       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00624-CV



                         Texas Department of Public Safety, Appellant

                                                  v.

                                     Frank Allocca, Appellee


               FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
         NO. C-1-CV-08-003145, HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                                           OPINION


               The Texas Department of Public Safety (the Department) appeals from the

trial court’s order reversing an administrative decision rendered by the State Office of Administrative

Hearings (SOAH), authorizing suspension of appellee Frank Allocca’s driver’s license. The

trial court reversed and restored Allocca’s driving privileges based on a determination that the

administrative decision was not supported by substantial evidence. We affirm the judgment of the

trial court.


                                         BACKGROUND

               At approximately 1:45 a.m. on June 5, 2007, Austin Police Department

Officer Shawn Williams was dispatched to a Jiffy Lube location on West Parmer Lane to investigate

a suspicious vehicle reported in the parking lot. Upon reaching the location, Williams observed

Allocca sleeping in the driver’s seat of his vehicle with the engine running. After waking Allocca,
Williams noted that he had glassy eyes, smelled of alcoholic beverages, and swayed upon exiting the

vehicle. Williams administered field sobriety tests, which gave some indication that Allocca was

intoxicated. Allocca also had five beers in his possession and admitted to Williams that he had

consumed two or three beers that evening. Based on his observations, Williams arrested Allocca for

driving while intoxicated (DWI). Allocca refused Williams’s request to provide a breath specimen

in connection with the arrest.

               Allocca’s driver’s license was suspended as a result of his refusal to provide a

breath specimen and he appealed the suspension to SOAH. See Tex. Transp. Code Ann. § 724.035

(West Supp. 2008) (Department shall automatically suspend driver’s license of person who refuses

to provide specimen upon arrest for DWI). The evidence presented at the administrative hearing

consisted solely of Williams’s incident report and Allocca’s testimony. Allocca testified that he was

the manager of the Jiffy Lube location where the incident occurred and that he had left his vehicle

parked behind the Jiffy Lube after work that day and gone to a sports bar with some friends.

According to Allocca, a friend’s girlfriend had driven him to the sports bar and then dropped him

off at his vehicle later that evening. Allocca testified that when he returned to his vehicle, he ate

some food and then reclined the driver’s seat in order to go to sleep. When asked why he chose to

sleep in his vehicle, Allocca answered, “Because I had already been arrested for DWI and knew I was

drinking and didn’t want to drive again.” Allocca further testified that the vehicle was not running

when he initially went to sleep, but that he later woke up and turned on the vehicle because he was

hot and wanted to use the air conditioning. During the time that Allocca was asleep in his vehicle,




                                                 2
his feet were on the floorboard and the vehicle was in park. The Department did not challenge

Allocca’s credibility on any portion of his testimony.1

               The administrative law judge (ALJ) issued an order suspending Allocca’s

driver’s license for two years and Allocca appealed to the county court at law of Travis County,

arguing that there was not probable cause to believe he had actually operated the vehicle while

intoxicated. After a hearing, the county court determined that the ALJ’s decision was not supported

by substantial evidence and issued an order reversing the administrative decision and reinstating

Allocca’s driver’s license. The Department now appeals, arguing in a single point of error that the

county court erred in reversing the ALJ’s decision because probable cause existed to believe that

Allocca had operated his vehicle while intoxicated.


                                   STANDARD OF REVIEW

               Administrative license revocation cases are reviewed using a substantial-evidence

standard. See Tex. Transp. Code Ann. § 524.002(b) (West 2007), § 724.047 (West 1999);

Tex. Gov’t Code Ann. § 2001.174 (West 2008); see also Texas Dep’t of Pub. Safety v. Varme,

262 S.W.3d 34, 38 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“Whether in the trial court or

this Court, the substantial-evidence standard governs review of administrative decisions in

driver’s license-suspension cases.”). Under substantial-evidence review, an administrative decision




       1
          Williams’s incident report states that he observed Allocca sleeping in the driver’s seat of
his truck with the engine running and that Allocca was “surprised” to be awakened by police. The
report further states that Allocca informed Williams that he left the engine running in order to check
the oil pressure on the truck and “he also wanted the truck engine on so he could have air
conditioning while he slept.”

                                                  3
may not be reversed unless substantial rights of the appellant have been prejudiced because

the decision is:


       (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(2).


               Issues on appeal that are strictly questions of law are reviewed de novo. Texas Dep’t

of Pub. Safety v. Jackson, 76 S.W.3d 103, 106 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see

also Partee v. Texas Dep’t of Pub. Safety, 249 S.W.3d 495, 499 n.3 (Tex. App.—Amarillo 2007,

no pet.) (“Once the underlying facts are established, the existence of probable cause is a question of

law for the court.”).


                                          DISCUSSION

               At a driver’s license suspension hearing, the Department bears the burden of proving

that (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 and asked to submit to a breath or blood test; and

                                                  4
(4) the person refused the request to provide a specimen. See Tex. Transp. Code Ann. § 724.042

(West Supp. 2008).

               Only the second factor remains in dispute in the present case, as Allocca conceded

in the administrative hearing that there was reasonable suspicion to investigate him, that he was

placed under arrest, and that he refused Williams’s request to provide a breath specimen.2

Furthermore, Allocca testified that the Jiffy Lube parking lot was open to the public and that, on the

night in question, he had been drinking to the point where he did not think he should drive.

Therefore, this appeal turns solely on the question of whether Allocca, by sleeping in the car with

the engine running, actually operated his vehicle as a matter of law. See id. (requiring probable cause

to believe person was “operating a motor vehicle in a public place while intoxicated”)

(emphasis added).

               While the transportation code does not provide a definition of “operating,” the court

of criminal appeals has held that for purposes of DWI, a defendant operates a vehicle when the

totality of the circumstance demonstrates “that the defendant took action to affect the functioning

of his vehicle in a manner that would enable the vehicle’s use.” Denton v. State, 911 S.W.2d 388,

390 (Tex. Crim. App. 1995). This definition does not require that the vehicle actually move. See

id. (holding operation occurred when defendant started ignition and revved accelerator in attempt

to move vehicle).




       2
         At the hearing, Allocca’s counsel stated, “On June 5 reasonable suspicion? Definitely. An
officer can walk up and talk to anyone. . . . Defendant was placed under arrest. Definitely.
Defendant refused. Definitely. On June 5 probable cause existed that the Defendant was operating
the vehicle? No, sir.”

                                                  5
                In support of its argument that Allocca was operating the vehicle when Thomas found

him sleeping in it, the Department points to a number of cases in which a driver was considered to

have operated a vehicle despite being found asleep at the wheel. See Dornbusch v. State,

262 S.W.3d 432, 433, 437-38 (Tex. App.—Fort Worth 2008, no pet.) (holding that operation

occurred where driver was found asleep, “hunched over the steering wheel” in parking lot with

headlights on and loud music playing and where “there was testimony indicating that the vehicle was

not in park and that the only thing keeping the vehicle from moving was the curb”); Stagg v. Texas

Dep’t of Pub. Safety, 81 S.W.3d 441, 445 (Tex. App.—Austin 2002, no pet.) (concluding that

probable cause existed that driver, found asleep at wheel and blocking lane of traffic, had operated

vehicle, noting that “[t]he fact that the car was in the center of the street, not stopped at the curb, is

significant”); Milam v. State, 976 S.W.2d 788, 789 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d)

(determining that operation occurred despite driver being found asleep because engine was running,

vehicle was in gear, driver’s foot was on brake, and driver put car in reverse upon being awakened);

Barton v. State, 882 S.W.2d 456, 460-61 (Tex. App.—Dallas 1994, no pet.) (holding that driver who

was asleep at wheel with feet on clutch and brake, engine idling, and car in roadway protruding into

intersection, and who then proceeded to engage clutch and change gears upon being awakened by

police, operated vehicle).3 In each of these cases, there was at least one additional factor, other than


        3
           See also Partee v. Texas Dep’t of Pub. Safety, 249 S.W.3d 495, 500 (Tex. App.—Amarillo
2007, no pet.) (substantial evidence supported finding of probable cause to believe appellant was
operating motor vehicle when discovered asleep at wheel with foot on brake, engine running, brake
lights illuminated, gearshift engaged, and car straddling shoulder and roadside ditch); Hearne
v. State, 80 S.W.3d 677, 680 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (driver operated vehicle
when found asleep at wheel in moving lane of traffic); Freeman v. State, 69 S.W.3d 374, 376
(Tex. App.—Dallas 2002, no pet.) (driver operated vehicle when found asleep with lights on, car in
drive, and wheel resting against curb of public street).

                                                    6
the driver being asleep with the engine running, that indicated the driver had attempted or intended

to drive the vehicle.

                Here, Allocca was not stopped in the middle of a roadway or in a moving lane of

traffic, but was parked in his usual parking space behind the building where he worked. He did not

have a foot on the brake and had not turned on the headlights.4 Furthermore, the car was in park, and

the front seat was reclined to better accommodate sleeping.5            The circumstances in which

Allocca was found, particularly the reclined front seat, would have made it difficult, if

not impossible, for Allocca to “enable the vehicle’s use” for its intended purpose—that being the

purpose of driving, rather than as a source of air conditioning. Therefore, we hold that Allocca did

not take an “action to affect the functioning of his vehicle in a manner that would enable the

vehicle’s use” by sleeping in the car with the front seat reclined, the car in park, the lights off, and

the engine running solely for the purpose of air conditioning, while parked in a parking lot behind

his place of employment. See Denton, 911 S.W.3d at 390. As a result, the administrative

finding that probable cause existed to believe that Allocca was operating his vehicle

while intoxicated is not supported by substantial evidence. The Department’s issue on appeal

is overruled.




       4
          No evidence was presented at the administrative hearing regarding headlights, but
Allocca’s counsel represented at the hearing before the county court that the headlights were not
illuminated and the Department did not challenge this statement.
        5
         The Department does not challenge the factual assertions in Allocca’s testimony, but argues
that according to his own testimony, he was operating the vehicle as a matter of law, based solely
on the fact that the engine was running.

                                                   7
                                         CONCLUSION

               We affirm the trial court’s order reversing the administrative decision and reinstating

Allocca’s driver’s license.



                                              ___________________________________________

                                              Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson
  Dissenting Opinion by Justice Waldrop

Affirmed

Filed: August 31, 2009




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