Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the County Court at Law No. 3 of Cameron County,
Chief Justice Contreras and Justices Longoria and Perkes.
Gregory T. Perkes, Justice.
Texas Department of Public Safety (Department) appeals the
county court's judgment reversing the suspension of
appellee Herminio Pasillas's driver's license
following his arrest for driving while intoxicated (DWI).
See Tex. Penal Code Ann. § 49.04 (West, Westlaw
through 2017 1st C.S.). In what we construe as one issue, the
Department contends that the county court erroneously
reversed the administrative law judge's (ALJ) decision on
the grounds raised by Pasillas. We reverse the county court's
judgment and render judgment reinstating the suspension of
Pasillas's driver's license.
11:11 p.m. on September 10, 2016, Harlingen Police Officer
Arnoldo Maldonado stopped Pasillas for driving a vehicle with
an inoperable taillamp. Officer Maldonado immediately called
for assistance, suspecting Pasillas of DWI. Officer Julio
Garza arrived at 11:12 p.m. and was apprised on the reason
for the stop. Officer Garza observed Pasillas speaking
"in a slurred speech", and he detected a
"moderate odor of alcoholic beverage emitting from
[Pasillas's] breath." Pasillas told Officer Garza he
drank two or three beers around 5 p.m. that evening. Officer
Garza explained and demonstrated the standardized field
sobriety tests, before administering the tests to Pasillas.
Based upon Pasillas's poor performance and Officer
Garza's overall observations, Officer Garza arrested
Pasillas for DWI. At 11:30 p.m., Officer Garza read the
DIC-24 statutory warnings to Pasillas, and Pasillas agreed to
provide a breath sample. At 12:07 a.m., Pasillas's breath
alcohol concentration level was 0.091.
a procedural determination by the Department that Pasillas
was intoxicated while operating a motor vehicle in a public
place, his driver's license was suspended. See
Tex. Transp. Code Ann. § 524.012 (West, Westlaw through
2017 1st C.S.) (providing for the license suspension
process). Pasillas requested an administrative license
revocation (ALR) hearing to contest the suspension of his
driver's license. See id. at § 524.031
(providing for the procedure to contest). During the ALR
hearing, the Department moved to admit several documents into
evidence: (1) a peace officer's sworn report; (2) a
breath test technical supervisor's affidavit; and (3) a
Texas forensic breath alcohol analytical report. All three
documents were admitted, and the latter two documents were
admitted without objection from Pasillas. Pasillas objected
to the officer's sworn report, arguing the report did not
include completed page numbers and was, therefore,
untrustworthy and in violation of Texas Rule of Evidence 803.
testified at the hearing, claiming he was not legally
intoxicated. He stated he last consumed alcohol over five
hours before he was pulled over between 11 p.m. and midnight.
Pasillas also alleged the traffic stop was unduly prolonged
because Officer Garza took approximately forty-five minutes
to arrive to assist Officer Maldonado. Pasillas's
testimony ran contrary to the officer's sworn report,
which provided time stamps for: Officer Maldonado's
traffic stop, Officer Garza's arrival, Officer
Garza's reading of the statutory warnings, and the
made four findings of fact and one conclusion of law. In her
findings of fact, the ALJ determined the officer (1) had
reasonable suspicion to stop Pasillas; (2) had probable cause
to arrest Pasillas for DWI; and (3) had properly advised
Pasillas of the required warnings before asking him to submit
a specimen of his breath. The ALJ also found (4) Pasillas was
"operating a motor vehicle in a public place in Texas
with an alcohol concentration of 0.08 grams or greater of
alcohol per 210 liters of breath." The ALJ concluded the
Department met its burden under the Texas Transportation Code
and suspended Pasillas's license for ninety days.
See Tex. Transp. Code Ann. § 524.035.
appealed to Cameron County Court at Law No. 3. See
Tex. Transp. Code Ann. § 524.041. Pasillas argued three
issues: (1) the ALJ erred in admitting the peace
officer's sworn report, and the ALJ's ruling followed
an "unlawful procedure" under the Texas Government
Code "to the extent that it allow[ed] an affidavit that
refers to unidentifiable attachments"; (2) the ALJ erred
in finding against Pasillas because an extrapolation defense,
although not raised, existed; and (3) the ALJ erred in
admitting the breath test technical supervisor affidavit.
Issues two and three were not argued during the ALR hearing.
The county court reversed, and this appeal followed.
Standard of Review
review the county court's substantial evidence review of
the ALJ's order de novo. See Tex. Dep't of Pub.
Safety v. Struve, 79 S.W.3d 796, 800 (Tex. App.-Corpus
Christi 2002, pet. denied). As a consequence, we
independently review the ALJ's decision under a
substantial evidence standard. See id.; see also Mireles
v. Tex. Dep't of Pub. Safety, 9 S.W.3d 128,
131 (Tex. 1999) (per curiam). Whether substantial evidence
exists to support an ALJ's order is a question of law.
Tex. Dep't of Pub. Safety v. Alford,
209 S.W.3d 101, 103 (Tex. 2006) (per curiam). Courts must
affirm the ALJ findings if there is "more than a mere
scintilla of evidence" to support them. See
R.R. Comm'n of Tex. v. Torch Operating Co.,
912 S.W.2d 790, 792-93 (Tex. 1995) ("Substantial
evidence requires only more than a mere scintilla.");
see also Mireles, 9 S.W.3d at 131. The Texas
Government Code provides the limited parameters for reversal
[A Court] shall reverse or remand the case for further
proceedings if substantial rights of the appellant have been
prejudiced because the administrative findings, inferences,
conclusions, or decisions are: (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 ...