Opinion issued July 23, 2013




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                               NO. 01-12-00439-CV
                           ———————————
                     SHASHIKANT C. PATEL, Appellant
                                        V.
          TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee



            On Appeal from the County Civil Court at Law No. 2
                          Harris County, Texas
                      Trial Court Case No. 1006593



                                  OPINION

      In his suit for judicial review, 1 appellant, Shashikant Patel, challenges the

order of the county court at law affirming an administrative law judge’s (“ALJ”)

1
      See TEX. TRANSP. CODE ANN. § 524.031 (Vernon 2007).
order granting the petition of the Texas Department of Public Safety (“DPS”) to

suspend his driver’s license for ninety days. 2 In two issues, Patel contends that the

ALJ authorized suspension of his driving privileges without evidence of a valid

alcohol test record and failed to grant his request for a continuance.

      We affirm.

                                    Background

      Houston Police Department (“HPD”) Officer C. Guiran-Garzon stopped and

arrested Patel for suspicion of driving while intoxicated. DPS later filed a petition

to suspend Patel’s driver’s license, and Patel filed a request for a hearing to be held

before an ALJ. At the hearing, DPS offered into evidence Guiran-Garzon’s sworn

report in which he indicated that HPD Officer Tomeo saw Patel fail to signal while

changing lanes on three separate occasions.        When he stopped Patel, Tomeo

noticed that Patel exhibited “slurred speech” and “red eyes.” Patel also exhibited

six signs of intoxication during a horizontal gaze nystagmus test (“HGN” test).

DPS also offered into evidence a notice of suspension of Patel’s driver’s license,

indicating that Patel had “provided a Specimen of blood or breath and an analysis

of the Specimen showed an alcohol concentration of .08 or greater, following an

arrest for an offense involving the operation of a motor vehicle.”



2
      See id. § 542.022 (Vernon Supp. 2012); id. § 542.041 (Vernon 2007).
                                          2
      Finally, DPS offered into evidence a “Breath Test Technical Supervisor

Affidavit DIC-56.” In the affidavit, Lee Anne Spino, custodian of records for the

Texas Breath Alcohol Testing Program, testified that on September 22, 2011, a

breath test was administered to Patel by “J. Gomez.” Spino noted that “[a]nalytical

results of the aforesaid test disclosed alcohol concentrations of 0.167 and 0.173,

both of which were valid analytical results.” Patel objected to the admission of

Spino’s affidavit, arguing that because there was “no actual breath test slip

attached to the documentation,” a “breath test slip is a testimonial document,” and

“anything on that breath test slip would be just testimonial.” DPS asserted that,

although a breath test slip alone is not admissible evidence, a sworn affidavit with

testimony about its results is admissible evidence. The ALJ ruled that “even

though there’s no breath test slip,” the affidavit contained “all the information”

needed; thus, it admitted the affidavit into evidence “subject to [Patel’s] argument

as to weight and sufficiency.” Patel then asked for a continuance so that he could

“properly subpoena the officers involved or look at the documents and make a

determination on new strategy.” After DPS asserted that a continuance would be

improper and untimely, the ALJ denied Patel’s request.

      The ALJ then found that Officer Guiran-Garzon had reasonable suspicion to

stop Patel and probable cause that Patel was operating a motor vehicle in a public

place while intoxicated. The ALJ further found that Patel was “operating a motor

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vehicle in a public place with an alcohol concentration of 0.08 grams or greater of

alcohol per 100 milliliters of blood as determined by [his] submission to a

blood/breath test as requested.” The ALJ then concluded that Patel’s license was

subject to suspension, and it ordered that DPS be authorized to suspend Patel’s

driving privileges for ninety days.

      Patel filed an “Appeal Petition and Stay of Suspension” in the county court

at law, arguing that the ALJ had erred in considering Spino’s affidavit as evidence

of the breath test. After a hearing, the court found that the ALJ’s decision was

reasonably supported by substantial evidence, affirmed the ALJ’s decision, and

ordered that the suspension of Patel’s license continue. Patel then filed a new-trial

motion, arguing that DPS “did not establish that [his] breath test was valid, as

required by Statute,” and, after a hearing, the trial court denied his motion.

                            Sufficiency of the Evidence

      In his first issue, Patel argues that the county court at law erred in affirming

the ALJ’s decision because DPS presented no evidence of a valid breath alcohol

test record and, thus, the ALJ’s decision was not reasonably supported by

substantial evidence.

      A person whose driver’s license is suspended following an administrative

hearing is entitled to judicial review of the decision. See TEX. TRANSP. CODE ANN.

§ 524.041 (Vernon 2007). Judicial review is governed by the substantial evidence

                                           4
rule. See Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006)

(per curiam) (quoting Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131

(Tex. 1999)); Tex. Dep’t of Pub. Safety v. Guajardo, 970 S.W.2d 602, 604 (Tex.

App.—Houston [14th Dist.] 1998, no writ). When reviewing an administrative

decision under the substantial evidence rule, the reviewing court “may affirm the

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

(Vernon 2008). 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 (1) in violation of a constitutional or statutory

provision, (2) in excess of the agency’s statutory authority, (3) made through an

unlawful procedure, (4) affected by other error of law, (5) not reasonably

supported by substantial evidence when considering the reliable and probative

evidence in the record as a whole, or (6) arbitrary or capricious or characterized by

abuse of discretion or clearly unwarranted exercise of discretion. See id.; see also

Guajardo, 970 S.W.2d at 604–05.

      Whether substantial evidence supports an administrative order is a question

of law. Alford, 209 S.W.3d at 103. The dispositive issue for the reviewing court is

not whether the ALJ’s order was correct, but “whether the record demonstrates

some reasonable basis for the agency’s action.” Mireles, 9 S.W.3d at 131. We

must presume that the agency’s decision is supported by substantial evidence. Tex.

                                         5
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 ALJ’s

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 for the ALJ’s judgment “on the weight of the evidence on

questions committed to agency discretion.” TEX. GOV’T CODE ANN. § 2001.174

(Vernon 2008).

      DPS must suspend the driving privileges of anyone the department

determines had an alcohol concentration level of .08 grams or greater while

operating a motor vehicle in a public place. TEX. TRANSP. CODE ANN. §

524.012(b)(1) (Vernon     Supp.     2012); see    also TEX.      PENAL   CODE     ANN.

§ 49.01(2)(B) (Vernon    2011)      (defining    “intoxicated”    as   having    alcohol

concentration of 0.08 or more). In order to prevail at a license-suspension hearing,

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

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

vehicle in a public place, and (2) there existed “reasonable suspicion to stop or

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

ANN. § 524.035(a)(1)(A), (2) (Vernon Supp. 2012).

      Patel argues that DPS did not establish to the ALJ that his breath alcohol test

was valid under the Texas Administrative Code and, thus, there is no evidence that

                                            6
he was operating a motor vehicle with an alcohol concentration level of .08 or

greater. The Texas Administrative Code provides,

             (b)   For purposes of an ALR suspension or disqualification
                   based on a breath test failure, a valid breath alcohol test
                   record is required. To be considered valid, the breath test
                   record must meet the following criteria:

                   (1)    There must be no “invalid” message.

                   (2)    Results must be clearly printed.

                   (3)    All air blanks must be 0.000.

                   (4)    The test record must bear the signature of the
                          breath test operator.

37 TEX. ADMIN. CODE § 17.5(b) (2012) (Tex. Dep’t of Pub. Safety, Intake). The

Code further provides that “[n]o additional report, memo, record, or maintenance

record is required to validate the breath alcohol test.” Id. § 17.5(c). Patel asserts

that “the record is devoid of any evidence that a valid breath alcohol test record” as

provided by section 17.5(b) “actually existed.”

      Reading section 17.5(b) in context with the rest of the subchapter, we note

that the previous section, entitled “ALR Reports,” lists the documents that a peace

officer is required to submit to DPS after a motor vehicle operator has failed a

breath or blood alcohol test. Id. § 17.4(2) (2012) (Tex. Dep’t of Pub. Safety, ALR

Reports). Among the documents to be included in the report is “a copy of the

analysis of the specimen, such as a photocopy of the breath test result.” Id. §

                                          7
17.4(2)(E).   Although the section requires the peace officer to submit certain

documents to DPS, it is not “intended to imply that any specific documents are

necessary to be in evidence in a contested hearing for the department to meet its

burden.” Id. § 17.4(4).

      The next section, entitled, “Intake,” provides that DPS “may reject an ALR

report and decline to prosecute any ALR suspension.” Id. § 17.5(a). It then

requires a valid breath alcohol test record and lists the four criteria cited by Patel

for a valid breath alcohol test.    Id. § 17.5(b).    And a later section, entitled,

“Hearings,” provides that all administrative hearings are governed in accordance

with the Texas Transportation Code and Title 1, Chapter 159 of the Texas

Administrative Code. Id. §17.9 (2012) (Tex. Dep’t of Pub. Safety, Hearings).

      Thus, it is apparent that the four requirements listed in section 17.5(b) are for

DPS’s internal use when it is making an initial determination as to whether to

proceed with a license revocation. There is no indication that the legislature

intended the requirements of section 17.5(b) be met at the administrative hearing.

Cf. Tex. Dep’t of Pub. Safety v. Cortinas, 996 S.W.2d 885, 890 (Tex. App.—

Houston [14th Dist.] 1998, no pet.) (holding that DPS was not required to prove

officer’s compliance with administrative or statutory provisions directing him to

provide defendant copy of criminal complaint).




                                          8
      Rather, the Texas Transportation Code requires only that DPS establish at

the administrative hearing, by a preponderance of the evidence, that (1) the

operator had an alcohol concentration level of .08 or greater, while operating a

motor vehicle in a public place, and (2) there existed “reasonable suspicion to stop

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

§ 524.035(a)(1)(A), (a)(2).     And the Texas Transportation Code specifically

provides that:


      (a)    The reliability of an instrument used to take or analyze a
             specimen of a person’s breath to determine alcohol
             concentration and the validity of the results of the analysis may
             be attested to in a proceeding under this subchapter by affidavit
             from the certified breath test technical supervisor responsible
             for maintaining and directing the operation of breath test
             instruments in compliance with department rule.

      (b)    An affidavit submitted under Subsection (a) must contain
             statements on:

             (1)    the reliability of the instrument and the analytical results;
                    and

             (2)    compliance with state law in the administration of the
                    program.
TEX. TRANSP. CODE ANN. § 524.038 (Vernon 2007) (emphasis added).

      At the administrative hearing, the ALJ admitted into evidence Spino’s

affidavit, wherein she testified:

      I am the custodian of the records and the Certified Technical
      Supervisor for Area 003, Texas Breath Alcohol Testing Program. . . .

                                           9
      On or about 0255 CDT on 9/22/11 a breath test was administered to a
      subject by the name of SHASHIKANT C. PATEL . . . .

      The test was conducted by a certified breath test operator who is
      trained in the required methodology for breath testing, namely J.
      GOMEZ, Certificate No. 22229.

      The records show that the test was administered in compliance with
      the laws of the State of Texas and Regulations of the Breath Alcohol
      Testing Program. Further, the records show that the aforesaid
      instrument was reliable and in proper working condition at the time of
      the test. The test is, therefore, a valid test according to the aforesaid
      Regulations.

      Analytical results of the aforesaid test disclosed alcohol
      concentrations of 0.167 and 0.173, both of which were valid analytical
      results.

(Emphasis added). The affidavit contained Spino’s statements concerning the

reliability of the testing instrument and compliance with state law; thus, it was

admissible as evidence of the validity of the blood alcohol test. Id. And the ALJ

also admitted into evidence Officer Guiran-Garzon’s sworn report, in which he

noted that Patel had provided a breath alcohol specimen with results of blood

alcohol concentration at 0.16 and 0.17.

      Thus, DPS presented more than a scintilla of evidence that Patel operated a

motor vehicle with a blood alcohol concentration of over 0.08. See Mireles, 9

S.W.3d at 131. Accordingly, we hold that the county court at law did not err in

affirming the ALJ’s order authorizing suspension of Patel’s driver’s license on the




                                          10
ground that DPS presented no evidence that Patel’s blood alcohol concentration

was greater than .08.

      We overrule Patel’s first issue.

                              Denial of Continuance

      In his second issue, Patel argues that the county court at law erred in

affirming the ALJ’s decision because he was entitled to a continuance of the ALJ

hearing after receiving Spino’s affidavit only two days before the hearing. He

argues that his substantial rights were prejudiced as a result of the ALJ’s denial of

his motion because he could have subpoenaed the involved officers to question

them about his breath alcohol test.

      A defendant in a license-suspension hearing “shall be allowed to review,

inspect and obtain copies of any non-privileged documents or records in DPS’s

ALR file or in possession of DPS’s ALR Division.”            1 TEX. ADMIN. CODE

§ 159.151(1) (2013) (State Office of Admin. Hearings, Prehearing Discovery). “If

a document is received by the defendant fewer than ten calendar days prior to the

scheduled hearing, the judge shall grant a continuance on the request of a party.”

Id.

      Whether an administrative agency failed to follow its own regulation is a

question of law. BFI Waste Sys. of N. Am., Inc. v. Martinez Envtl. Grp., 93 S.W.3d

570, 575 (Tex. App.—Austin 2002, pet. denied).            Administrative rules are

                                         11
construed in the same manner as statutes. Rodriguez v. Serv. Lloyds Ins. Co., 997

S.W.2d 248, 254 (Tex. 1999). To determine whether an administrative rule is

mandatory or directory, the reviewing court’s primary objective is to determine

and give effect to the agency’s intent. Lewis v. Jacksonville Bldg. & Loan Ass’n,

540 S.W.2d 307, 310 (Tex. 1976). Although there is no bright-line test, provisions

which are primarily for the purpose of promoting proper, orderly, and prompt

conduct of business are not generally regarded as mandatory. See id. Also, if the

provision directs that a certain act be done at a certain time and does not provide

for consequences should the act not be performed, the provision is usually

directory. See id.

      Here, the administrative hearing was held on December 1, 2011. At the

hearing, Patel asserted that DPS did not provide him with Spino’s affidavit until

November 29, 2011, two days before the hearing, and he requested that the ALJ

grant him a continuance.     DPS argued that the request was “improper and

untimely” because Patel had already announced that he was ready to proceed and

had “made a decision not to subpoena anyone.”

      In Texas Department of Public Safety v. Pierce, the defendant argued that

the ALJ abused its discretion in denying his fourth request for a continuance when

DPS provided him a second copy of the offense report only two days before the

suspension hearing. 238 S.W.3d 832, 834 (Tex. App.—El Paso 2007, no pet.).

                                        12
Under a predecessor version to the current rule, the Texas Administrative Code

provided that an ALJ “shall” grant a request for continuance if a document was

received by the defendant fewer than seven calendar days prior to the scheduled

hearing. Id. at 835. The El Paso Court of Appeals concluded that the provision

was directory, rather than mandatory, because it was designed to facilitate prompt

and orderly hearings, it did not provide a sanction in cases of non-compliance, it

did not specify a consequences for a denial of a continuance, and it did not identify

a further procedure for the party whose request for a continuance is refused. Id. at

836.

       Furthermore, we note that the code later provides that the “granting of

continuances shall be in the sound discretion of the judge, provided however, that

the judge shall expedite the hearings whenever possible.”            1 TEX. ADMIN

CODE § 159.207(c) (2012) (State Office of Admin. Hearings, Continuances). “A

party requesting a continuance shall supply three dates on which the parties will be

available for rescheduling of the hearing.” Id. “Failure to include a certificate of

service, a certificate of conference, and three alternative dates may result in denial

of the continuance request. . . .” Id.

       Though Patel, citing section 159.191, which is listed under the heading

“Prehearing Discovery,” asserts that he was entitled to a continuance, he did not

request a continuance until after the hearing had already commenced. And he did

                                         13
not supply the ALJ with three alternative dates for a rescheduling of the hearing, as

required by section 159.207. Accordingly, we hold that the county court at law did

not err in affirming the ALJ’s order authorizing suspension of Patel’s driver’s

license on the ground that the ALJ abused its discretion in denying Patel’s motion

for continuance.

      We overrule Patel’s second issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                               Terry Jennings
                                               Justice

Panel consists of Justices Jennings, Brown, and Huddle.




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