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                                             OPINION

                                         No. 04-07-00702-CV

                           TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                        Appellant

                                                   v.

                                     Nelson Aguirre GONZALES,
                                              Appellee

                        From the County Court at Law No. 2, Bexar County, Texas
                                        Trial Court No. 327218
                            Honorable Timothy F. Johnson, Judge Presiding

                  OPINION ON APPELLANT’S MOTION FOR REHEARING

Opinion by: Phylis J. Speedlin, Justice

Sitting:          Alma L. López, Chief Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: October 22, 2008

AFFIRMED

           The motion for rehearing filed by appellant, Texas Department of Public Safety, is denied.

This court’s opinion and judgment dated August 20, 2008, are withdrawn, and this opinion and

judgment are substituted.

           The Texas Department of Public Safety (DPS) appeals from the trial court’s judgment

reversing an administrative order that suspended Nelson Aguirre Gonzales’s driver’s license for

refusing to provide a breath specimen. On appeal, DPS contends that the trial court erred in
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reversing the administrative order because a clerical error in the administrative order did not require

reversal, and all other predicates for the license suspension were supported by substantial evidence.

Because we disagree that all predicates for the license suspension were supported by substantial

evidence, we affirm the judgment of the trial court.

                           FACTUAL AND PROCEDURAL BACKGROUND

       At approximately 4:00 a.m. on January 21, 2007, officer John Pagola of the San Antonio

Police Department observed Gonzales driving 45 miles per hour in a 65 miles per hour zone on U.S.

Highway 281. Pagola stopped Gonzales’s vehicle, and after observing signs of intoxication, asked

Gonzales to perform field sobriety tests. After determining that Gonzales failed the field sobriety

tests, Pagola arrested Gonzales and requested a breath specimen for alcohol concentration testing.

Gonzales refused, and DPS subsequently suspended his driver’s license.

       Gonzales requested an administrative hearing regarding the suspension. Shortly after the

hearing, the administrative law judge (ALJ) issued an order upholding the suspension of Gonzales’s

driver’s license. The ALJ’s order recited that the offense occurred on January 1, 2007, not January

21, 2007 as the evidence at the administrative hearing established. Gonzales then appealed the

ALJ’s decision to the county court at law, complaining that the order failed to state the correct date

on which reasonable suspicion to stop and probable cause to arrest existed, and that the evidence did

not support the ALJ’s finding that there was reasonable suspicion to stop Gonzales’s vehicle. The

county court signed a general order reversing the judgment of the ALJ and ordered DPS to rescind

the suspension of Gonzales’s license. On appeal to this court, DPS contends that 1) the ALJ’s

clerical error did not require reversal by the trial court because Gonzales’s substantial rights were

not affected, and 2) reasonable suspicion existed to conduct the traffic stop of Gonzales.



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                                        STANDARD OF REVIEW

        A reviewing court applies the substantial evidence standard when reviewing an

administrative license suspension. TEX . GOV ’T CODE ANN . § 2001.174 (Vernon 2000); Mireles v.

Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). This standard of review is deferential.

See City of Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 243 n.1 (Tex. App.—Fort Worth 2007,

pet. denied) (reviewing court should not overturn a decision of an administrative agency unless it is

“illegal, arbitrary or capricious; that is, that it is not reasonably supported by substantial evidence”).

The court may not substitute its judgment as to the weight of the evidence for that of the ALJ.

Mireles, 9 S.W.3d at 131. Under this standard, there is a presumption that substantial evidence

supports the administrative findings, inferences, conclusions and decisions, and the complaining

party has the burden of proving otherwise. City of El Paso v. Public Util. Comm’n, 883 S.W.2d 179,

185 (Tex. 1994). The issue for the reviewing court is not whether the ALJ’s decision was correct,

but rather whether there is some reasonable basis in the record for the administrative decision. Id.

If there is more than a scintilla of evidence supporting the ALJ’s findings, the reviewing court must

affirm the decision. Mireles, 9 S.W.3d at 131 (noting that an administrative decision may be

sustained even if the evidence preponderates against it). A court may reverse an administrative

decision only if it finds the appellant’s substantial rights have been impaired because the ALJ’s

findings are not supported by the record in its entirety.              See TEX . GOV ’T CODE ANN .

§ 2001.174(2)(E).

        We review the trial court’s substantial evidence review de novo. Tex. Dep’t of Pub. Safety

v. Valdez, 956 S.W.2d 767, 769 (Tex. App.—San Antonio 1997, no pet.). Substantial evidence

exists if reasonable minds could have reached the same conclusion. Tex. Dep’t of Pub. Safety v.



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Fecci, 989 S.W.2d 135, 139 (Tex. App.—San Antonio 1999, pet. denied). In determining whether

the ALJ’s decision was supported by substantial evidence, this court is governed by the following

principles: 1) the trial court will hear and consider evidence to determine whether reasonable support

for the ALJ’s order exists, but the ALJ remains the primary fact-finding body, and the question for

the trial court is strictly one of law; 2) the trial court may not substitute its judgment for that of the

ALJ on controverted issues of fact; 3) if the ALJ heard substantial evidence that would support either

an affirmative or negative finding, the trial court must allow the ALJ’s order to stand, even if the

court would have differed with the result; 4) the trial court may not set aside the ALJ’s ruling merely

because there was conflicting or disputed testimony; and 5) the trial court is concerned only with the

reasonableness of the ALJ’s order not its correctness. Id.

                                                       ANALYSIS

Clerical Error

         DPS first argues that the trial court erred when it implicitly ruled1 that the ALJ’s clerical error

necessitated the reversal of Gonzales’s license suspension. DPS alleged in its pleadings, and the

evidence presented at the administrative hearing showed, that the incident occurred on January 21,

2007. DPS maintains that the clerical error did not affect Gonzales’s substantial rights, and therefore

the correct action would have been to modify the ALJ’s decision. See TEX . GOV ’T CODE ANN .

§ 2001.174(2) (stating that administrative decisions shall only be reversed when the appellant’s


         1
           … DPS contends that the trial court’s docket sheet entry noting, “ALJ decision set aside – no evidence of
anything on Jan. 1, 07,” may be used to explain the trial court’s state of mind. See N-S-W Corp. v. Snell, 561 S.W .2d
798, 799 (Tex. 1977) (orig. proceeding) (noting that docket sheet entry may supply facts in certain situations so long as
the entry does not contradict a final order). This use, however, has been limited to correcting clerical errors in judgments
or orders or determining the meaning of ambiguous words used in a judgment or order. Energo Int’l Corp v. Modern
Indus. Heating, Inc., 722 S.W .2d 149, 151 n.2 (Tex. App.— Dallas 1986, no writ) (holding that a docket sheet entry
ordinarily forms no part of the record that may be considered because it is a memorandum made for the trial court and
clerk’s convenience). Here, we decline to consider the docket sheet entry because the trial court’s order was
unambiguous.

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substantial rights have been prejudiced); Blankenbeker v. Tex. Dep’t of Pub. Safety, 990 S.W.2d 813,

819 (Tex. App.—Austin 1999, pet. denied) (rendering judgment modifying administrative decision

to reflect correct offense date where undisputed proof of offense date existed). The parties agree and

the record undisputedly reflects that Gonzales’s actions and the resulting arrest occurred on January

21, 2007, not January 1, 2007. We agree with DPS that the clerical error did not impact Gonzales’s

substantial rights. See TEX . GOV ’T CODE ANN . § 2001.174(2); see also Goldstein v. Tex. Dep’t of

Pub. Safety, No. 04-06-00142-CV, 2006 WL 2871544, at *2 (Tex. App.—San Antonio Oct. 11,

2006, no pet.) (mem. op.) (holding clerical error in ALJ order was not material and did not impair

appellant’s substantial rights). Accordingly, the ALJ’s order was not invalid for this reason, but that

does not complete our analysis. See Tex. Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 82 (Tex.

App.—San Antonio 1997, no writ) (noting that under the substantial evidence rule, we determine

whether the ALJ’s findings are supported by substantial evidence or whether the order is invalid for

some other reason).

Reasonable Suspicion to Stop

       DPS next contends that the trial court erred in reversing the administrative order because all

other predicates required to suspend Gonzales’s driver’s license were supported by substantial

evidence. At a license suspension hearing, DPS bears the burden of proving: 1) reasonable suspicion

or probable cause existed to stop or arrest the person; 2) probable cause existed to believe that the

person was operating a motor vehicle in a public place while intoxicated; 3) the person was placed

under arrest by the officer and subsequently requested to submit to a breath or blood test; and 4) the

person refused to submit to the breath or blood specimen. TEX . TRANSP . CODE ANN . § 724.042

(Vernon Supp. 2008).       The parties agree that substantial evidence supports the last three



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requirements; therefore, we focus on whether substantial evidence supports the ALJ’s finding that

reasonable suspicion existed to stop Gonzales’s vehicle.

       An officer conducts a lawful stop when he has reasonable suspicion to believe that an

individual is violating the law. Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

Reasonable suspicion exists if the officer has specific, articulable facts that, when combined with

rational inferences from those facts, would lead him to reasonably conclude that a particular person

actually is, has been, or soon will be engaged in criminal activity. Id.; Garcia v. State, 43 S.W.3d

527, 530 (Tex. Crim. App. 2001). Under this standard, we look to whether an objective basis for

the stop existed while considering the totality of the circumstances. Ford, 158 S.W.3d at 492-93.

An officer may stop a driver if he has reasonable suspicion that a traffic violation was in progress

or had been committed. Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex. App.—Dallas

2001, no pet.).

       At the administrative hearing, the sole witness, Officer Pagola, testified that he stopped

Gonzales’s vehicle because Gonzales was traveling 45 miles per hour in a 65 miles per hour zone,

which Pagola “considered impeding traffic.” Pagola stated that on the Sunday morning in question,

it was “foggy and drizzly; it was wet asphalt.” Pagola acknowledged that such conditions were “not

the safest” and that a reasonable, prudent driver should adjust his speed accordingly when driving

under those conditions. Pagola could not recall the amount of traffic on the highway at the time he

stopped Gonzales, and therefore could not recall whether Gonzales was actually impeding traffic.

Pagola testified that there was no other basis for stopping Gonzales aside from the fact that he was

driving 45 miles per hour in a 65 miles per hour zone; however, the police report which was admitted

as evidence states that Pagola also observed Gonzales drifting within his lane of travel.



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         On appeal, DPS argues that Pagola had reasonable suspicion to stop Gonzales’s vehicle

because Gonzales violated an ordinance of the City of San Antonio by driving 20 miles per hour

below the posted speed limit. Section 19-133 of the municipal code provides that “[t]he minimum,

reasonable, safe and prudent speed limit for the interstate highways and expressways within the city

limits are hereby declared to be uniformly ten (10) miles per hour less than the maximum reasonable,

safe and prudent speed limit for said highways.” SAN ANTONIO , TEX ., CODE OF ORDINANCES 19-133

(2008). At the hearing, however, Pagola testified that he was not familiar with this ordinance2, and

repeatedly asserted that he stopped Gonzales’s vehicle for “impeding traffic.” The statute relevant

to the issue of impeding traffic is section 545.363(a) of the Texas Transportation Code, entitled

“Minimum Speed Regulations.” It states that “[a]n operator may not drive so slowly as to impede

the normal and reasonable movement of traffic, except when reduced speed is necessary for safe

operation or in compliance with law.” TEX . TRANSP . CODE ANN . § 545.363(a) (Vernon 1999).

Texas courts interpreting section 545.363(a) have held that slow driving, in and of itself, is not a

violation of the statute; a violation only occurs when the normal and reasonable movement of traffic

is impeded. See, e.g., Davy v. State, 67 S.W.3d 382, 392-93 (Tex. App.—Waco 2001, no pet.)

(holding no violation of minimum-speed regulations where there was little or no traffic to impede);

Richardson v. State, 39 S.W.3d 634, 639 (Tex. App.—Amarillo 2000, no pet.) (holding evidence

insufficient to support reasonable suspicion that defendant was impeding traffic where there was

little or no traffic on road for defendant to impede, and there was evidence defendant was only

traveling 10 miles per hour under speed limit, which officer stated would not have posed a safety


         2
           … DPS argues that although Pagola was not familiar with the city ordinance, a reasonable officer in the City
of San Antonio would have been, thus making the traffic stop objectively reasonable. Even assuming Pagola was aware
of the city ordinance, we disagree that Pagola articulated specific facts leading him to suspect that Gonzales violated the
city ordinance, as discussed infra.

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problem); U.S. v. Coronado, 480 F.Supp.2d 923, 928 (W.D. Tex. 2007) (holding government failed

to show reasonable suspicion that driver had impeded traffic where there was no evidence of how

long officer observed backup of cars behind vehicle, and no evidence that vehicle was impeding

normal and reasonable movement of traffic). Cases holding that a violation of Texas’s minimum-

speed limit law occurred have included testimony that traffic was backed up due to the defendant’s

slow driving or that the defendant’s vehicle was completely stopped in a lane of traffic. See, e.g.,

Green v. State, 773 S.W.2d 816, 819 (Tex. App.—San Antonio 1989, no pet.) (holding probable

cause existed to stop defendant for impeding traffic where vehicle was completely stopped in lane

of traffic); Moreno v. State, 124 S.W.3d 339, 347 (Tex. App.—Corpus Christi 2003, no pet.) (fact

that defendant was driving 25 miles per hour in 45 miles per hour zone provided officer with

probable cause to stop vehicle for impeding traffic where officer also observed traffic backed up

behind defendant’s vehicle due to slow driving and heavy amount of traffic).

       In applying the substantial evidence standard, we review the record before us for evidence

of whether Gonzales drove “so slowly as to impede the normal and reasonable movement of traffic,”

thus justifying the traffic stop. See TEX . TRANSP . CODE ANN . § 545.363(a). Here, there was no

evidence that the normal and reasonable movement of traffic was impeded by Gonzales’s driving.

In fact, Pagola testified that he could not recall the traffic conditions when Gonzales was stopped.

An officer’s conclusory statement that the law has been violated is not sufficient to prove reasonable

suspicion. See Ford, 158 S.W.3d at 493. Pagola was required to provide “specific, articulable facts”

from which a reviewing court could assess whether he reasonably concluded that Gonzales actually

was, had been, or soon would be engaged in criminal activity. Id. Without more, Pagola’s mere

conclusory statement that Gonzales was impeding traffic is insufficient to support a reasonable



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suspicion that Gonzales was committing a traffic violation. Nor can we conclude that the stop was

justified on the basis that Gonzales drifted within his own lane of travel. See State v. Tarvin, 972

S.W.2d 910, 912 (Tex. App.—Waco 1998, pet. ref’d) (holding that an investigatory stop for weaving

in one’s own lane of traffic is only justified when that weaving is erratic, unsafe, or tends to indicate

intoxication or other criminal activity). Here, although Pagola contended that the rate of speed at

which Gonzales’s vehicle was traveling was unreasonable, he gave no testimony that Gonzales’s

driving was unsafe. Furthermore, Pagola did not state that he suspected that Gonzales was

intoxicated at the time he initiated the stop. Cf. Walker v. State, No. 2-04-336-CR, 2006 WL

349704, at *5 (Tex. App.—Fort Worth Feb. 16, 2006, no pet.) (mem. op.) (not designated for

publication) (holding traffic stop based on weaving within own lane justified where officer

articulated his suspicion that driver might be intoxicated).

        Finally, we cannot conclude as a matter of law that the stop was justified on the basis that

Gonzales violated the city ordinance. The city ordinance is violated when a driver travels ten miles

per hour less than the “maximum reasonable, safe and prudent speed limit.” SAN ANTONIO ,

TEX ., CODE OF ORDINANCES 19-133 (emphasis added). Pagola stopped Gonzales for driving twenty

miles per hour below the posted speed limit. However, driving ten or more miles per hour less than

the posted speed limit does not constitute a per se violation of the city ordinance. The city ordinance

is not concerned with the posted speed limit, but rather with the “maximum reasonable, safe and

prudent speed limit.” Id. Here, there was no testimony as to what a reasonable speed would have

been under the weather conditions present at the time of the stop, which occurred at nearly 4:00 a.m.

on a foggy, drizzly Sunday morning. In fact, at the hearing, Pagola agreed that a reasonable, prudent

driver should adjust his speed below the posted speed limit when driving in fog and rain. See TEX .



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TRANSP . CODE ANN . § 545.351(b)(1) (Vernon1999) (“An operator may not drive a vehicle at a speed

greater than is reasonable and prudent under the conditions and having regard for actual and potential

hazards then existing”). Absent evidence of what a maximum reasonable, safe and prudent speed

would have been given the conditions at the time of the stop, we do not agree that the arresting

officer articulated specific facts on which he could conclude that Gonzales violated or was about to

violate the city ordinance. See Garcia, 43 S.W.3d at 530.

        Taking as true all issues of fact before the ALJ, we do not agree that reasonable minds could

conclude that the initial stop was justified. See Fecci, 989 S.W.2d at 139 (noting that substantial

evidence exists if reasonable minds could have reached the same conclusion). We note that the

result in this case only occurs because of the particular facts in the record before us, a record that is

devoid of any evidence to support the ALJ’s finding that Pagola had an objectively reasonable

suspicion that Gonzales was committing or about to commit a traffic violation to justify the stop.

Because the stop was improper, DPS did not meet its burden of proving all of the elements required

to suspend Gonzales’s license and Gonzales’s substantial right to retain his driver’s license was

prejudiced as a result of the ALJ’s findings. See TEX . TRANSP . CODE ANN . § 724.042; TEX . GOV ’T

CODE ANN . § 2001.174(2)(E). Accordingly, DPS’s second issue is overruled.



                                             CONCLUSION

        The judgment of the trial court is affirmed.

                                                         Phylis J. Speedlin, Justice




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