                             NUMBER 13-10-562-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

TEXAS DEPARTMENT OF PUBLIC SAFETY,                                       Appellant,

                                         v.

MARIO ALBERTO CERDA,                                                      Appellee.


                 On appeal from County Court at Law No. 4
                        of Hidalgo County, Texas.


                           MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Vela
      This is an interlocutory appeal brought by appellant, the Texas Department of

Public Safety (―DPS‖), from an order granting a temporary injunction in favor of Mario

Alberto Cerda, the appellee. The injunction order requires the DPS to return Cerda’s

driver’s license to him.   Cerda’s license had previously been suspended when he
refused to take a breath test after being arrested for driving while intoxicated. The DPS

first urges that the trial court erred ―by implicitly overruling the Department’s plea to the

jurisdiction based on Cerda’s failure to exhaust his administrative remedies.‖ By its

second issue, the DPS complains that the trial court erred in finding Cerda had a probable

right to have his driver’s license restored based on Cerda’s claim that he was acquitted of

the driving while intoxicated charge.      We vacate the trial court’s order granting a

temporary injunction and dismiss the cause for lack of jurisdiction.

                                     I. BACKGROUND

       The underlying facts are not in dispute.      On December 4, 2009, Cerda was

arrested for driving while intoxicated. On that same date, he was given notice that his

driver’s license was being suspended for failure to take a breath test. See TEX. TRANSP.

CODE ANN. § 724.032 (Vernon Supp. 2010). Cerda did not appeal the suspension in

accordance with section 724.041 of the transportation code. See id. § 724.041 (Vernon

Supp. 2010). On June 28, 2010, the trial court granted Cerda’s motion to suppress and

then granted the State’s motion to dismiss based on insufficient evidence in the driving

while intoxicated case.

       Cerda then attempted to have his license returned, but DPS denied his request.

He then filed an ―original petition for writ of mandamus and request for injunctive relief,‖

claiming that, because he was ―acquitted‖ of the driving while intoxicated charge, he was

entitled to have the suspension lifted. See id. § 524.015(b) (Vernon Supp. 2010). DPS

responded by filing a plea to the jurisdiction, arguing that Cerda failed to exhaust

mandatory administrative remedies.


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       The trial court held a hearing, after which it granted Cerda the relief he requested,

stating in its order that Cerda had a probable right of recovery and would suffer

irreparable injury if his license was not returned to him. Implicitly, the trial court overruled

DPS’s plea to the jurisdiction.

                                   II. STANDARD OF REVIEW

       When reviewing a challenge to the trial court’s subject matter jurisdiction, appellate

courts review the trial court’s ruling de novo. Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 228 (Tex. 2004). Subject-matter jurisdiction is essential for a court to

have authority to decide a case; it is never presumed, cannot be waived, and can be

raised any time. See Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008); Tex. Ass’n of

Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993).

       This case is also an appeal from an order granting a temporary injunction. We

review the trial court’s order granting a temporary injunction under the abuse of discretion

standard. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978); Matagorda Hosp. Dist. v.

City of Palacios, 47 S.W.3d 96, 99 (Tex. App.–Corpus Christi 2001, no pet.).

                                         III. ANALYSIS

       When an individual’s driver’s license is suspended, the right to appeal is set forth in

chapter 724 of the transportation code. See TEX. TRANSP. CODE ANN. § 724.041 (Vernon

Supp. 2010). If an individual fails to exhaust administrative remedies, the trial court lacks

subject matter jurisdiction and it must dismiss the case. See id. § 724.044 (Vernon

1999) (stating that the department’s suspension is final and may not be appealed if the

person fails to request a hearing under section 724.041); see Thomas v. Long, 207


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S.W.3d 334, 340 (Tex. 2006); see also Kurtzemann v. Texas Dep’t of Pub. Safety, No.

01-08-00543-CV, 2009 WL 2396112 at *2 (Tex. App.–Houston [1st Dist.] Aug. 6, 2009

pet. denied).      There is no dispute here—Cerda did not exhaust his administrative

remedies under the transportation code. We hold, therefore, that the trial court was

without subject matter jurisdiction to hear the temporary injunction and, accordingly, we

sustain DPS’s first issue.

         Moreover, even if we were to reach the merits of this case, Cerda could not prevail.

He cannot show a probable right to recover because he was not acquitted of the criminal

charge.1 A license suspension may not be imposed on a person who is acquitted of a

criminal charge under enumerated sections of the Texas Alcoholic and Beverage Code.

See TEX. TRANSP. CODE ANN. § 524.015 (Vernon Supp. 2010). An acquittal is an official

fact finding that the accused is not guilty of the criminal offense with which he is charged.

Ex parte George, 913 S.W.2d 623, 627 (Tex. Crim. App. 1995). However, a pre-trial

order of dismissal is not regarded as an acquittal. Tex. Dep’t of Pub. Safety v. Nielsen,

102 S.W.3d 313, 316 (Tex. App.–Beaumont 2003, no pet.) (holding that the prosecutor’s

dismissal of criminal charges was not tantamount to an acquittal); Tex. Dep’t of Pub.

Safety v. Norrell, 968 S.W.2d 16, 19-20 (Tex. App.–Corpus Christi 1998, no pet.) (same).

         Here, the evidence was undisputed that the case against Cerda was a pre-trial

dismissal for lack of sufficient evidence; he was not acquitted. We sustain DPS’s second

issue.



1
 In order to prevail on a temporary injunction, the applicant must plead and prove: (1) a cause of action
against the defendant; (2) a probable right to the relief sought; and (3) a probable, imminent, and irreparable
injury in the interim. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
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                                    IV. CONCLUSION

      Because the trial court was without jurisdiction to act, we vacate the trial court’s

order granting the temporary injunction and dismiss the cause for want of jurisdiction.




                                                ROSE VELA
                                                Justice

Delivered and filed the
10th day of February, 2011.




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