
Opinion issued June 19, 2008
 





In The
Court of Appeals
For The
First District of Texas



NO. 01-06-00874-CV



TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

V.

BYRON KAHRS VARME, Appellee



On Appeal from County Civil Court at Law No 2
Harris County, Texas
Trial Court Cause No. 864207



O P I N I O N
	We decide whether dismissal of criminal prosecution charges for driving while
intoxicated (DWI) requires civil reinstatement of driving privileges suspended under
the "Implied Consent" provisions of chapter 724 of the Transportation Code. (1) 
Appellant, the Department of Public Safety (DPS), challenges a lower-court order
vacating an order by an administrative law judge (ALJ).  After conducting a
contested-case hearing at Varme's request, the ALJ suspended the driver's-license
privileges of appellee, Byron Kahrs Varme, for 180 days, based on Varme's refusal
to submit a breath sample. (2)  Varme had been stopped in Houston traffic for speeding
and was arrested for DWI, but refused to submit a breath specimen.  See Tex.
Transp. Code Ann. §§ 724.011, .032, .035(a)(1) (Vernon 1999 & Supp. 2007).  In
two issues on appeal, DPS contends that the court below erred as a matter of law (3) in
reversing Varme's suspension, whether by crediting Varme's contention that
dismissal of related DWI charges by a criminal court barred the ALJ's order, or by
impermissibly substituting its judgment for the judgment of the ALJ.  We reverse and
render judgment reinstating suspension of Varme's license.  
Background--Administrative Review (4)

A.	Varme's Arrest and Suspension of License
	The sworn arrest report documents (the DIC-23, 24, and 25) of Houston Police
Officer R. Gonzalez recite that he observed Varme driving 20 miles over the posted
speed limit on Westheimer Road in Houston.  Gonzalez and his fellow officer
signaled Varme to stop, first using "lights and siren" and then "spotlight and PA," but
Varme continued driving until he pulled into his garage, where he was arrested.  The
arrest documents reflect that Officer Gonzalez arrested Varme for DWI because the
officer had probable cause to believe that Varme had been driving while intoxicated
due to the following:  (1) he admitted he had been drinking; (2) his eyes were
"bloodshot"; (3) he had a "strong" odor of alcohol on his breath; (4) his speech was
"slurred"; (5) his walking was "unsure"; and (6) his balance was "poor."  Varme
refused to submit to a breath test at the scene, which triggered suspension of his
driver's license for 180 days.  See Tex. Transp. Code Ann. §§ 724.031-.035(a)(1)
(Vernon 1999 & Supp. 2007).  
B.	Hearing before State Office of Administrative Hearings
	Varme sought administrative review of suspension of his driving privileges
before the State Office of Administrative Hearings, which resulted in a stay of
suspension of his license to drive pending the ALJ's ruling.  See Tex. Transp. Code
Ann. §§ 524.031, .032(d) (Vernon 2007).  At the contested-case hearing that resulted,
DPS had the burden to prove by a preponderance of the evidence that 
	(1)	a peace officer had reasonable suspicion or probable cause existed
to stop or arrest Varme;

	(2)	the officer had probable cause to believe that Varme was
operating a motor vehicle in a public place while intoxicated; 

	(3)	the officer placed Varme under arrest and asked him to submit to
the taking of a specimen; and 

	(4)	Varme refused to submit to the taking of a specimen on the
officer's request.

See Tex. Transp. Code. Ann. § 724.042 (Vernon 2007).  As outlined above, Officer
Gonzalez's sworn DIC-23, 24, and 25 tracked these requirements, including the
requirement of probable cause.  
	Varme then moved to dismiss the administrative proceeding, on the grounds
that (1) the County Criminal Court No. 4 of Harris County had dismissed the
underlying criminal cause on March 1, 2006, for lack of probable cause and (2) the
criminal court's determination was "res judicata" regarding the issue of probable
cause under section 724.042(2) in the administrative hearing.  The ALJ conducted the
hearing on April 27, 2001 at which both parties appeared through counsel.  On May
2, 2006, the ALJ rendered its written ruling in an order containing supporting
findings of fact and conclusions of law. (5)  This order stated that DPS had proved the
following facts by a preponderance of the evidence:
	1.	On 2/21/06, reasonable suspicion to stop [Varme] existed, in that
Officer Gonzalez observed [Varme] operate a motor vehicle at
Westheimer travel [sic] 55 mph in a 35 mph zone.

	2.	On the same date, probable cause to arrest [Varme] existed, in
that probable cause existed to believe that [Varme] was operating
a motor vehicle in a public place while intoxicated, because[,] in
addition to the facts in No. 1:  Officer Gonzalez observed
[Varme] to have an odor of alcohol and slurred speech.

	3.	[Varme] was placed under arrest and was properly asked to
submit a specimen of breath or blood.

	4.	After being requested to submit a specimen of breath or blood,
[Varme] refused.

Impliedly rejecting Varme's claim that dismissal of the underlying criminal case
barred suspension of his licence, the ALJ concluded that, "the [DPS] proved the
issues set out in Tex. Transp. Code Ann. § 724.042 and that [Varme's] license is
subject to a suspension/denial for 180 days pursuant to Tex. Transp. Code Ann. §
724.035."
C. Appeal to County Court at Law
	Varme challenged the ALJ's ruling in the court below.  See Tex. Transp.
Code Ann. § 724.047 (Vernon 1999) ("Chapter 524 governs an appeal from an
action of the department, following an administrative hearing under this chapter, in
suspending or denying the issuance of a license."); id. § 524.041(a)-(d) (Vernon
2007) (establishing right of appeal from and procedural rules for license-suspension
determination by ALJ to county courts at law and limiting right of appeal of DPS to
"issues of law"); cf. Tex. Dep't of Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728 (Tex.
1985) ("[Because] a driver's license is not a right, but a privilege[,]" the right to
appeal a license suspension "does not exist in the absence of statutory authority."). 
	In the court below, Varme argued once again that dismissal of the underlying
criminal case barred any determination of probable cause by the ALJ.  Varme also
contended, in the alternative, that the evidence in the administrative hearing was
legally and factually insufficient to support the ALJ's affirmative finding of probable
cause.  The lower court vacated the ALJ's order after conducting a hearing on
substantial evidence review, but the order does not state the basis of the ruling. 
Accordingly, DPS challenges both grounds presented by Varme to the court below. 
Cf. Tex. Dep't of Pub. Safety v. Wilmoth, 83 S.W.3d 929, 931 (Tex. App.--Amarillo
2002, no pet.) (holding that DPS waived issue on appeal by failing to challenge
alternate grounds presented to lower court reviewing ALJ order).
 Standard of Review

	Whether in the trial court or this Court, the substantial-evidence standard
governs review of administrative decisions in driver's license-suspension cases.  Tex.
Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (citing Mireles v.
Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999)); see Tex. Gov't Code
Ann. § 2001.174 (Vernon 2000); 1 Tex. Admin. Code § 159.37(a) (West 2008)
(State Office of Admin. Hearings, Appeal of Judge's Decision).  Whether substantial
evidence supports the ALJ's order is a question of law.  Alford, 209 S.W.3d at 103. 
A reviewing court conducting a substantial-evidence review may not substitute its
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.
	Pursuant to section 2001.174 (1)-(2), the reviewing court (1)  may "affirm the
agency decision in whole or in part" and 
	(2) [S]hall reverse or remand the case for further proceedings if
substantial rights of the appellant 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 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.  

	To warrant either reversal or remand, therefore, the reviewing court must
conclude that (1) substantial rights of the appealing party have been affected because
of (2) one or more of the reasons listed in section 2001.174(2)(A)-(F).  See id.  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.  A court conducting a substantial evidence review of a
contested case must presume that the agency decision is valid and that substantial
evidence supports it.  See Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706,
708 (Tex. 1998).  We must affirm the ALJ's decision if more than a scintilla of
evidence supports it, and we may affirm the ALJ's decision "even if the evidence
preponderates against it."  See Mireles, 9 S.W.3d at 131. (6) 
Discussion

A.	Criminal Dismissal Did Not Bar Suspension of Driver's License
	In its first issue, DPS contends that the court below erred as a matter of law if
it vacated the ALJ's suspension order based on Varme's contention that dismissal of
his underlying criminal case for "lack of probable cause" constituted a bar to
suspension of his driving-license privileges by the ALJ.  We agree that dismissal of
criminal DWI charges is not "tantamount to an acquittal" and thus does not preclude
suspension of driving-license privileges.  See Tex. Dep't of Pub. Safety v. Nielsen,
102 S.W.3d 313, 316 (Tex. App.--Beaumont 2003, no pet.). 
	The dispositive factor in this case, as in Nielsen, 102 S.W.3d at 316, is that the
State never prosecuted Varme in the related criminal case in a proceeding to which
jeopardy attached.  Here, too, see id., the related criminal case was merely dismissed;
there was never an acquittal. 
	Chapter 724 of the Transportation Code contains the "implied consent"
provisions that control suspension of a driver's license when a driver who is arrested
for DWI refuses to provide a breath sample.  Allen v. State, 11 S.W.3d 474, 475  (Tex.
App.--Houston [1st Dist.] 2000), aff'd, 48 S.W.3d 775 (Tex. Crim. App. 2001).
Section 724.048 addresses the relationship between administrative proceedings under
the implied consent provisions of the Transportation Code and related or
corresponding criminal proceedings.  Tex. Transp. Code Ann. § 724.048 (Vernon
1999). 
	Pursuant to section 724.048(a), determinations by an ALJ or the DPS are civil
matters that are "independent of" and "not an estoppel" to criminal matters arising
from or related to administrative suspension or denial of a driver's licence and "[do]
not preclude" related criminal litigation.  Tex. Transp. Code Ann. § 724.048(a). 
Conversely, section 724.048(b) specifies that,
	(b) Except as provided by Subsection (c), the disposition of a criminal
charge does not affect a license suspension or denial under this chapter
and is not an estoppel as to any matter in issue in a suspension or denial
proceeding under this chapter.

	(c) If a criminal charge arising from the same arrest as a suspension
under this chapter results in an acquittal, the suspension under this
chapter may not be imposed.  If a suspension under this chapter has
already been imposed, the department shall rescind the suspension and
remove references to the suspension from the computerized driving
record of the individual.

Tex. Transp. Code Ann. § 724.048(b)-(c) (emphasis added).  Disposition of a
criminal charge does not affect a license suspension proceeding under the implied-consent statute, therefore, unless the charge results in an acquittal.  See id.; Nielsen,
102 S.W.3d at 316.
	As commanded by the Legislature in enacting section 724.003, DPS and the
State Office of Administrative Hearings adopted rules governing administration of
the provisions of the implied-consent statute.  Tex. Transp. Code Ann. § 724.003
(Vernon 1999); see Nielsen, 102 S.W.3d at 316 (citing same).  The rules for
administrative license revocation adopted in accordance with section 724.003 appear
in subchapter A of chapter 17 of Chapter 37 of the Administrative Code.  See 37 Tex.
Admin. Code §§ 17.1-.16 (West 2008) (Tex. Dep't of Pub. Safety, Admin. License
Revocation).  Rule 17.13 states the controlling rule regarding the effect of an acquittal
of a related criminal charge on DPS revocation of a driver's license through
administrative suspension or disqualification,whether brought pursuant to sections
49.04, 49.07, or 49.08 of the Penal Code or, as here, pursuant to section 106.041 of
the Alcoholic Beverage Code.  37 Tex. Admin. Code § 17.13 (West 2008) (Tex.
Dep't of Pub. Safety, Effect of Acquittal).  
	In accordance with section 724.048(c) of the Transportation Code, section
17.13(a) of the DPS administrative rules prohibits DPS from imposing "a suspension
arising out of the same conduct or transaction" that results in an acquittal upon receipt
by DPS of notice of the acquittal.  37 Tex. Admin. Code § 17.13(a).  Section 17.13(c)
further specifies the "types of dispositions of any criminal complaint [that] shall not
be regarded as an acquittal."  37 Tex. Admin. Code § 17.13(c) (emphasis added). 
A "pre-trial order of dismissal where jeopardy has not attached" is among the "types
of dispositions of any criminal complaint [that] "shall not be regarded as an
acquittal."  37 Tex. Admin. Code § 17.13(c)(1) (emphasis added).  
	To prevail on his claim that dismissal of his related criminal charge barred
administrative suspension of his driving privileges, therefore, Varme had to establish
that he was "acquitted" in a proceeding in which "jeopardy attached."  Tex. Transp.
Code Ann. § 724.048(b)-(c); 37 Tex. Admin. Code § 17.13(a), (c)(1).  
	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 523, 527
(Tex. Crim. App. 1995).  For a dismissal or abandonment of a criminal accusation to
constitute the equivalent of an acquittal, jeopardy must have attached.  See State v.
Stanley, 201 S.W.3d 754, 658-59 (Tex. Crim. App. 2006).  Jeopardy attaches when
both sides have announced ready and the defendant has entered his plea to the
charging instrument.  State v. Torres, 805 S.W.2d 418, 421 (Tex. Crim. App. 1991). 
	In this case, there was never a finding by a criminal court that Varme was "not
guilty" of the underlying criminal charge of DWI.  See Ex parte George, 913 S.W.2d
at 527.  Likewise, because there was never a criminal trial in which a jury had been
empaneled, and in which the State and Varme had both announced "ready," jeopardy
never attached in Varme's underlying criminal case.  See Torres, 805 S.W.2d at 421;
see also Murphy v. State, 239 S.W.3d 791, 795-96 (Tex. Crim. App. 2007) (holding
that issue of lack of probable cause was preliminary issue, but "merely" relevant to 
"admissibility of evidence" and thus not element of offense that would preclude
alternative, district-court conviction for possession of controlled substance after
justice-court dismissal of related offense of possession of drug paraphernalia).
	Here, as in Nielsen, 102 S.W.3d at 316, therefore, the court below erred as a
matter of law, to the extent that it may have concluded that dismissal of Varme's
underlying criminal case required that DPS vacate suspension of Varme's license to
drive.  See Tex. Gov't Code Ann. § 2001.174(2)(D).  We further hold that the error
prejudiced the substantial rights of DPS to enforce the Transportation Code.  See id.
§ 2001.174(1).
	We sustain DPS's first issue.
B.	Substantial Evidence Supported the ALJ's Order
	In its second issue, DPS contends, alternatively, that substantial evidence
supports the ALJ's order and, therefore, that the court below erred as a matter of law
by substituting its opinion for the opinion of the ALJ, in violation of the standard of
review.  Once again, we agree.  
	The sworn DIC-23, 24, and 25 reports of Officer Gonzalez constituted
substantial evidence to support the ALJ's finding that Gonzalez had probable cause
to arrest Varme for DWI, and the ALJ relied on facts stated in those reports in his
findings of fact.  As those findings recite, Varme was driving 20 miles per hour over
the posted speed limit on Westheimer Road in Houston.  In addition, probable cause
to arrest Varme existed, not only because Officer Gonzalez observed Varme speeding,
but also because he observed that Varme had "an odor of alcohol and slurred speech." 
The DIC-23 report filed by Gonzalez recites, in addition, that Varme admitted he had
been drinking; the odor of alcohol that Gonzalez sensed from Varme was "strong";
his walking was "unsure"; his balance was "poor"; and his eyes were "bloodshot." 
It is undisputed that Varme refused to submit a breath sample.  Varme presented no
evidence to the ALJ that controverted the sworn statements in Gonzalez's report.  
	In accordance with the substantial evidence that supports the ALJ's findings,
we hold that probable cause existed to arrest Varme for DWI; specifically, Varme was
operating a motor vehicle in a public place while intoxicated, as proscribed by Tex.
Transp. Code Ann. § 724.042(2).  Because substantial evidence supports the ALJ's
finding, the reviewing court below erred as a matter of law, to the extent it may have
concluded otherwise in vacating the ALJ's order.  See Tex. Gov't Code Ann. §
2001.174(2)(E).  We further hold that this error prejudiced the substantial rights of 
DPS to enforce the Transportation Code.  See id. § 2001.174(1).
	We sustain DPS's second issue. 
Conclusion

	We reverse the judgment of the trial court and render judgment reinstating
suspension of Varme's driving-license privileges.  See id. § 2001.174(1).


						Sherry Radack
						Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.
1. See Tex. Transp. Code Ann. §§ 724.001-.064 (Vernon 1999 & Supp. 2007).
2. See Tex. Transp. Code Ann. § 724.041, .042 (Vernon 1999 & Supp. 2007)
(establishing, respectively, procedures for hearing before State Office of
Administrative Hearings on suspension or denial of driver's license and issues to be
determined at hearing); see generally 1 Tex. Admin. Code § 159.1--.41 (West 2008)
(State Office of Admin. Hearings, Rules of Procedure for Administrative License-Suspension Proceedings).
3. See Tex. Transp. Code Ann. § 524.041(d) (Vernon 2007) (limiting right of appeal
of DPS to "issues of law"); 1 Tex. Admin. Code § 159.37(g) (same).
4. The record on appeal contains the complete record of the administrative hearing.  See
Tex. Transp. Code Ann. § 524.043 (Vernon 2007).  
5. See Tex. Transp. Code Ann. § 724.043 (Vernon Supp. 2007) ("Findings of
Administrative Law Judge").
6. Because the substantial-evidence standard controlled, the court below had no
authority, to the extent that it may have done so, to consider Varme's legal and factual
sufficiency challenges to the evidence supporting the ALJ's rulings.  More than a
scintilla of evidence constitutes "substantial evidence."  See Mireles v. Tex. Dep't of
Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).  In that respect, substantial-evidence
review is similar to legal-sufficiency review.  See Dozier v. Texas Employment
Comm'n, 41 S.W.3d 304, 309 (Tex. App.--Houston [14th Dist.] 2001, no pet.)
(contrasting standards).  But the standards differ:  a court conducting a substantial
evidence review must presume both that the agency decision is valid and that
substantial evidence supports it.  See Collingsworth Gen. Hosp. v. Hunnicutt, 988
S.W.2d 706, 708 (Tex. 1998).  Neither of these apply to traditional legal-sufficiency
review.  Regarding Varme's factual-sufficiency challenge, as a court conducting a
substantial-evidence review of an ALJ ruling, the court below had no authority to
decide issues of fact.  See Tex. State Bd. of Dental Examiners v. Sizemore, 759
S.W.2d 114, 116 (Tex. 1988); cf. Tex. Gov't Code Ann. § 2001.174 (Vernon 2000)
(proscribing court conducting substantial evidence from substituting its judgment for
the ALJ's judgment "on the weight of the evidence on questions committed to agency
discretion"); see also Mireles, 9 S.W.3d at 131 (noting that reviewing court may
affirm ALJ's decision "even if the evidence preponderates against it").
