                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


 TEXAS DEPARTMENT OF PUBLIC                      §
 SAFETY,                                                         No. 08-07-00099-CV
                                                 §
                   Appellant,                                       Appeal from the
                                                 §
 v.                                                           Count Court at Law No. 2
                                                 §
                                                               of Bexar County, Texas
 CHRISTINA FRANCES TORREY,                       §
                                                                    (TC# 321149)
                   Appellee.                     §


                                          OPINION

       This is an appeal from a decision of County Court at Law No. 2 from Bexar County

overturning a decision of the Texas Department of Public Safety (“DPS”) suspending

Ms. Torrey’s concealed handgun license. We reverse and render.

       On February 25, 2006, Ms. Torrey was charged with a Class B misdemeanor offense of

driving while intoxicated. DPS notified Ms. Torrey of their intention to suspend her license.

Ms. Torrey requested a hearing on the suspension. Ms. Torrey won the appeal of her suspension

in justice court arguing that DPS failed to follow the proper notice requirements. DPS appealed

the justice court’s decision to the county court at law. The county court at law ruled in favor of

Ms. Torrey stating the law is unconstitutional. The judge stated:

       Just because a person is charged with an offense does not mean they’re guilty of
       it. And while the charge is pending, I don’t think -- I think the State would be
       better off waiting for the conviction and then doing the license revocation. This
       person could be found not guilty and then you’d be withdrawing their license
       wrongly, and I don’t think that’s right either. I mean, you need to find out what’s
       going to happen with this case before you actually do -- do it.
                                       .          .         .
       It’s a matter of constitutional fundamental rights.

The judge overturned the suspension based on the fact that their was no final conviction of the

charge. DPS requested findings of fact and conclusions of law, and filed a notice of late findings

of fact and conclusions of law, which to this date have not been prepared.

       DPS raises one issue on appeal, arguing that the trial court failed to analyze or apply the

law correctly in overruling DPS’ suspension of the concealed handgun license.

       A concealed handgun license may be suspended if the license holder is charged with the

commission of a Class A or Class B misdemeanor or an offense under Section 42.01, Penal

Code, or of a felony under an information or indictment. TEX .GOV ’T CODE ANN .

§ 411.187(a)(1)(Vernon 2005). At a properly requested hearing on the suspension of a license:

               The justice court shall determine if the denial, revocation, or suspension is
       supported by a preponderance of the evidence. Both the applicant or license
       holder and the department may present evidence. The court shall affirm the
       denial, revocation, or suspension if the court determines that denial, revocation, or
       suspension is supported by a preponderance of the evidence. If the court
       determines that the denial, revocation, or suspension is not supported by a
       preponderance of the evidence, the court shall order the department to
       immediately issue or return the license to the applicant or license holder.

TEX .GOV ’T CODE ANN . § 411.180(c).

       The party adversely affected by the court’s ruling may appeal to the county court at law in

the county, and such trial on appeal will be conducted de novo without a jury. TEX .GOV ’T CODE

ANN . § 411.180(e). Whether DPS’ decisions is supported by a preponderance of the evidence is

a question of law. See Tex. Dep’t of Pub. Safety v. Manwell, 236 S.W.3d 905, 907 (Tex.App.--

Corpus Christi 2007, no pet.). Thus, we review the county court’s judgment de novo. Id.

       DPS argues the trial court clearly failed to analyze or apply the law correctly. We agree.



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It was undisputed that there was a Class B misdemeanor charge against Ms. Torrey, which is an

offense for which a concealed handgun license may be suspended. TEX .GOV ’T CODE ANN .

§ 411.187(a)(1). While the trial court reversed the suspension since there was no final

conviction, a trial court has no discretion in determining what the law is or applying the law to

the facts. Meyer v. WMCO-GP, LLC, 211 S.W.3d 302, 308 (Tex. 2006). DPS met its burden of

proof with the undisputed pending Class B misdemeanor. The trial court’s erroneous legal

conclusion was an abuse of discretion. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

DPS’ sole issue is sustained.

       Having sustained Appellant’s sole issue, we reverse the judgment of the trial court and

render judgment affirming DPS’ suspension of Ms. Torrey’s concealed handgun license pending

the resolution of the charges against her.



March 19, 2009
                                              DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, and Carr, JJ.
Carr, J., Not Participating




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