                                   NO. 07-02-0026-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                  AUGUST 22, 2002
                          ______________________________

                      TEXAS DEPARTMENT OF PUBLIC SAFETY,

                                                                Appellant

                                             v.

                                 HARPER L. WILMOTH,

                                                Appellee
                        _________________________________

     FROM THE COUNTY COURT AT LAW NO. 3 OF MONTGOMERY COUNTY;

                  NO.01-15,823; HON. MASON MARTIN, PRESIDING
                        _______________________________

Before BOYD, C.J., QUINN and REAVIS, J.J.

       The Texas Department of Public Safety (DPS) appeals from a final order reversing

the decision suspending Harper L. Wilmoth’s (Wilmoth) driving privileges. Wilmoth’s

privileges were suspended via an administrative hearing after being arrested for driving

while intoxicated. Appeal was then taken to the local county court at law, which court

reversed the order of suspension. That court so acted upon being presented with evidence

indicating that the State 1) opted not to prosecute Wilmoth for driving while intoxicated and

2) dismissed those charges against him. Through its sole point on appeal, the DPS argues
that the county court should not have reversed the suspension simply because the State

dismissed the pending criminal proceeding for driving while intoxicated. We affirm.

         One whose license has been suspended may appeal to the county court at law for

the county in which the person was arrested. TEX . TRANS. CODE ANN . §524.041(b) (Vernon

1999). Furthermore, review on appeal is generally restricted to the record certified by the

State Office of Administrative Hearings. Id. at §524.043(a).

         Here, Wilmoth appealed the decision of the administrative law judge. In his

“Petition of Appeal from Driver’s License Suspension,” he asserted four grounds allegedly

justifying reversal. They were: 1) the DPS failed to comply with “the dictates of Section 724

of the Texas Transportation Code and Art. 6687b-1, and the agency’s findings, inferences,

and decisions [were] in violation of the statute and rules”; 2) the agency’s findings and

decision were not supported by substantial evidence; 3) the agency’s findings and decision

were arbitrary and capricious and exhibited an abuse of discretion; and, 4) the evidence

was insufficient to support suspension of driving privileges. At trial, the record developed

at the administrative law hearing was tendered to and received by the county court. Then,

counsel for Wilmoth tendered to the court evidence that the pending criminal charge for

driving while intoxicated had been dismissed by the district attorney.1 This caused the

county court to question how Wilmoth’s license could remain suspended if the State was

not going to press the criminal charge. Thereafter, the county court entered its order



         1
           The trial court may permit the tender of additional evidence if “material” and “good reasons” exist for
the failure to pres ent it at the adm inistrative law he aring. T EX . T R A N S . C ODE A N N . §524.043(b ) (Vernon 199 9).
Pursuant to §524.043(b), however, the additional evidence is to be tendered to the administrative law judge
“on conditions determined by the [county] court.” Id. The DPS does not present an issue on appeal
concerning whether the county court at bar had the autho rity to itself receive evidence of the dism issal. So,
we do no t address that m atter.

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reversing the suspension. No reasons supporting the decision were mentioned in the

order. Nor did anyone request findings of fact and conclusions of law.

      On appeal, the DPS cites authority purportedly holding that an administrative

decision suspending driving privileges cannot be reversed simply because the State

refused to press or dismissed criminal charges for driving while intoxicated. See e.g.,

Texas Dept. Public Safety v. Stacy, 954 S.W.2d 80 (Tex. App.--San Antonio 1997, no writ).

However, it said nothing about the other grounds urged by Wilmoth in his live pleading and

purportedly justifying reversal. Nor did it address whether the administrative record

supported the administrative law judge’s decision, an issue which Wilmoth also raised.

      When written findings of fact and conclusions of law are not requested or filed, then

the decision being reviewed must be affirmed on any legal theory finding support in the

evidence. In re W.E.R., 669 S.W.2d 716, 717 (Tex. 1984); Southwestern Newspapers

Corp. v. Curtis, 584 S.W.2d 362, 366 (Tex. Civ. App.--Amarillo 1979, no writ). Moreover,

oral pronouncements by the trial court which allegedly explain its decision cannot be

substituted for those absent findings of fact and conclusions of law. In re W.E.R., 669

S.W.2d at 716; Southwestern Newspapers Corp. v. Curtis, 584 S.W.2d at 366; accord,

Tate v. Tate, 55 S.W.3d 1, 7 n.4 (Tex. App.--El Paso 2000, no pet.) (stating that oral

pronouncements of the trial court will not be accepted as findings of fact). As noted in

W.E.R., the appellate court is not permitted to consider those oral comments. In re

W.E.R., 669 S.W.2d at 717. Finally, when a decision or judgment must be upheld on any

ground supported by the record, it is the appellant’s burden to assign error to each ground

or the decision will be affirmed on the ground to which no complaint was made. Secure



                                            3
Comm, Inc. v. Anderson, 31 S.W.3d 428, 430-31 (Tex. App.--Austin 2000, no pet.);

accord, In re T.M., 33 S.W.3d 341, 348 (Tex. App.--Amarillo 2000, no pet.) (holding that

the appellant waived complaint because it did not negate each potential basis supporting

the trial court’s ruling).

       Here, the county court received into evidence the administrative record and made

a ruling. However, it did not enter written findings of fact and conclusions of law evincing

its reason for so ruling. Nor can its oral statements about the legality of maintaining the

license suspension after criminal charges were dismissed be considered as such findings

and conclusions. In re W.E.R., supra; Southwestern Newspapers Corp. v. Curtis, supra.

Thus, it was incumbent upon the DPS to address each ground asserted by Wilmoth as

justifying reversal. It did not do so. Instead, it restricted its complaint on appeal to the

proposition that dismissing a criminal charge for driving while intoxicated did not warrant

reversal of the administrative decision. Consequently, it failed to carry its appellate burden

as described in Secure Comm and In re T.M. And, by failing to carry its burden, it waived

its opportunity to complain of the order. Secure Comm, Inc. v. Anderson, 31 S.W.3d at

430-31.

       We affirm the final order of the county court.



                                                                 Brian Quinn
                                                                   Justice

Publish.




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