Code Ann. § 2001.174(2) (West 2008)

                                                    4
             (A) operating a motor vehicle in a public place while
             intoxicated; or

                                           ***

      (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.

See Tex. Transp. Code Ann. § 724.042 (West 2011). See also Texas Dep't of Pub.

Safety v. Torres, 54 S.W.3d 438, 441 (Tex.App.--Fort Worth 2001, no pet.).


      By its sole issue, the Department maintains the trial court erred in reversing the

ALJ's administrative decision. We agree. In support of its contention, the Department

argues that only probable cause to believe Allen was operating a motor vehicle in a

public place while intoxicated was necessary.      As a corollary to that argument the

Department further contends that it was not required to prove Allen was actually driving

while intoxicated.   See Partee v. Tex. Dep't of Pub. Safety, 249 S.W.3d 495, 499

(Tex.App.--Amarillo 2007, no pet.). By its Reply Brief, the Department explains that the

determination whether a driver did in fact operate a motor vehicle in a public place while

intoxicated is a criminal matter with a great burden of proof, while a license suspension

is a civil matter requiring only probable cause to believe the driver was driving while

intoxicated. See, e.g., Kuciemba v. State, 310 S.W.3d 460, 462 (Tex.Crim.App. 2010)

(noting that for evidence to be sufficient to support a conviction for driving while

intoxicated, there must be a temporal link between the intoxication and the driving but,

circumstantial evidence alone can support the conviction). But see Church v. State, 942

S.W.2d 139, 140 (Tex.App.--Houston [1st Dist.] 1997, pet. ref'd) (pointing out that it was



                                            5
beyond the authority of an ALJ to decide the ultimate issue of whether the appellant was

actually operating a motor vehicle while intoxicated).


        The issue before this Court is whether it was reasonable for the ALJ to conclude

that Trooper Markin had probable cause to believe that Allen was operating his motor

vehicle in a public place while intoxicated when it was involved in an accident on FM

730 South.       Probable cause exists when an officer has reasonably trustworthy

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

committed an offense.         Tex. Dep't of Pub. Safety v. Butler, 110 S.W.3d 673, 675

(Tex.App.--Houston [14th Dist.] 2003, no pet.).


        Witnesses at the scene reported to officers that they had observed a pickup rear-

end another vehicle and drive away. A license plate left at the scene was matched to a

pickup owned by Allen. That pickup was later found abandoned. The abandoned

pickup showed front end damage. According to Allen's wife, Allen called her to pick him

up near the site of the abandoned pickup. She convinced him to turn himself in and

drove him to the sheriff's office. While at the sheriff's office, Trooper Markin and others

observed Allen and detected an odor of an alcoholic beverage on his breath.6 These

facts sufficiently establish probable cause to believe that Allen was operating a motor

vehicle in a public place while intoxicated.


        Allen strongly urges us to uphold the County Court at Law's decision reversing

his license suspension by arguing the Department's failure to show a temporal link

6
 During the license suspension hearing, Allen objected to statements contained in Trooper Markin's sworn
report as being inadmissible hearsay. However, hearsay statements may be used to show probable
cause. See Wilkerson v. State, 726 S.W.2d 542, 545 (Tex.Crim.App. 1986).


                                                   6
between the accident and his interaction with law enforcement when an odor of alcohol

was first detected. See Butler, 110 S.W.3d at 674-76. He contends a "substantial and

significant period of time" passed between the time of the accident and his contact with

law enforcement.7 We disagree with Allen's position.


        All that the Department was required to prove at the license suspension hearing

was probable cause to believe Allen was driving while intoxicated. The Department was

not required to prove Allen was intoxicated while operating his pickup at the time of the

accident. Under the substantial evidence standard, we find there was more than a

scintilla of evidence to support a finding of probable cause. We sustain the

Department's sole issue.


                                             Conclusion


        The trial court's judgment is reversed and judgment is rendered upholding the

administrative decision to suspend Allen's driver's license for 180 days.



                                                         Patrick A. Pirtle
                                                             Justice




7
 The record reflects that Trooper Markin was dispatched to the accident scene at 5:45 p.m. Allen's arrival
at the sheriff's office occurred "a short time later."

                                                    7
