Texas Department of Public Safety v. Kusenberger

OPINION Opinion by: ALMA L. LOPEZ, Justice. This court’s opinion and judgment dated May 10, 2000, were withdrawn by order dated May 19, 2000. This court’s opinion and judgment dated March 24, 1999 are withdrawn, and this opinion and judgment are substituted. Appellant’s motion for rehearing is granted. The appellant, the Texas Department of Public Safety (DPS), appeals the trial court’s judgment reversing an administrative law judge’s order suspending the driv [156] er’s license of the appellee, Alyn Raye Kusenberger. The trial court reasoned that substantial evidence did not exist that Kusenberger refused to give a specimen. Because we disagree, we reverse the judgment of the trial court. Chapter 724 of the Texas Transportation Code (the Code) covers the suspension of a person’s driver’s license if the person is arrested for DWI and refuses to submit to the taking of a breath or blood specimen at the request of a police officer. See Tex. Trans. Code Ann. §§ 724.000-724.064 (Vernon 1999). While the Code authorizes the arresting officer to request a specimen of either breath or blood,1 section 724.035 of the Code permits the DPS to suspend a person’s license if the person refuses “the request of a police officer to the taking of a specimen.” Id. § 724.035 (emphasis added). As a result, the issues at a driver’s license suspension hearing for the refusal to submit a specimen are: (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 by the officer and was requested to submit to the taking of a specimen; and (4) the person refused to submit to the taking of a specimen on request of the officer. Tex. Transp. Code Ann. § 724.042. If the administrative law judge (ALJ) makes an affirmative finding on each of these issues, the ALJ will issue an order authorizing the DPS to suspend the individual’s driver’s license. A suspension order, however, is appealable to the trial court. Id. § 724.047. Section 2001.174 of the Texas Government Code governs an appeal from a driver’s license suspension order. See Texas Dept. of Public Safety v. Valdez, 956 S.W.2d 767, 769 (Tex.App.-San Antonio 1997, no pet.). Under this provision, a trial court may reverse an agency determination if a substantial right of the appellant has been prejudiced because the ALJ’s findings, inferences, conclusions, or decisions are not reasonably supported by substantial evidence considering the record as a whole. See Tex. Gov’t Code Ann. § 2001.174 (Vernon Supp.2000). Substantial evidence requires only a mere scintilla of evidence. See Railroad Comm’n of Texas v. Torch Operating Co., 912 S.W.2d 790, 792-93 (Tex.1995). Under this standard, the reviewing court considers the reasonableness of the ALJ’s order, not the order’s correctness. See Ott v. Texas Dep’t of Public Safety, 958 S.W.2d 294, 295 (Tex.App.-Austin 1998, no pet.); Texas Dep’t of Public Safety v. Raffaelli, 905 S.W.2d 773, 775 (Tex.App.-Texarkana 1995, no pet.). The court of appeals reviews the trial court’s substantial evidence review de novo. Valdez, 956 S.W.2d at 769. In the instant case, we find that the evidence supports the reasonableness of the ALJ’s order. Because the first three issues of the license suspension hearing are not controverted in this appeal, we limit our discussion to the controverted issue: whether Kusenberger refused to submit a specimen. The ALJ found that “Officer Thompson ... asked [Kusenberger] to submit a specimen of breath,” and that, “[a]fter being asked to submit a specimen of breath, [Kusenberger] refused to submit a specimen.” The evidence, however, indicates that Officer Thompson asked Kusen-berger to submit a specimen of blood-not breath. Specifically, Thompson testified that he asked Kusenberger, “would you please give us a specimen of your blood,” and that Kusenberger refused. Although this testimony differs from the ALJ’s findings about what type of specimen Thompson requested, the ALJ is not required to [157] specify the type of specimen the officer requested. See id. §§ 724.042, 724.043. Nor was this difference ever controverted in the trial court. Instead, the controverted issue was whether Kusenberger was capable of consenting to Thompson’s request. At the hearing and in the trial court, Kusenberger’s attorney contended that Kusenberger sustained a head injury during an automobile accident that prevented her from making “a conscious decision to deny the test.” This issue served as the basis for the trial court’s judgment to set aside the suspension order. After reading the reporter’s record for the hearing, and hearing arguments from the attorneys about Kusenberger’s consciousness, the trial judge stated, “I am going to find that she did not refuse the test.” The trial judge, however, misapplied the substantial evidence test. Under a substantial evidence review, the trial court is tasked with determining whether some reasonable basis exists in the record for the action taken by the ALJ. See Torch Operating Co., 912 S.W.2d at 792; Valdez, 956 S.W.2d at 769. Here, Officer Thompson testified that, when he questioned Kusenberger about what injuries she had, Kusenberger responded, “[m]y legs,” and he did not observe any injury to Kusenberger’s head. Thompson also testified that he smelled intoxicants on Kusenberger’s breath, and that he determined that Kusenberger was intoxicated after conducting the horizontal gaze nystamus test. Likewise, Officer Bjudstadt, the first officer to encounter Kusenberger at the scene of a traffic accident, testified that Kusenberger told him that her legs hurt and that she twice refused treatment by EMS before requesting treatment. Officer Bjudstadt also testified he smelled alcohol on Kusenberger’s breath and that she told him, “I did have a drink.” Although the ALJ erred administratively in memorializing her findings in writing, this evidence supports the reasonableness of the ALJ’s finding that Kusen-berger refused to submit a specimen. Thus, the trial court erred, because instead of determining the reasonableness of the ALJ’s finding, the trial judge determined that the ALJ was incorrect in her finding. The trial court, however, may not substitute its judgment for that of the ALJ on controverted issues of fact in a substantial evidence review. See Torch Operating Co., 912 S.W.2d at 792-93. Because the evidence supports the reasonableness of the ALJ’s order, we reverse the judgment of the trial court and reinstate the ALJ’s order. HARDBERGER, Chief Justice, dissenting opinion. Footnotes [1] See Tex. Trans. Code Ann. § 724.016 (breath); id. § 724.017 (blood).