
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-02-314 CV

____________________


TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant


V.


RONALD LLOYD NIELSEN, Appellee




On Appeal from the County Court at Law No. 3
Montgomery County, Texas

Trial Cause No. 02-16,121




MEMORANDUM TO CLERK
	You are directed to make the following correction in the opinion dated March 20,
2003:
	On page 6, in the third line of the second paragraph, change the word that to than.
	You will give notice of the correction of the original opinion by sending a copy of
corrected page 6, accompanied by this memorandum, to all interested parties who received
a copy of the original opinion.
	Entered this the 27th day of March, 2003.
								PER CURIAM
In The


Court of Appeals


Ninth District of Texas at Beaumont


____________________


NO. 09-02-314 CV

____________________


TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant


V.


RONALD LLOYD NIELSEN, Appellee




On Appeal from the County Court at Law No. 3
Montgomery County, Texas

Trial Cause No. 02-16,121




O P I N I O N
	An Administrative Law Judge ("ALJ") authorized the Texas Department of Public
Safety ("DPS") to suspend Ronald Lloyd Nielsen's driving privileges for 180 days. 
Nielsen appealed to the trial court, which reversed the administrative decision.  DPS
appeals.  Nielsen did not file an appellate brief.
	A deputy stopped Nielsen for speeding and driving in a center turn lane while
passing other vehicles.  The officer smelled alcohol in Nielsen's vehicle.  After Nielsen
admitted he had been drinking and refused to take field sobriety tests, the officer arrested
Nielsen and took him to the Montgomery County jail where he refused to provide a
breathalizer sample. 
	Nielsen received a notice of suspension of his driver's license for refusing to
provide a breath specimen following his DWI arrest.  Nielsen requested a suspension
hearing.  After the hearing, the ALJ authorized DPS to suspend Nielsen's driver's license
on March 25, 2002.  Subsequently, the state's attorney filed a motion to dismiss criminal
charges against Nielsen because the offense of driving while intoxicated could not be
proven beyond a reasonable doubt.  The case against Nielsen was dismissed on  April 17,
2002. 
	Nielsen appealed the administrative decision to the county court at law.  There,
Nielsen argued lack of reasonable suspicion and lack of probable cause as well as arguing
that the dismissal was the equivalent of an acquittal on his criminal charges.  Admitted into
evidence was the suspension hearing transcript and the state's motion to dismiss.  The trial
court ruled in Nielsen's favor. 
	We review administrative license suspension decisions under the substantial
evidence standard, and may not substitute our judgment for that of the agency.  Mireles
v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999); see Tex. Transp. Code
Ann. §§ 724.047, 524.002 (Vernon 1999); see also Tex. Dep't of Pub. Safety v.
Thompson, 14 S.W.3d 853, 855 (Tex. App.--Beaumont 2000, no pet.); Tex. Gov't Code
Ann. § 2001.174 (Vernon 2000).  "The issue for the reviewing court is not whether the
agency's decision was correct, but only whether the record demonstrates some reasonable
basis for the agency's action."  Mireles, 9 S.W.3d at 131.  "Courts must affirm
administrative findings in contested cases if there is more than a scintilla of evidence to
support them.  In fact, an administrative decision may be sustained even if the evidence
preponderates against it."  Id. (citations omitted). 
	In its first issue, DPS contends the trial court erred in holding the suspension should
be dismissed based on the assistant district attorney's decision not to prosecute Nielsen for
driving while intoxicated.  DPS asserts the Texas Transportation Code provides that only
an acquittal will result in rescission of an administrative suspension and that DPS's
administrative rules and case law specifically exclude a decision not to prosecute from the
definition of an acquittal.  We agree that the district attorney's decision not to prosecute
will not support the trial court's decision.
	While the trial court's order does not state a reason for overruling the administrative
decision, and no findings of fact were requested, the record is clear that the trial court
considered dismissal of the criminal charges to be an important factor in its decision.
Before ruling, the court stated that the dismissal "equals an acquittal," and "[t]herefore,
this person's license should not be suspended for any administrative reason whatsoever." 
	Under section 724.048 of the Transportation Code, the disposition of a criminal
charge arising from the same arrest as an administrative license suspension has no bearing
on the suspension unless the defendant is acquitted of the criminal charge.  See Tex. 
Transp. Code Ann. § 724.048 (b), (c) (Vernon 1999).  The Transportation Code also
requires DPS to adopt rules to administer the suspension statutes.  See Tex. Transp. Code
Ann. § 724.003 (Vernon 1999).  The adopted rules specifically provide that a pre-trial
order of dismissal where jeopardy has not attached shall not be regarded as an acquittal.
37 Tex. Admin. Code § 17.13 (c)(1) (2002).
	Texas case law construes "acquittal" and "attachment of jeopardy."  An acquittal
is  an "official factfinding" "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 be the equivalent of an
acquittal, jeopardy must have attached.  Lewis v. State, 889 S.W.2d 403, 406 (Tex.
App.--Austin 1994, pet. ref'd).  Jeopardy attaches when both sides have announced ready
and the defendant has pled to the charging instrument.  State v. Torres, 805 S.W.2d 418,
421 (Tex. Crim. App. 1991).  
	Here, we have no record of a jury being chosen or plea taken in the criminal matter. 
Accordingly, the prosecutor's dismissal of the criminal charges against Nielsen was not
tantamount to an acquittal, and the trial court's decision in this license suspension case
cannot be affirmed on that ground.  See Texas Dept. of Public Safety v. Norrell, 968
S.W.2d 16, 19-20 (Tex. App.--Corpus Christi 1998, no pet.); see Texas Dept. Public
Safety v. Stacy, 954 S.W.2d 80 (Tex. App.--San Antonio 1997, no writ).
	However, we must review other grounds possibly supporting the trial court's
decision in Nielsen's favor.  Here, the trial court did not issue written findings of fact and
conclusions of law, and we may not consider its oral comments as a substitute for such
findings and conclusions.  In re Doe 10, 78 S.W.3d 338, 345 n.2 (Tex. 2002) (citing In
the Interest of W.E.R., 669 S.W.2d 716, 716 (Tex. 1984)). In the absence of findings of
fact and conclusions of law, we imply that the trial court found all facts necessary to
support its judgment as long as they also are supported by the evidence.  BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002).  However, those implied
findings may be challenged on appeal for legal and factual sufficiency where the appellate
record includes the reporter's and clerk's records.  Id. 
	The Amarillo Court of Appeals recently considered a similar license suspension
case,  Tex. Dep't of Pub. Safety v. Wilmoth, 83 S.W.3d 929 (Tex. App.--Amarillo 2002,
no pet.).  In Wilmoth, criminal charges against the defendant were dismissed; the trial
court apparently made oral statements about the legality of maintaining the license
suspension after criminal charges were dismissed; and the trial court did not enter written
findings of fact and conclusions of law regarding its reversal of the administrative decision. 
Wilmoth, 83 S.W.3d at 931.  The Wilmoth Court determined that DPS was required to
address each ground asserted by Wilmoth as justifying reversal.  DPS did not do so, but
instead restricted its appellate complaint to the proposition that dismissing a criminal
charge for driving while intoxicated did not warrant reversal of the administrative decision. 
Id.  Thus, reasoned the Wilmoth Court in affirming the trial court, DPS failed to carry its
appellate burden and waived its opportunity to complain of the order.  Id. (citing Secure
Comm, Inc. v. Anderson, 31 S.W.3d 428, 430-31 (Tex. App.--Austin 2000, no pet.)).  
	Here, however, in its second issue DPS challenges other bases for the trial court's
decision.  In issue two, DPS maintains that if the  trial court reversed the administrative
decision for any reason other than the criminal DWI dismissal, it erred in substituting its
judgment for that of the administrative judge, whose reasonable suspicion and probable
cause determinations are supported by substantial evidence. 
	Though Nielsen included several complaints in his petition of appeal, (1) the
arguments, other than dismissal of criminal charges, he presented before the trial court 
were lack of reasonable suspicion and lack of probable cause.  Nielsen argued the officer
did not have reasonable suspicion for the traffic stop because the officer was not using
radar, but only estimated  Nielsen's speed.  Nielsen further argued that there was no
probable cause for the arrest because there were no signs of Nielsen's being intoxicated
other than the odor of alcohol coming from the vehicle and Nielsen's statement he had
three or four beers.  Nielsen maintains there was "no slurring, no stumbling, and no field
sobriety test at all." 
	  As to whether there was reasonable suspicion to stop Nielsen, the officer testified
he observed Nielsen driving a vehicle at a high rate of speed in the center turn lane while
recklessly passing other vehicles.  The officer estimated Nielsen was driving at least sixty-five to seventy miles per hour in an area with a speed limit of fifty-five.  DPS was not
required to show that a traffic offense actually was committed, but only that the officer
reasonably believed that a violation was in progress.  Powell v. State, 5 S.W.3d 369,
376-77 (Tex. App.--Texarkana 1999, pet. ref'd).  Under the Mireles standard, we find
there is substantial evidence that the officer had reasonable suspicion to stop Nielsen.  See
Mireles, 9 S.W.3d at 131. 
	As to whether there was probable cause for Nielsen's arrest, the officer noticed
several signs of intoxication.  There was an alcoholic odor coming from the vehicle;
Nielsen would not make eye contact with the officer; Nielsen kept looking forward; the
officer had to repeat questions before Nielsen would answer; and Nielsen would not roll
down the window and "kept trying to stick documents through just a very small crack in
his window."  When asked if he had been drinking, Nielsen stated he had consumed from
two to four beers.  Nielsen refused to take field sobriety tests.  The totality of the
circumstances is substantial evidence of  probable cause for Nielsen's arrest.  See State v.
Garrett, 22 S.W.3d 650, 655 (Tex. App.--Austin 2000, no pet.).
	Neither of Nielsen's additional grounds for reversal of the administrative decision
- lack of reasonable suspicion and lack of probable cause - is supported by the record,
and, thus, neither can be a basis for upholding the trial court's decision.  Rather, the
record demonstrates some reasonable basis for DPS's actions.  We must affirm
administrative findings in contested cases if there is more than a scintilla of evidence to
support them.  See Mireles, 9 S.W.3d at 131.
	Accordingly, DPS's issues are sustained.  We reverse the judgment of the county
court at law and render judgment reinstating the administrative order authorizing DPS to
suspend Nielsen's driving privileges.
	REVERSED AND RENDERED.





                                                                                     DON BURGESS

                                                                                            Justice

Submitted on March 10, 2003
Opinion Delivered March 20, 2003


Before McKeithen, C.J., Burgess and Gaultney, JJ.
CONCURRING OPINION

	I reluctantly concur.  Although the law is clear, it is beyond me how reasonable
minds can accept as fact the basic premise of the State, i.e., obtaining and keeping a
driver's license is a privilege, rather than a right.  It offends my sense of justice that what
should be a citizen's right to operate a motor vehicle on a public road can be taken away
on the mere suspicion of a police officer.  Yet, current law does exactly that.  Therefore,
I must concur in the result. 

							_____________________________
								STEVE MCKEITHEN
								       Chief Justice

Concurrence Delivered
March 20, 2003
1.  In his petition, Nielsen contended: (1) DPS's findings, inferences and decisions
violated the  applicable statute and rules; (2) the ALJ's  findings, inferences, and decisions
were not reasonably supported by substantial evidence; (3) the ALJ abused his discretion
and his findings, inferences, and decisions were arbitrary and capricious; and (4) the
hearing evidence was insufficient to suspend Nielsen's driver's license.

