                               AUSTIN.     TFCS       78711




                                      November      29, 1973


The    Honorable      Robert   W.   Gage                    Opinion    No.   H- 164
County Attorney
Freestone   County                                          Re:     Testimony      by affidavit
Fairfield,  Texas 75840                                             in driver’s    license
                                                                    suspension     hearings
Dear    Mr.   Gage:

         You have asked our opinion concerning      the admissibility     of an officer’s
affidavit    in a driver’s   license suspension proceeding  under Article      802f.
Vernon’s      Texas Penal Code, the “implied     consent” law.     Section 2 of that
article    provides   in part:

                         “If a person under arrest           refuses,    upon the
               request      of a law enforcement         officer,     to submit to
               a chemical       breath test designated          by the law enforce-
               ment officer       as provided       in Section 1, none shall be
               given,      but the Texas Department            of Public Safety,
               upon the receipt          of a sworn report of the law enforce-
               ment officer       that he had reasonable          grounds to believe
               the arrested       person had been driving           or was in actual
               physical      control     of a motor vehicle       upon the public
               highways       of this State while under the influence            of
               intoxicating      liquor and that the person had refused to
               submit to the breath test upon the request of the law
               enforcement         officer,    shall set the matter for a hear-
               ing as provided          in Section 22(a), Chapter 173, Acts of
               the 47th Legislature,           Regular    Session,      1941, as amended
                (Article     6687b, Vernon’s         Texas Civil Statutes).       . . . ”


       Section 22(a), Article     6687b, of Vernon’s     Texas Civil Statutes,  establishes
a hearing   procedure   initiated  by the Director    of the Department   of Public Safety.
The hearing    is before a mayor,     municipal   judge or justice of the peace who reports




                                           p. 757
The Honorable       Robert    W.   Gage,    page   2 (H-164)




his findings   to the Department,   which then has the authority        to suspend
the license   for the length of time recommended.           In the event of an
adverse   finding by the hearing   officer,   lhe licensee    has the right to appeal
to the county court with the appeal to be tried de nova.           On such appeal
the burden remains with the State.       Department      of Public Safety v. Guleke,
366 S. W. 2d 662 (Tex. Civ.App.,        Amarillo,     1963, no writ).

        Although    a driver’s    license has been classified      generally    as a
privilege    rather than a right,      [Gillaspie   v. Department     of Public Safety,
259 S. W. 2d 177 (Tex.         1953), Lowe v. Texas Department          of Public Safety,
423 S. W. 2d 952 (Tex. Civ.App.,             Houston [14th Dist. ] 1968, writ ref’d)],
it may not be revoked        or suspended without the observance           of the due
process     g’uarantees    of the Fourteenth       Amendment    to the United States
Constitution.      Bell v. Burson,       402 U.S. 535 (1971).

         The facts and conclusions         alleged   in the arresting     officer’s   affidavit
will involve     the major,     if not sole, point of contention        of any hearing      on
the suspension       of a driver’s    license for failure       to submit to a chemical        test
to determine       the alcohol    content of the blood.        Due process     requires    that
the licensee      be given an opportunity        at some point to confront        and cross-
examine     the witness for the Department.             If the licensee    were not allowed
to challenge      the sufficiency    of the officer’s     belief,   he would not have an
effective    right to be heard.

         However,     the requirements        of due process   do not tie the State to a
rigid procedural        scheme.      It has often been held that any deficiencies      of
a hearing      in the justice    court are cured by the trial --  de novo.   Texas Depart-
ment of Public        Safety    v. Richardson,      384 S. W. 2d 128 (Tex.   1964); Hall v.
Texas Department          of Public Safety,      413 S. W. 2d 470 (Tex. Civ. App.,     Austin,
1967, no writ).        The United States Supreme         Court has impliedly    adopted this
position    by indicating     that certain    requisites  of due process   required   in a
driver’s     license   suspension      proceeding    may be omitted at the administrative
hearing    if they are afforded        at the trial --
                                                     de novo.  Bell v. Burson,    s,       at
543.

       It is well established  that the initial         hearing    before a municipal   judge
or justice   of the peace is an administrative           rather    than a judicial proceeding.




                                           p. 758
The Honorable     Robert   W.   Gage,    page   3 (H-164)




See Attorney   General    Opinion M-653 (1970) and cases cited therein.
Administrative    hearings   are not limited    by the strict rules of evidence,
and it is not error   to permit   the introduction   of an ex parte affidavit.
Traders    and General   Insurance   Co. v. Lincecum,       126 S. W. 2d 692
(Tex. Civ. App.,    Fort Worth,    1939, no writ).

        Therefore,    it is our opinion that it is not error    to permit the intro-
duction of an officer’s     affidavit at the administrative    hearing   on a driver’s
license   suspension,     where there is provision    for a trial --
                                                                   de novo in the
county court.

                                  SUMMARY

                       Since administrative      hearings     are not limited to
              the strict rules of evidence,         introduction    of an officer’s
              affidavit    at an administrative      hearing    on suspending     a
              driver’s     license under Article       802f, Vernon’s     Texas
              Penal Code, is not error          so long as there is an oppor-
              tunity for a trial -- de novo in the county court.




APPRGVED:




Opinion   Committee




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