State v. Brabson

Texas, Appellant, The STATE of BRABSON, Appellee.

William Harold

No. 1309-95. Texas, Appeals

Court of Criminal

En Banc.

Feb. 1998.

Rehearing Sept. Denied

Opinion Concurring Denial of

Rehearing Sept. Dallas, Cooper, appellee. Stephen

J. 183 County Dis- Dallas Sandlin, Dal- contended the Atty., Appellee Asst. Michael J. Dist. Austin, collaterally from Paul, Attorney estopped las, Atty., for Matthew State’s trict his for probable of cause litigating the issue State. prosecution because in the criminal arrest adversely to had been decided that issue ON APPELLEE’S PETITION OPINION Safety in the Department of Public Texas FOR DISCRETIONARY REVIEW appel- proceeding to revoke administrative McCORMICK, Presiding Judge, judge agreed trial delivered license. The lee’s driver’s KELLER, appellee’s suppress. of granted the Court which motion to and PRICE, WOMACK, Judges, HOLLAND and Attorney’s County District the Dallas On joined. Appeals, relying of appeal, direct the Court case, In this we must decide whether Safety, Dept. Public on Burrows Texas of County Attorney Dallas District is collateral- 1987, 19, (Tex.App. 20-21 — Dallas estopped litigating at to ly from a motion ruling, and the trial court’s pet.), no reversed hearing prosecution in a criminal suppress estoppel not arise that collateral does held probable appellee’s cause for the issue no proceedings and that from administrative Department arrest when of Public supported trial valid other theories ruling has an adverse on that received sup ruling appellee’s court’s motion prior proceeding issue administrative Brabson, 741, press. State v. See appellee’s revoke driver’s license. We hold 1995). (Tex.App. grant We 745-49 —Dallas Dallas is not petition discretionary review appellee’s ed collaterally estopped litigating from the issue Appeals’ holding on to examine Court probable appellee’s cause for arrest at the one) estoppel (ground the collateral suppression hearing prosecu- in the criminal holding that no other Appeals’ the Court tion. trial rul supported theories court’s valid eventually Appellee arrested for appellee’s suppress ing on motion charged driving with while intoxicated three).1 (grounds two and (DWI). The Texas adopted This has for criminal Safety sought appellee’s to revoke driver’s cases the federal common-law doctrine pursuant an hearing license at administrative 670U-5, estoppel.”2 See 2(f), “administrative collateral Article Section V.A.C.S. However, States Construction United v. Utah judge administrative declined 394, 419-23, Mining Company, 384 U.S. appellee’s to revoke driver’s license. (1966); 1545, 1559-60, L.Ed.2d judge also written administrative made a (Tex. Tarver, 195, parte finding probable Ex police that the lacked cause Dictionary 45 Cr.App.1986); Black’s Law appellee. to arrest (6th ed.1990). states: This doctrine prosecution, appellee In the DWI criminal acting sought suppressed agency have he an evidence which “When administrative illegal judicial disputed capacity a result in a and resolves claimed was seized as of an properly it cause. upon [ultimate] arrest based a lack issues fact before grounds implicate does not of collat- dismiss two and three of 2. This case rule 1. We estoppel as in the Fifth Amend- discretionary improvident- eral "embodied petition for review as guarantee against jeopardy." double ment appellee's petition ly granted. Ground one of Swenson, 436, 445-446, U.S. 90 S.Ct. Ashe discretionary review states: 1195, (1970); Showery v. 25 L.Ed.2d 469 re-affirming Appeals err "Did the Court of (5th Cir.1987). Samaniego, 814 F.2d 203-04 in Burrows v. Texas "em- the rule of collateral Ashe holds (Tex. Safety, 740 S.W.2d guarantee in the Fifth Amendment bodied pre pet.) App. Dallas, the issue jeopardy” may prose- against "bar a later double — component of the collateral separate clusion for a offense where the Govern- cution involving doctrine cannot arise lost earlier ment has an Dixon, hearings proceedings on license revocation facts.” States v. the same United to a on an refusal to submit L.Ed.2d based accused’s Ashe) (1993) (Emphasis Original). (citing blood-alcohol test?” adequate suppression hearing in the criminal which the at the have had opportunity litigate, prosecution.4 the courts have not lawsuit).3 been determined when an issue of ultimate fact has once ment, between [v. (collateral Cr.App.1981)] hesitated to Mining Company[, repose.” 199 S.Ct. State], 623 S.W.2d (Emphasis Supplied); that 1559-60; Tarver, See Utah Construction and estoppel apply same (McCormick, by cannot res 384 U.S. parties a valid and means judicata ^[332] again Dedrick see also 725 S.W.2d in J., at at 337 simply that be 419-23], dissenting) final to enforce litigated future [(Tex. judg 86 at Law “administrative collateral the administrative litigate “State” had for S.W.2d at ties Utah Construction and decide partment of Public County appellee’s called the Treatise, whether the issue. See Ex District addition, assuming 199; an “State,” arrest Section 21:2 Attorney “adequate K. agency issue of Safety was Davis, we would still Mining Company estoppel” test was are the same parte “properly and whether (2d opportunity” Administrative and the Dallas probable ed.1988) (the 725 Tarver, Texas De before” have to cause par having “carefully The first we address is crafted” each detail with appel parties significance). applicable whether in the administrative law case, 6701Í-5, 2(f),5 au proceeding prosecution and the criminal are Article lee’s Section judge make sought the same. The that to revoke thorized administrative (1) only appellee’s findings: probable driver’s in the administra three whether license proceeding Department driving or person cause existed that was tive the Texas such 6701¿-5, Safety. physical vehicle See in actual control of a motor Public Article Section (2) 2(f). intoxicated, Safety place public in a wheth while Attorney placed arrest County person and the Dallas District er the under Therefore, parties. opportunity not the same officer and was an offered principles specimen do the Dallas preclude give provisions under the (3) Act, litigating the refused to County Attorney person District whether such specimen upon request of the probable appellee’s give issue of cause for arrest Mitchell, 1, (Tex.Cr.App.), parte 3. The distinction whether an adminis- Ex between 183, cert. denied, 864, agency acting purely trative is in a administrative 510 U.S. 114 S.Ct. (1993); capacity judicial capacity 841 S.W.2d or in a turns on wheth- L.Ed.2d 142 399, Thomas (the prosecution, "adju- agency performing (Tex.Cr.App.1992) 402-04 the administrative er See, through agent, County Sheriff's e.g., the Smith dicative" functions. Utah Construction material). Co., 421-423, Brady Department, However, Mining failed to disclose & 384 U.S. at apply in determin (example agency acting these cases do not in of administrative ing whether the judicial capacity); Young, 412 A.2d Davis County Attorney 1187, are the same (D.C.1980) (administrative the Dallas District agency estoppel purposes. "parties” for collateral acting judicial capacity in because there was acting anything it was more than no evidence underlying principle of This because the investigative capacity); City Learning Wide an Brady trial to is the "avoidance of an unfair Co., Inc., Center, Inc. v. William C. Smith & Thomas, at 402. accused.” See 1310, (D.C.App.1985)(applicable A.2d stat- underlying the common- principles One of the adjudicative functions on the ad- ute conferred that a law doctrine of collateral Davis, agency); 4 K. Admin- ministrative see also litigate opportunity have an an issue should Treatise, ed.1983). (2d Law 21:2 istrative Section Here, County District ultimate fact. the Dallas this, judge Based administrative Attorney opportunity litigate had no the issue judicial acting capacity. case was in a in the probable appellee’s cause arrest appellee's proceeding to revoke permit- We are not unmindful of this Court’s cases license. It be driver’s ting cannot said agencies enforcement and district attor- hold law to liti- the Dallas effect, are, analy- neys probable for the gate the issue of cause for falling Brady Maryland, suppression hearing sis of claims within in the criminal arrest at the 10 L.Ed.2d 215 results "unfair trial to in an (1963) (Fourteenth Due Process Amendment’s accused.” duty prose- imposes Clause an affirmative on the exculpatory Leg., 5.Repealed Acts 74th ch. disclose to defendant cution to 24(a), September prosecution’s possession). See eff. in the Section evidence Groves, makes sense Our decision this case State v. officer. See underlying pur (Tex.Cr.App.1992). when also considers one exclusionary An exclusion rule. pose anof 2(f), does not au Article Section 67012— a defendant’s ary evidence at rule excludes judge to make thorize the administrative government if obtains trial findings probable cause an issue of con in violation of defendant’s evidence put it notice arrest nor does the “State” on rights. Article statutory stitutional litigated admin that this issue be at the V.A.C.C.P., evi 38.23(a), (providing that no important hearing. This is for col istrative person ques officer other estoppel purposes “by dence or lateral because obtained cause existed that shall admitted tion whether of’ the law violation in appellee operated a motor vehicle while the against the accused on trial evidence question toxicated is a different from wheth case); see also United States criminal probable er cause existed for his arrest. Cf. 3405, Leon, 897, 904-13, 104 S.Ct. 468 U.S. (Tex. 784, Neaves v. 767 786-87 (1984); 3411-15, 677 L.Ed.2d Nix 82 (whether Cr.App.1989) probable to cause be 441-43, Williams, 431, 104 467 S.Ct. U.S. driving lieve the defendant had been while (1984). 81 L.Ed.2d 377 police existed at the the intoxicated time exclusionary rule is to “core” rationale of an requested specimen a blood or breath from seizing police illegally evi deter the from the issue of ultimate fact defendant not an making evidence inadmissible by dence that prosecution driving in the defendant’s Nix, criminal See at defendant’s trial. the intoxicated). while Resolution of the former 441-43, 104 467 S.Ct. at 2508. U.S. necessarily not resolve the lat does question. Cf. The ultimate issues to ter id. exclusionary apply rule does not An in the proceeding be resolved administrative pro an to exclude evidence at administrative suppress hearing in motion in the ceeding person’s a license to revoke driver’s not are the same. primarily “local law enforcement because the Therefore, it cannot be said the issue of already ‘punished’ by official is the exclusion probable appellee’s cause for arrest was of the evidence in the state criminal trial.” judge “properly before” the administrative or Janis, 433, See States United “adequate opportuni- that the “State” had 447-49, 3021, 3029, 3027-35, ty” that litigate issue at administrative (1976). exclusionary L.Ed.2d 1046 Since an Tarver, proceeding. parte See Ex apply pro rule to an does administrative 199; Mining Utah 5.W.2d at Construction & license, ceeding person’s a driver’s to revoke Co., 417-21, at 1558-59 U.S. S.Ct. then was no need for the administra there (findings by agency have no administrative findings legality of judge tive to make on the finality they dispute if not relevant appellee’s arrest.6 agency over which administrative has Finally, suggested has our it been decision jurisdiction). foregoing, Based on in this Court’s this case inconsistent with judge’s finding probable administrative of no Tarver, Neaves, opinions in Groves and preclude cause for arrest does not having latter cases been decided under litigating two the “State” from that issue applicable appellee’s case—Article proceeding. the law provided Legislature expressly note the has We the current law for the administrative note suspension person’s judge of a driver’s license based the determination of the administrative provide person's a breath or on that refusal litigation preclude same or "does Subchapters specimen is blood now contained prosecution.” See similar facts in a criminal , Chapter Transportation C and D of 724 of Code, Transportation Section Texas 1, September Code which became effective on 724.048(a)(3); Savings see also Astoria Federal Leg., Section 1995. See Acts 1, 74th ch. Solimino, U.S. Ass'n v. Loan Legisla- September We eff. note the (1991) (Congress 115 L.Ed.2d 96 expressly ture authorized the administrative has by provide collat- statute common-law judge findings to make on whether "reasonable findings estoppel principles apply do eral stop suspicion probable cause existed to or or judicial agencies acting a administrative Transportation person.” Texas arrest capacity). However, Code, 724.042(1). we also Section 2(f). 6701l-5, However, prior judgment, Section Groves and bound or one of that Eagle require party’s privies. Properties, Neaves did not Ltd. v. Court to decide (Tex.1990). Scharbauer, estoppel principles pre whether collateral question in litigating cluded the One this case is whether “State” at a crimi to, plaintiff or in this case was proceeding nal an ultimate fact to, privity with administrative adversely was decided to the “State” that, I license revocation believe prior proceeding to revoke Groves, because of the fractured nature person’s driver’s license. See government, plaintiffs in the actions two (nothing S.W.2d at 106 in the record indicat privies. neither the same nor were probable ed the issue of cause to arrest previously litigated defendant the ad constitution, present which Our Neaves, proceeding); ministrative adopted in the federal does not follow (since S.W.2d at whether puts power model that all executive in the cause to believe the defendant had been driv president. our hands framers of ing while intoxicated existed at the time the constitution, political phi- influenced police requested specimen a breath or blood losophy of the era and the des- Jacksonian from the defendant was not an issue of “ulti governor, potic control of the reconstruction prose mate” fact in the defendant’s deliberately chose to decentralize executive intoxicated, driving analysis cution for while authority. The constitution created seven specific questions by parties of the raised the department,1 only officers in the executive pretermitted). Any suggestion in was appointed by governor, one of whom is the and Groves Neaves that collateral being by popular the others elected vote. principles apply would in cases like was this separation powers in of This effect creates pure unnecessary dicta and to our ultimate department within the executive itself. A.J. disposition of Thomas, Thomas, those eases. Wynen Ann Jr. & Van “Interpretive Commentary,” IB Vernon’s Our does not conflict with the “nar- the Texas Annotated Constitution State of rowness” this Court’s Tarver. (1997). Tarver, Tarver, See 726 S.W.2d at 200. In same, power parties the Administrative is further decentral- were the the ultimate fact by ized the creation of more than a hundred probation proceeding issue in the revocation independent agencies, practically state all of subsequent and the by which are headed either elected execu- same, the the ultimate fact issue was decided by part-time tives or boards and commis- adversely probation to the “State” sions, independent governor that are of the proceeding, revocation and that fact issue governor if and of each other. Even “properly before” the trial court (with appoints the of a members commission probation revocation id. See approval of the Senate which traditional- judgment affirm the We ly courtesy” respects the rule of “senatorial Appeals. by which allows a nomination to be vetoed district), the senator from the nominee’s MANSFIELD, J., judgment concurs in the usually overlapping serve terms members of the Court. four-year longer governor’s that are than the J., OVERSTREET, dissents. term, gover- makes it difficult for the which majority. (cid:127)nor to achieve control of a And it WOMACK, Judge, concurring. gross is a mistake to assume that even the Although join opinion, I the Court’s I powers agen- commissions wield real in state like to more attention to the would devote cies; by the executive directors chosen privity. commissions tend to the dominant be force al, mutuality agencies. McCleskey The doctrine of now the et Clifton requires party estopped that the is to and Politics who Government (7th 1982). ed., judgment by prior be a who was by 1. One officer—the treasurer —was deleted amendment in 1995. government been so has always privi- Because state agencies

That state are not decentralized, deliberately I believe ty by practice is made of state clear Depart privity between the there is such agencies appear to sue each other and to Safety prosecu of Public local ment opposite only may side of Not lawsuits. against decision tor that the administrative agencies, one Attor- state sue own prosecutor estop the Department would ney may represent both General in a criminal relitigating a fact issue Utility the suit. Public Commission v. Cof- Fritz, 204 Conn. trial. (Tex.1988). er, Cf. State v. (1987) (no depart privity between A.2d 1157 (Tex.1989) Thomas, 217, 222 prosecu protection and of consumer ment (Hecht, J., dissenting: by action “[This a]n Trucchio, tor); People Misc.2d Attorney represented by Gen- (commission (Sup.Ct.1993) 605 N.Y.S.2d 649 eral, agency, against represented state also prosecutor did not er of motor vehicles Attorney General. effect the State sufficiently relationship to be close stand itself, has sued General has purpose of collat considered himself, argued against and each has both O’Rourke, estoppel); eral State v. lost”). won and (1994) (no priv N.C.App. 442 S.E.2d 137 Safety, which ity department of motor vehicles between plaintiff in was the the administrative license prosecutor). proceeding,2 typical example revocation is a by the enact- This is bolstered conclusion independent agency. pur- of an state For that contains what is now ment of the statute case, poses is con- 524.012(e) of the Trans- codified Section Commission, trolled the Public portation Code: comprises ap-

which three citizens who are [for A driver’s license sus- determination pointed governor staggered six- pension]: year appoints terms.3 The Commission a (1) matter; ais civil authority director who has executive in the (2) independent is of and not a bar to Department.4 adjudication of a any matter in issue in an charge arising from the occur- criminal case, plaintiff in this The whom suspension; rence that the basis for to appellee estop seeks the adminis- decision, trative is the of Texas which (3) litigation preclude of the does not authority given prosecute has DWI prosecu- or similar facts in a criminal same indepen- cases to more than three hundred tion. dently prosecutors, elected each of whom authority in

exercises an area of the state no findings This a statement that in clear larger judicial a than district. This model proceedings administrative license revocation only litigation. differs from the federal model collaterally estop not be- prosecuting cause there is no central authori- case apply The statute does not this be- ty,5 prosecutors also of the but because the it became effective after the date cause judicial govern- alleged of in But the statute officers branch of offense this case.7 public policy of ment.6 is valuable a statement it, 012(b) ("depart- prosecutor requests attorney §§ cution. general may provide If 2. See Tex. Trans. Code 524. license), 524.041(d) suspends ("depart- assistance. Tex. Govt.Code ment" § 402.028. may appeal). ment" Const, 5, § 6. See Tex. art. 21. § 3. Govt.Code The Tex. 411.003. governor only in time under the direction of the January Acts 7. effective date 1995. The § emergency. of See Tex. Govt.Code 411.012. R.S., § Leg. The statute 73rd ch. 20. occurred, apply or of- did to actions that seq. §§ et 4. Tex. Govt.Code 411.005 committed, before the effective fenses that were Id., § The case is 18. offense date. August general alleged to have been 5. General of Texas has no committed The authority prose- or a criminal initiate conduct possible MEYERS, would not be if Judge, a constitutional concurring and doctrine of estoppel applied dissenting. these proceedings. legislature did not appellee After charged was arrested and necessary find it policy by facilitate this Driving While Intoxicated and a cause making any accompanying change in the ad- styled “The State of Texas vs. Ha- William ministrative license revocation law or in the Brabson”, rold the Texas of structure government of state to decrease Safety Public attempted to revoke degree privity of Depart- between the so, drivers license. In order to do the ad- ment of prosecu- and the local hearing ministrative court held a in which it tors. considered, among things, ap- other whether pellee proba- had been arrested and whether Judge dissenting opinion Baird’s cites De- appellee ble cause had existed was driv- partment Revenue Montana v. Kurth ing or in actual control of a motor vehicle in a Ranch, public place while intoxicated. Tex. Civ. (1994), L.Ed.2d 767 proposition for the 6701Í-5, Although § Stat. art. the adminis- Supreme Court treats different state appellee trative court found that had been agencies party, as the same and Stennett v. arrested, found, plead- it also “based State, 941 S.W.2d 914 (Tex.Cr.App.1996), as ings, counsel”, arguments evidence and holding that the comptroller state and state requisite probable lack of the Appel- cause. prosecutor are the for double lee’s driver’s license was therefore not re- jeopardy purposes. I am agree unable to voked. that there is consideration of this issue on, in styled Later a cause “The eases; fact, those “party” the word does Brabson”, Texas vs. William Harold appear opinion Supreme Attorney sought Dallas Kurth Ranch or in the prosecute appellee charge on the that he had this Court in Stennett. Neither case had Driving Appellee been While Intoxicated. anything to estoppel, do with collateral suppress moved to evidence he which claims mutuality doctrine estoppel, privity. or illegal was seized as a of his result arrest dissenting opinion also cites the state- upon based a lack cause. so Supreme ment of judgment Court that a doing, he averred that collateral in a lawsuit agency between a and one litigating barred the District from judicata of the United States is res in a probable whether there was cause to arrest lawsuit between the same and another him previ- since that issue had been decided officer of government. the United States ously in the hearing. administrative The Adkins,

Sunshine Anthracite Coal Co. v. agreed granted trial court his motion. (1940). U.S. 84 L.Ed. 1263 appeal On from the the court of privity This is authoritative as to of federal appeals addressed the issue of collateral es- agencies, authority but it has no over the toppel First, ways. in two it relied on Bur question privity among agencies. state As Safety, rows v. Texas above, explained I have the structure of Tex- (Tex.App. — Dallas government markedly is different. This is pet.), proposition no for the that criminal why I believe there is a different answer on estoppel collateral cannot arise from an ad point” in Court’s “crucial Sunshine Coal: suspension proceeding. ministrative license litigation in whether or not the earlier the Alternatively, the court that if held even representative government of the au- had estoppel applied collateral could have to this thority represent to its interests a final case it would not bar a adjudication controversy. of the issue The This, instant cause. because the court of does not have appeals that appellee concluded had not general authority represent such the inter- proven suppression hearing at the that he prosecutors. ests of arrested, Thus, only had been detained. only appeals opined, question court of KELLER, J., joins opinion. this police before trial court was whether the If the trial only justify arrested but detained. suspicion to officer had reasonable detention, had been de- appellee that appellee’s warrantless court concluded arrested, it any litigated at adminis- then different from than would tained rather hearing. es- trative with collateral not have been concerned it before would toppel at all since discretionary granted petition for We this suspicion, dif- reasonable an issue have been grounds. on three first deals review The probable cause which was before ferent from appeals with whether the court of was cor- There can be administrative court. that, Texas, recog- not rect hold we do doubt, therefore, deciding that collat- that in nize the of administrative collateral doctrine precluded re-litigation estoppel eral ad- estoppel in criminal cases. The second that the motion cause issue such probable appeals not the court of dresses whether or im- court granted, trial dismiss had appellee not arrest- erred that ar- accepted appellee that had been plicitly despite explicit finding an the adminis- ed court have But did the trial rested. The trative court that he had been arrested. ar- accept appellee was that choice but upon ground third does touch collateral reflects, if, the adminis- as the record rested estoppel all. answer, explicitly so? The trative court said last dismisses the two course, estoppel only if collateral does grounds improvi discretionary for review as preclude trial court from litigating Therefore, dently granted. only question estoppel the arrest issue. If collateral presented ground for the Court anything doing trial court from barred the one; Burrows, namely, review whether su appellee had accepting that been other than pra, applicable is still the law in this State. found, arrested, court as the administrative page This issue is answered on the second have erred? then could the trial court how states, majority’s opinion citing it where court err when it follows The trial cannot (Tex. Tarver, Ex Parte But, an- only path instead of the law allows. that, contrary anything Crim.App.1986), estoppel alyzing required whether collateral matter, might Burrows have said accept court the administrative trial parties litigated two have issue in an when finding appellee ar- on whether court’s hearing those same rested, its appeals the court of conducted collaterally estopped re-litigating analysis appellee had of whether been own subsequent pro the same issue in a and, that he was arrested from conclusion ceeding. Nothing ground else raised in arrested, col- addressed the trial court’s join portion majori I review one. of the finding on the lateral ty’s opinion. if appeals Even the court of cause issue. majority goes on to further discuss disagrees with the administrative court’s applicability arrested, finding it appellee was cannot elements thereof to the facts in this case. say accept the to that find- trial court erred appeals the But court of has not addressed willing engage in a ing unless it to conver- issues, they these nor are addressed or ar- estoppel as to the sation about collateral discretionary gued petition the either arrest issue. any of or the briefs before this Court. review Thus, appeals court of should have Assuming majority reaches the somehow (1) accepted appellee arrest- ground via two and that these issues for review either ground, the trial court to that I dis- ed discussed whether did mean dismiss affirming estoppel that collateral barred appeals the court of on this erred to hold sent probable or litigating from cause issue ap- This is because the court of it issue. so (2) why the peals’ opinion premise discussed trial court erred entire rests In accept appellee had been arrested. the trial court should not have consid- that estoppel probable deciding discussing the effect collateral ered the cause issue when issue, cause estoppel applied to this either the arrest or whether collateral asked, because, appeals according ap- court of should have case to the court either, litigated had peals, he been prove did whether that appellee parties the previous in the Appellee adminis- for review.1 contends Court of proceeding. trative Appeals Because the court of re-affirming holding erred in appeals sort, Dept nothing did Safety, Burrows v. Texas Public I would they remand the case to them may (Tex.App. so that 20-21 no —Dallas opportunity more, have an to do relied on Bur pet.). so. To do Appeals The Court of majority does, as the rows to hold goes beyond scope estoppel could not of the upon which granted we re- proceeding. arise from an administrative Brabson, (Tex. view.1 State v. 899 S.W.2d 1995). App. — Dallas join I concur opinion the Court’s as to ground for review one but otherwise dissent. issue, dealing impor- When it with this applicability tant to remember of collat-

BAIRD, Judge, dissenting. estoppel depend eral does not on the mere Rather, Swenson, “label” of the Ashe v. 436, 444, In we look to proceeding if determine (1970), was conducted 25 L.Ed.2d 469 Tarver, parte judicial Ex capacity. Supreme said approach we should (Tex.Cr.App.1986), we held: estoppel criminal collateral “with realism and rationality.” majority departs Because the agency ... When is act- reality judgment to affirm the ing judicial capacity in a and resolves dis- Appeals, Court of I must dissent. puted properly issues of fact before it parties adequate which the have had an

I. opportunity litigate, the courts have not First, it must be made clear that the apply judicata ma hesitated to res to enforce jority opinion never grounds repose. addresses the issue, analyzing 3)Under 1. In the collateral the standard that a fact-finder majority proclamation all, makes the bare accept reject part, ‘‘[t]he or or none of a wit- and the Dal- testimony, appeals ness’s did the court of las are not the same basing part err in nonetheless its parties” and therefore collateral does perceived police on the truthfulness of a apply embarrassing here. This statement testimony? officer’s "uncontroverted" unsupportable assumption in its that the district majority ignoring offers no reason for attorney proceeding is a in the criminal grounds majority goes review. so far as issue, matter, proceed- or for that ground to set out the first of review in footnote ing. attorney A district is an elected official. It opinion, one of their but then fails to address it. job attorney represent is the of the district reaching grounds upon Instead of which re- prosecutions. State of Texas in criminal See Tex. granted, view was raises several Const, 21; § art. Tex.Code Crim. Proc. arts. making. issues of its own This is done because 2.01, attorney 2.02. The DPS and the district opinion, Judge the author of the lead McCor- merely agents agencies entity or the same —the mick, Tarver, parte dissented in Ex Thus, slyles State of Texas. the case in both (Tex.Cr.App.1986), along which with properly matters reflect the as the "State Aguilar, (Tex.Cr.App.1997), 947 S.W.2d 257 con- appellee. of Texas” versus See, Therefore, trol the instant case. infra. decisis, Judge avoid stare McCormick avoids the Appellee’s grounds for review state: argument true issue and creates an out of thin 1) appeals re-affirming Did the court of err in greater judicial air. There is no testament to Dept. in Burrows v. Texas Of case, judge activism than when takes a that is (Tex. Safety, law, clearly by prior conjures dictated case App. pet.) That the issue —Dallas up an issue that neither has raised or preclusion component of the collateral es- toppel doctrine cannot arise from adminis- argued. parties appear The who before this Court have hearings pro- trative on license revocation every right to believe their issues will be resolved ceedings based on an accused’s refusal to impartial Making in a fair and manner. deci- submit to a blood-alcohol test? 2) sions in this manner is the sole source of our appeals concluding Did the court of err in credibility. majority When a of this Court reach- that the record the from trial court did not parties, es out to resolve issues not raised the appellee show was arrested where there are advocates, majority partisan the findings justice acts as written from the court that appellee impartial jurists. alleged was arrested on the date Anson v. 959 S.W.2d in (BAIRD police (Tex.Cr.App.1997) the information and a 2 officer testified 208 n. and Overstreet, JJ., appellee? as to he dissenting). when decided to arrest II.

Tarver, (citing, at United Mining Construction and States Utah holds, Initially, majority “[t]he the 421-422, Company, 384 U.S. Safety the Dallas and of Public (1966).). 1545, 1559-1560, 16 L.Ed.2d Attorney the same are not County District also, Groves, holding S.W.2d 103 is based parties.” at 496. This Ante majority (Tex.Cr.App.1992). upon the a confusion which leads es- collateral and civil intertwine criminal Recently, Aguilar, in 947 S.W.2d exposed, one toppel.3 this confusion When (Tex.Cr.App.1997), considered this Court majority’s holding is contra can see that ease, presented the issue in instant authority from this by wealth of dicted a namely license whether an administrative Supreme States Court. and the United es- proceeding can have collateral revocation pro- toppel subsequent in a criminal affect A. Id., ceeding. Aguilar, at 258. In to note that United important It ratio- majority a of the Court followed the separates collateral Supreme Court States and Tarver and an adminis- nale of Ashe held categories, crimi- estoppel into two distinct hearing estoppel collateral trative could have States, v. United nal and civil. Standefer Id., effect on a later criminal U.S. (“Importantly, the collater- (1980). The of collater- doctrine L.Ed.2d 689 through estoppel protection given al effect — law, using the estoppel al has its roots in civil jeopardy appli- have the double clause — determining parties in property right of the proceedings if of under cation even one However, privity. because criminal collater- analysis is labeled ‘civil’ or ‘administra- Jeop- from the Double al emanates ”).2 tive.’ Clause, not on the ardy the focus is sovereign against the defen- but rather the Aguilar clearly and Tarver hold Because attempt- sovereign If not the dant. it were at an the determination a factual issue issues, of crimi- ing relitigate the the roots hearing may used to col- in double nal would not be collateral laterally estop subsequent the State jeopardy. Appeals’ proceeding, the Court provides that no sover- misplaced. jeopardy reliance on Burrows was Conse- Double “subject quently, majority addressing eign person for the same errs can make jeopardy or grounds disavowing put of life and offense be twice review However, 5. holding Const. Amend. in Burrows. limb.” U.S.C.A. appellee’s sought to driv- interesting judges revoke It is to note that three of the Price, Aguilar, comprised proceeding who er's license in the administrative Womack, join opinion lead Safety. Holland and now Department of Public was the Texas Ante, complete opposite. at 496 67011-5, which holds 2(f). The Texas See Article Section ("Therefore, estoppel principles do not collateral the Dallas County Attorney preclude the Dallas District Attorney County are not the same probable litigating the issue of cause for from Therefore, estoppel prin- parties. hearing suppression at the arrest ciples preclude the Dallas do not Indeed, Judge prosecution."). the criminal litigating opinion lead fails to even mention McCormick’s suppression appellee's arrest cause for Judges Aguilar. Yet Price and the existence prosecution. hearing in explanation radical Holland offer no change for their Ante, at 496. Womack, Judge position. And who holding to assist the reader restated opinion, concurring explain does not his offers change see, can ma- evaluation. As reader Certainly position. bench and bar any analysis jority's or rea- is devoid of eight Aguilar was decided but deserve better. concurrence, Judge soning. his Womack yet today ago sub overruled months it is siliento Judge recognizes sparsity McCormick’s any explanation. This is result-oriented without analysis attempts to ride the rescue jurisprudence at its worst! feeling logic. give opinion the lead some to However, analysis majority’s is as follows: Judge also fails to Womack’s is whether the The first we address appreciate between criminal the difference proceeding and in the administrative estoppel. civil prosecution are the same. The the criminal sovereigns by are not powers prosecute barred the Fifth derive their to inde- from seeking Id., amendment from a conviction al- pendent authority.” sources at ready by tried sovereign. another For in- at S.Ct. stance, a federal conviction does not bar a Therefore, in the context of criminal col- conviction, state foreign state conviction estoppel, majority’s logic lateral for the to conviction, does not bar a federal and a state water, hold Safety of Public conviction does not bar another state’s con- (DPS) and the Dallas District Attor- viction. This is the doctrine of “Dual Sover- ney separate would have to be two sover- eignty.” eigns.

B. “The dual C. sovereignty doctrine is founded on the conception common-law of crime as an Both county the DPS and the district and against offense sovereignty gov- attorneys garner prosecutorial strength their Alabama, ernment.” Heath v. 474 U.S. from the Constitution and statutes 87-89, 433, 437, 106 S.Ct. 88 L.Ed.2d 387 Therefore, they Texas.5 are entities (1985). The same conduct can violate the “emanating sovereignty.” from the same and, laws of two distinct sovereigns there- Heath, (1985) 90, 106 474 U.S. at at 438 fore, separate be considered two offenses. Co., (citing, Puerto Rico v. Shell U.S. The “crucial determination is whether the 253, 264, 167, 172, 58 S.Ct. 82 L.Ed. 235 two successively prose- entities that seek (1937)). sovereign As entities of the same cute a defendant for the same course of they power derive their from the same “or conduct separate can be sovereigns.” termed ganic law.” Ibid. Id. Florida, In Waller v. 391— ... This determination turns on whether 25 L.Ed.2d 435 authority two entities draw their (1970), the attempted Florida punish the offender from distinct sources prosecute an individual under State law after Thus, power. uniformly Court has prosecuted he had been for the same conduct held that separate the States are sover- in municipal proceeding. argued Florida eigns respect with to the Federal Govern- subsequent prosecution permissible power ment because prose- each State’s municipality because the and the State were cute is derived from its own “inherent separate sovereigns. The Court considered sovereignty,” not from the Federal Gov- whether two courts within one State could ernment ... The States are no less sover- place a trial same al defendant on for the eign respect with they each other than Id., leged 389-391, crime. 90 S.Ct. at respect are with to the Federal Govern- rejected Supreme this the powers ment. Their to undertake crimi- ory, judicial finding power from each prosecutions nal separate derive entity emanated from the same source. independent power sources and authori- ty originally belonging to them ad- before ... Political subdivisions of States —coun- mission to the preserved Union and ties, cities, or whatever —never were and them the Tenth Amendment. never have sovereign been considered as Id., 88-89, Rather, 106 S.Ct. at 437-438.4 The they entities. have been tradition- Court further ally regarded stated: “In those governmental instances as subordinate where Court has found the dual sover entities created the State to assist in eignty inapplicable, doctrine carrying governmental it has done so out of state prosecuting because the two entities did not functions. emphasis supplied 4. All protecting public safety provide unless otherwise indi- laws cated. prevention for the and detection of crime. The Texas Code of art. Criminal Procedure 2.01 411.002(a) provides: §

5. Government Code provides: attorney represent "Each district shall ” of the State of the State in all criminal cases.... agency Texas is an of the state to enforce the

193 1994). enforcement Id., operating as a law 392, In (citing, Reynolds 90 at 1187 S.Ct. governmen a 1362, performing Sims, 575, DPS is 533, agency, the v. 84 S.Ct. 377 U.S. City University West (1964)). function. Ellis v. tal 1388, Court has 12 L.Ed.2d 506 The of Place, (Tex.Civ.App 178 171 S.W.2d “any power municipality] [the further noted . —Gal 651, Nix, 1943); v. 611 S.W.2d veston Cronen only punish has to define and crimes exists 1980); (Tex.Civ.App. Dist.] [1st 653 power granted by such been the because has — Houston Chambers, and, 883 v. City Lancaster State; power the from the source of derives of Therefore, (Tex.1994). 650, the 658 Wheeler, 435 [its] creation.” United States v. Texas in its State of represents DPS the 313, 322, 1079, 1085, U.S. 55 L.Ed.2d as State of Texas and is treated the actions (1978)(citing v. Beck- 303 Mount Pleasant its defense. 699). with, 514, 524, 100 25 U.S. L.Ed. Indeed, of Public Department the Texas

According sovereign- to the tenets of dual as an Safety statute has established ty, been sovereign power from a each derives Ann. agency this State. Tex. Gov’t Code of Abbate v. different constitutional source. 411.002(a) (Vernon 1990). See, 5, supra. n. § States, 187, 194, 79 United S.Ct. lawsuits, agency of the regard with (1959). And sixty 3 L.Ed.2d 729 Almost equivalent of generally is treated as the State years ago Supreme the United States See, v. Texas Tech itself. Lowe Adkins, State Sunshine Anthracite Coal Co. (Tex.1976); Univ., 297, 298 Texas 540 S.W.2d 60 L.Ed. 1263 U.S. S.Ct. Richardson, Safety v. Department Public (1940),held: of (DPS (Tex.1964) is offi privity ... There is between officers of and, State); Dept. Public of cer Texas of government judgment that a in a so Casselman, Safety party representative suit a and a between (Tex.1967).6 [government] judicata of the is res in relit- igation of the same issue between that E. govern- and another officer of the “collateral Supreme Court held: es- point ment. crucial whether or applied toppel not to in criminal cases is be litigation representative in the earlier approach hypertechnical and archaic with [government] authority rep- of the had book, century pleading but with of 19th adjudication resent its in a final interests Ashe, rationality.” and 397 U.S. at realism controversy. of the issue in requires an 90 S.Ct. at 1194. Ashe Id., 402-403, at 917 U.S. if analysis to see intimate of issue (citations omitted). seeks to issue is the same as defendant prosecution. This in- foreclose from future D. prac- must done in a quiry into the issue clear, abundantly The case law is the Tex and with all the tical work viewed frame (DPS) Department Safety as Public Ibid. circumstances sovereign, Clearly, in and of itself. “parties argu- Department Safety comes under Ashe did address the sovereign ment” is not the umbrella of the State of Texas. because Perez, estoppel. It Dept. is axiomatic Texas Public 905 criminal (Tex.App. in criminal collateral that the same [14th Dist.] S.W.2d 695 —Houston Guevara, 1995); seeking re-litigation. light City Taken in Beverly Hills v. 1994); Waller, supra, (Tex.App. it is clear individual 5.W.2d —Waco Martin, immunize and, Safety v. of the do not Dept. Texas Public entities estoppel. criminal collateral (Tex.App. —Beaumont case, Hearing clear Petition for Administrative filed the instant it could not be more justice Dallas that Attorney the DPS is titled "Texas court represent Brabson,” both the State of Texas. At- Safety v. "Now comes Public it reads: findings A B are the tached exhibits Texas, acting by through the State of James information, justice respectively. court and R. Wilson Director of State of Texas Both documents entitled the See, Safety_” Exhibit C. Brabson, Although William Harold III. vs. .194 (collateral

There is no doubt Supreme estoppel precludes government Court had they this mind when issues); and, handed down Ashe relitigating from United States day. Waller on the same (5th Nelson, Cir.1979) 714, v. 599 F.2d 716 went say: [a]ny on to “... test more techni- (collateral estoppel government forbids the restrictive, cally course, simply would of facts). relitigating certain rejection amount ato of the rule of collateral And, directly point, previ to be we have estoppel Ashe, proceedings ...” ously county held the and a district or DPS 444, 397 U.S. at 90 S.Ct. at 1194. attorney sovereign. Tharp In same Additionally, recognizes this Court crimi- State, (Tex.Cr.App.1996), 935 S.W.2d 157 nal collateral applies to the sover- jeopardy we considered a double claim that eign: suspension driver’s license ... To state the distinction in prosaic more punishment was jeopardy DPS which barred terms, the traditional jeopar- bar of double a criminal prosecution. DWI We reached dy prohibits of the crime argument the merits of the and held there itself, whereas collateral estoppel, in a no jeopardy was bar because a li driver’s fashion, more simply modest forbids suspension punish cense does not constitute government from relitigating certain facts State, Similarly, ment. in Voisinet v. 935 in order to establish the fact of the crime. (Tex.Cr.App.1996), 424 S.W.2d we held the State, (Tex. Dedrick v. 623 S.W.2d 336 providing statute for administrative license Cr.App.1981) Mock, (citing United States v. governing revocation and the statute the of (5th Cir.1979). 604 F.2d 341 Ashe mandates driving fense of while intoxicated defined the only inquires two estop- criminal collateral jeopardy purposes. same offense for double pel: also, Department Revenue Mon First, necessarily what facts were deter- Ranch, 767, 114 tana v. Kurth Second, mined the first law suit? has (1994) (Montana 1937, 128 L.Ed.2d 767 De government subsequent in a trial tried partment sovereign of Revenue relitigate necessarily facts established prosecutor jeopardy as the criminal pur against it in the first trial? and, State, poses.); Stennett v. 941 S.W.2d Id., clear, at 336. Making abundantly it (Texas (Tex.Cr.App.1996) Comptroller of criminal collateral bars the reintro Public Accounts and the Harris Dis relitigation duction or already of fact estab sovereign jeop trict were same Ibid.; also, against lished sovereign. see ardy purposes.). State, Ladner v. 780 S.W.2d Judge concurring opinion Womack offers a (Tex. Swenson, Cr.App.1989) (citing Ashe v. disagreement position. with this Interest- 1194-1196) 397 U.S. at 90 S.Ct. at 443— ingly, only (the support. he cites civil cases for estoppel prohibits doctrine of collateral recognize When forced to that the cases dis- issues); relitigating parte the State from Ex prosecu- cussed above hold the DPS and the Byrd, (Tex.Cr.App.1988) (the sovereign, tor suggests are the same he precluded by thereafter the doc holdings controlling these are not because estoppel); trine of parte collateral Ex Tar ver, “party” the word is not mentioned in these (Tex.Cr.App.1986) S.W.2d (collateral Ante, opinions. Judge 498. What estoppel prevents the Wom- State from Mathes, recognize ack fails to relitigating); every opinion is that parte Ex (collateral necessarily (Tex.Cr.App.1992) many implicit makes estop- holdings. pel precludes example, opinions For relitigating); State from most do not contain State, (Tex.Cr. “jurisdiction.” Judge Neaves v. the word Would Wom- ack, therefore, App.1989) (applying estoppel only argue that because the word issues); litigated Padgett “jurisdiction” where the State opinion, was not in the 55,57 (Tex.Cr.App.1986) jurisdiction?7 court reading lacked A truer Indeed, See, Groves, if the estoppel? and the concurrence are inal collateral correct, Mathes, why (Tex.Cr.App.1992); parte is there not some reference to the S.W.2d 103 Ex addressing issue in (Tex.Cr.App.1992); of our cases crim- 830 S.W.2d 596 Ladner v. Nevertheless, precedent from this there is their hold- cases would reveal that those holds cause issue which ings had not Court could not have been reached we justice court. properly before implicitly prosecutor held the DPS and the State, (Tex.Cr.App. v. Neaves sovereign. were same Had we held oth- the 1989), Legislature required the the we found erwise, not the we would have addressed probable judge administrative determine to the issues of whether the offenses were suspend one’s it was unfair to cause because same, Voisinet, supra, or the driv- whether proba never when there was driver’s license suspension punishment, er’s license was stated: cause to arrest for We ble DWI. Tharp, supra. Because the ema- explanation think of no other ... We can sovereign, nated the we not same did requirement but [probable cause] for this for parties, need to address the issue of nor it would be legislature believed matter, that the sovereignty.8 the that issue dual suspect penalize a D.W.I. who untenable under cir- specimen a refuses to submit F. constitutionally that not cumstances could conclusion, majority it is clear the con- justify arrest that his offense. estoppel fuses criminal and civil collateral Id., 767 S.W.2d 786. ignores in doing so either or fails to Groves, v. Again, in State 837 S.W.2d holdings grasp the from both the cases revocation we held an administrative license Supreme Court and United States this Court estoppel on the have effect can a collateral holding.9 a which dictate different However, we subsequent trial. particular not that ad- could decide whether III. estoppel had collateral hearing ministrative Recognizing absurdity the of the not-the- “nothing in the rec- effect because there was argument, same-party majority the quickly probable ord to that the issue of indicate position that abandons holds issue previ- appellee had been cause arrest probable properly cause was not before (as ously litigated nothing indicating is there agency. justice court there concluded cause), probable an was absence there was First, important it is to remember estoppel litigating no collateral bar appeal State did decision of the (Em- Id., instant cause.” at 106 justice If court. res- State believed the added.).10 phasis olution of the cause issue er- Voisinet, roneous, above, remedy Additionally, that de- as noted appeal See, Ann. the two offense were supra, termination. Tex.Rev.Civ. Stat. this Court held 22(e). But, 6687b, jeopardy purposes. § To art. chose the same for be the and, therefore, offense, majority appeal and the errs in ad- elements argument properly the trier vancing the for the the issues are before both State. State, 552,(1979); and, (Tex.Cr.App.1989); Benson v. Wanda Petro- 780 S.W.2d 247 Sorola L.Ed.2d Co., (Tex.1971). State, (Tex.Cr.App.1989); leum 468 S.W.2d v. 769 S.W.2d 920 Gar State, (Tex.Cr.App.1987); v. cia S.W.2d 726 parte Byrd, (Tex.Cr.App. Ex 752 S.W.2d 559 acquitted Interestingly, is if defendant 1988); Curry Gray, ex rel. v. charge, any suspension underlying DWI license Tarver, (Tex.Cr.App.1987); parte Ex rescinded; effect, is "reverse” collateral (Tex.Cr.App.1986); DPS, Disheroon v. estoppel recognizing the valid- effect State, (Tex.Cr.App.1985); Meeks findings. 687 S.W.2d 332 ity Transp. Tex. of the other court’s State, 1983); (Tex.Cr.App. Ex § Code Ann. 524.015. Robinson, (Tex.Cr.App. parte 641 S.W.2d 552 and, 1982); 623 S.W.2d 332 Dedrick McCormick, Judge opinions who voted for 1981). (Tex.Cr.App. Neaves, them in Groves and now declares to be pure dicta. Ante 497. Such declaration argues 8.Judge judge Womack there is no such mutual- utter nonsense. For a on this Court to prosecutor. ity choosing the DPS and the local his and in between create issues of own resolv- However, require ing opinions does not those to dicta two issues reduce Co., Hosiery height mutuality parties. Inc. which he voted of intellectual dis- Parklane Shore, 645, 650, honesty.

of fact in suspension hearing and the evidentiary ultimate fact and an fact. Proba- subsequent ble cause an issue of ultimate fact in a suppress hearing

motion to and an evidentia- ry fact in a prosecution. DWI Tex.Code IV. Crim. Proc. Ann. art. 38.23. To hold other- Finally, majority holds the issue of complete ignorance wise is to show a of our probable cause is issue of ultimate relating pre-trial hearings, law and our fact. Ante at 496. The fails to jurisprudence. search and seizure recognize the doctrine of collateral is not limited to issues of ultimate fact but V. applies evidentiary facts as well. Dedrick (Tex.Cr.App. has taken leave of its senses 1981); Wingate Wainwright, 464 F.2d in order to rule for the State. Such result- (5th Cir.1972); 212-213 jurisprudence Blackburn v. Cross oriented in all odious re- (5th Cir.1975). 510 F.2d spects and a people disservice to the of Tex- And, probable cause to arrest is both an Accordingly, as. I dissent. A

APPENDIX B

APPENDIX C

APPENDIX parties opportunity DENIAL CONCURRING OPINION TO have had brief “parties” OF APPELLEE’S FOR MOTION issue.

REHEARING. The dissent also revisits the merits of the McCORMICK, disposition original on submission of Presiding Judge, Court’s “parties” Relying solely concurring. issue. on papers caption pleadings and other appellee’s I concur to the denial of motion filed in the civil revocation adminis- license rehearing. separately respond for I write subsequent proceedings trative and the crim- Judge Meyers’ opinion dissenting to the prosecution, inal the dissent claims the De- rehearing denial of motion for Safety partment of and the Dallas (“the dissent”). County Attorney par- District are the same opinion This dissent claims the Court’s on estoppel purposes. ties collateral Howev- original large part submission “rests on its er, respectfully position I submit this exalts present- resolution of an issue” that was “not form over and fails to take into substance ground upon grant- ed as a which review was public policy account the various concerns for Brabson, ed this Court.” See State v. deciding Safety of Public J., (Meyers, dissenting) (op. S.W.2d at 203 on Attorney County the Dallas this, reh’g). denial of Because of the dissent parties not the same for collateral parties opportuni- claims the have not had an purposes in like this. cases ty argue “parties” to brief and issue. Various other courts that have considered respectfully disagree. I grant- This Court “parties” cases like this have not discretionary ed review to whether decide uniformly way one or the other on held given effect should be cites issue. dissent out-of-state cases subsequent findings support holding that would made in a civil license revocation administra- and the Dallas Dis- Brabson, proceeding. See 976 S.W.2d at tive trict are the same for collat- (Baird, J., dissenting) (op. orig. 190 fn 1 on Brabson, estoppel purposes. eral sub’m) (setting ground out verbatim one of J., (Meyers, dissenting) at 204-206 review). appellee’s petition discretionary (op. reh’g). on denial of The dissent also original submission Court’s sup- out-of-state cases that would cites other appropriately questions all of law addresses port contrary holding. See id. “predicate intelligent to an resolution” discretionary granted weight authority on which we There is considerable Sullivan, Cuyler jurisdictions support review. See from other U.S. original 1715 fn. 64 L.Ed.2d submission on the Court’s (1980) (discretionary id.; “parties” 333 review courts must see col- issue. See also eases Annotation, subsidiary questions “predi- address of law lected in Doctrine Res Judica- intelligent ques- cate to an resolution” of the ta Estoppel Barring or Collateral As Relit- upon discretionary igation Proceedings tion which review is in State Criminal Terrazas, 252, granted); Previously 444 Vance v. U.S. Issues Decided in Administrative (1996). 856, 540, 5, Proceedings, 544 fn. 62 L.Ed.2d 461 30 A.L.R.4th 860-64 (1980) (same plus discretionary review courts It cannot be said the Court’s on appropriate original “parties” in issue circumstances address submission on questions presented petition represents minority among of law not for a distinct view review). And, discretionary given jurisdictions the com- the various that have considered estoppel, mon-law elements of collateral the issue.1 addition, accept argument appellee's 1. In were we to issue of cause for arrest in this, estoppel applies that collateral in cases like pro- the civil license revocation administrative then we would also have to decide this doctrine ceeding, appellee relitigate then could not this relitigating precludes defendants from some is- against County Attorney the Dallas District subsequent prosecutions sues in that subsequent prosecution. in the I have adversely prior were adminis- decided to them in yet anyone accept propo- to find who would this proceedings. example, trative For in this case However, why in cases sition. there is no reason Safety won on had the

201 lawyer by a being private represented At least one case has labeled the Court’s “par- proceed- analysis original subsequent in a seeking relitigate on submission of the to being simplistic.” as ad- ties” issue “too See that was ing the same issue resolved Sims, (citing People fn. v. prior pro- A.L.R.4th versely client in a private to the Cal.Rptr. P.2d 321 Cal.3d ceeding represented client was when the (1982)). This, among things, other is another lawyer. a fact issue course when another Of example judiciary, been which it has repre- against private a citizen is resolved now, prone years making a to do some proceeding that by lawyer A in sented simple question complicated than it re- more relitigate cannot private citizen same ally respect is. all due the California With the basis proceeding fact issue in Sims, analysis cases like court represented private citizen is now that the really simple. “parties” question of the lawyer B. simple matter that no fact of the validity position there to While is some one, dissenting opinions even in this that the ease, County claims Dallas District Attor- represent Dallas opportunity litigate proba- ney had an of this is the citizens the same client which ble cause issue in the civil license revocation State, entities should governmental these large This separate nevertheless be considered part dispositive be should the collateral purposes pri- collateral based estoppel question pre- since that doctrine practical public policy consider- marily on relitigation cludes of issues that a has addition, the citizens of this State ations. opportunity litigate. not to had This is does, power, private litigant have no as public policy mention concerns litigation by the course of control into the should factored governmental en- lawyers representing these analysis dissenting opin- which none lawyers governmental tities. These exercise ions in this case do. See 30 A.L.R.4th They do not powers public in the interest. (practical public policy considerations private or particular citizen represent require questions that most such as “reason- private lawyer. private interest as does appropriately able cause to arrest” are more private sit- will not find citizens The reader justice system). addressed the criminal ting as the District Attor- at the same table Finally, the dissent cites Justice Cohen’s representing Depart- ney lawyer or the dissenting opinion Reynolds which Safety. ment of Public thoughtful contains the most most con- And, apply rules sometimes the structive criticism of this Court’s decision lawyers private representing private citizens original “parties” issue. submission on the apply lawyers exercising public do State, Reynolds See 496- powers public in the interest. governmental (Tex.App. [1st Dist.] —Houston example, For it has been held in a somewhat (Cohen, J., pet. history) dissenting). Howev- but context that “when different related er, respectfully disagree I must with Justice government exercising govern- unit of position. Cohen’s subject powers, estoppel.” mental it is claims, a matter Justice Cohen’s dissent Hardman law, state that the (Tex.Cr.App.1981); Dur- see also State v. County Attor- Safety and the Dallas (Tex.1993) (State ham, 63, 860 S.W.2d 67-68 all, ney but are two are not instead sovereign capacity, ordinary liti- in its unlike governmental in the same entities branch estoppel). subject gants, is not to defense of government representing or same claims, as a Cohen’s dissent also Justice people is client which the State law, that the matter of federal constitutional at 497 Reynolds, See Texas. (Dallas holding original submission on the (Cohen, J., on dissenting) Dis- Court’s questionable “parties” a This issue is under Waller lawyer, party). is trict a Florida, 387, 1184, 1188- analogous private client or v. 397 U.S. the same one-way benefitting only criminal defendants. be a street like this collateral should (1970). inapplicable the rehearing and makes discus- 89, Reynolds, See 25 L.Ed.2d (Cohen, J., on dissenting). Judge in Baird’s dissent sion contained 967 S.W.2d at held, constitu- as a matter of federal original Waller submission. law, that a defendant could not under tional comments, I concur to the deni- these With criminally sovereignty”

the “dual doctrine rehearing. appellee’s motion for al of alleged prosecuted twice “for the same in state municipal crime” in a and then a KELLER, J., joins concurring 1186-88, Waller, 90 S.Ct. at court. See opinion. However, application to the Waller has BAIRD, Judge, dissenting to denial original The on case at bar. Court’s rehearing. appellee’s motion for this case does pointed submission out that implicate federal constitutional double submission, namely holding original on principles of collateral jeopardy or the rule patently that the is not the State estoppel as in the Fifth Amend- “embodied Nevertheless, holding garnered absurd. against jeopardy.” guarantee ment double votes, Judge Tom five the fifth of which Brabson, (op. at 183 fn on recognizes Today, Judge Price Price. subm’n). orig. not involve a This case does holding that he absurdity and states of that being crimi- situation where a defendant is joined Judge Mansfield and con- have should nally for the same offense.2 prosecuted twice only judgment. in Post at 206 curred main this case does not This is the reason (Price mo- dissenting to denial implicate Supreme federal double Court’s Therefore, only plural- a rehearing). tion for ‘ jeopardy holding Ashe v. Swenson and Keller, (McCormick, Hol- ity of this Court provide in why Legislature expressly our can JJ.) Womack, land, on favors the current law3 that the determination of However, plurality original submission. preclude judge' “does not the administrative v. with State holding stands direct conflict litigation or similar facts a of the same an adminis- Aguilar, held where Swenson, prosecution.” criminal See Ashe v. (ALR) proceeding revocation trative license 25 L.Ed.2d 397 U.S. 90 S.Ct. later estoppel affect can have collateral (1970) (a prosecu- “successive criminal 257, 259 estop- holding the rule of collateral tion” case (Tex.Cr.App.1997). conflict was made This Amendment pel “embodied the Fifth submission, original Ante at 190 known against jeopardy” bar guarantee double (Baird, J., majority failed dissenting), but the separate prosecution for a a later criminal Aguilar. distinguish, or even cite mention has lost an offense where the Government opinions which This Court should issue involving the earlier law, confuse it. What clarify the facts);4 Ratliff, v. see also State counsel cites judge to do when defense trial (1987) (in cases 744 P.2d Or. suppress motion to Aguilar support of his for a no constitutional basis like this there is argument and the counters State challenge no crimi- jeopardy because double citing ? Brabson consequence imposed as a nal sanctions deny rehearing is to MacLean, only reason proceeding); of the first State my As I noted in (Me.1989); permit the to win. Warfield, 560 A.2d 1088 dissent, is a model of result original this ease (Mo.Ct.App.1993). This Ante, at 191. We jurisprudence. expressed oriented concerns addresses the discussion grant rehearing, our earlier Meyers’ withdraw eight Judge dissent on should page Watts, proceed- more recent decision in U.S. license revocation 2. The (1997) prose- ing proceeding, not a criminal was a civil 136 L.Ed.2d 554 cution. "necessarily reject- (jury cannot be said to have general when it verdict ed” facts returns Brabson, (op. fn 6 on 976 S.W.2d at 185 3. See 460-70, Ashe, guilty). See also not Code, subm’n); orig. Transportation Sec Texas C.J., dissenting). (Burger, 90 S.Ct. 1189 724.048(a)(3). tion lynchpin undermined or The of Ashe has been 4. Supreme by Court’s overruled sub silentio majori- feature, I dissent to the and, dispensable Aguilar, hold consistent with rehearing. ty’s denial of proceeding ALR have that an can collateral n estoppel affect. of this Because majority said: original On submission duty Court fails in its to follow established is whether question The we address first law,

precedent respect and rule of I proceed- parties in the administrative dissent. prosecution are the ing criminal and the sought to revoke party that same. The in the adminis- appellee’s driver’s licence MEYERS, Judge, to denial of dissent Depart- proceeding trative was the Texas appellee’s rehearing. motion for Safety. 6701Z- Article ment Public of majority’s opinion original 2(f). on submis- The The Section Texas of large County Dis- part sion its resolution an rests of and Dallas parties. by appellate Attorney issue not discussed court the same trict Therefore, below, parties estoppel principles do argued by not raised or County preclude the District Dallas or this their briefs before that court before proba- of Attorney litigating the issue Court, presented ground upon and not as a sup- at the appellee’s for arrest ble cause by granted which this review Court. prosecu- pression hearing the criminal Appellee requests rehearing so he tion. argue opportunity have to brief rendering (em-

issue. Before a decision on an Brabson, State consequence, ought added).1 issue of this Court majority provided phasis The no parties opportunity allow the an least authority for its conclusion that the Dallas present persuasive arguments their most and County Attorney Depart- and the authority support respective posi- of their Safety are let “parties,” ment of Public alone State, Whatley pro- tions on the issue. parties.”2 The record “not Cf (Tex.Crim.App.l997)(de- 76 fn. 6 vides some clue. clining to address issue not raised in brief prosecu- in the The information criminal Appeals urged before of and not Court by Name the Authori- tion reads “In the petition discretionary review before this comes ty Texas now the State of of Court); Theus County, Criminal District of Dallas (Tex.Crim.App.l993)(on by of remand Court styled, of The case is State Texas.” Appeals Appeals Criminal to Court of vs Brabson.” “The State Texas William analysis, Appeals required harm Court of Ready for The State’s Announcement of Trial opportunity to afford defendant to file brief Texas reads “Now comes State of ” issue). message It new seems styled above and numbered cause.... The in this taken from the Court’s action case is Brab- transcript trial reads “Wilham Harold longer that there is no real reason for son II The State’s vs State Texas.” argue present briefs before Appeal Notice of reads “The State Texas Perhaps representa- this Court. adversarial gives the Court comes the Court and before longer important an feature tion of our appeal notice of and intent to its desire McJunkins, system. See Ex parte prosecute Court’s ... The State will order (Tex.Crim.App.l997)(majority appeal Designation ...” The this State’s granted Court mandate and State’s Appeals withdrew Record on reads “The State rehearing Designation_” motion for in order address this Des- files State’s items, among in its ignation requests, not raised motion for other “The Texas.” rehearing). that adversarial information filed belief remain, styled remains, process filings or in- in the trial court are ought to Other added, ney emphasis throughout opinion is did realize he was a to the instant All object otherwise indicated. proceeding, unless as he on that did not basis to efforts assert collateral es- pro- to a criminal It would seem toppel, not raise issue before the and he did such ceeding ought party. in fact to know when it is Appeals or before this Court. apparently the But Dallas District Attor- County Attorney “party” III.” is a “The State Texas v. Brabson Dallas District William of Appeals prosecution, Brief rather than The State’s before the Court of to this criminal the as, style Texas, beyond of the reflects the case “The State of was viewed so the State of Brabson, III”, and judge appeals Texas vs William Harold pale by a court of that one begins, “The State Texas comes the expression of he could not restrain his alarm of before support Court and flies this brief in of its holding at the and his refusal to follow it: ...” appeal The State’s Brief on Petition for opinion final basis Brabson The for the Discretionary Review a before this Court has me the is that concerns most. It collateral page showing entitled “List of Parties” the the apply does Texas because following: Safety of the Department Public and Dal- Texas, represented by 1. State Dallas of County Attorney District are not “the las County Assistant District Attor- Criminal parties.” they par- I are not same believe Sandlin, neys Michael J. Kirk Lechtenbur- They parts of ties at all. are different the Bryant. ger, and Scott of executive branch of the State Texas. Brabson, 2. Defendant William Harold opinion an The Brabson states that under- III, by Cooper. represented Stephen J. principle estoppel is lying of collateral body begins, opportunity Brief The of the “Comes now “a should have an Texas, Appellant, through litigate the fact” and the State of of ultimate “the Attorney, County Attorney Criminal and files its had District Dallas District no proba- opportunity litigate Brief....” the issue arrest in the ble cause ad- Original The Petition in proceeding....” ministrative The Dallas proceeding, styled Department while “Texas County Attorney District did not have that Safety vs. William Harold Brabson County opportunity. The Dallas District III,” reads further “Now comes the State of that, lawyer. simply His Texas, acting by through and James R. Wil- client, Texas, party, the State of son, Director of aggressive- it had notice and motive Plaintiff, Safety, Public and flies this its first ly prosecute the ultimate fact in issue of original petition....” The administrative just proceeding, license as it revocation judge’s Findings styled “The Fact are by lawyer, through might do State Texas v. William Harold Brabson County Attorney, Dallas District III.” case_ majority’s [The DWI Appeals’ opinion begins “The The is, ques- least my opinion, Brabson ] county appeals criminal court’s under v. Florida. tionable Waller motion_” granting Brabson’s That Court (Tex. Reynolds v. wrote, “The further State instituted 1998)(Cohen, J., App. [1st Dist.] against No- proceeding Brabson-” [sic] —Houston dissenting). Appeals’ where does the Court of Attorney. mention the District exactly right.3 Justice Of course Cohen is Attorney and The record is saturated with evidence that The Dallas “par- are not of Texas is the real here. proceedings. two The State did not address the record ties” in the The party.4 majority’s holding the Texas is the evidence. submission, constituting original majority pointed parties, there would be different On provision estoppel implica- statute's "that the determi- the current need to address ‘ judge of the administrative does not nation tions. litigation preclude facts in same or similar ” Florida, 387, 90 In Waller v. Brabson, prosecution.' (1970), by 25 L.Ed.2d cited Justice n. 6. Aside from the fact that this statute is at 185 probably above, petitioner charged Cohen unconstitutional, Reynolds, Florida, violating J., city Petersburg, city of St. (Cohen, dissenting), provision guilty He was and sentenced ordinance. found legislature’s illustrate the failure to stands to municipal attorney court. State of Florida later position assume the district brought par- prosecution, department public safety a criminal based are different gave legislature entities as conduct that to the action ties. If the viewed the two rise

205 purposes of party” majority proceedings the “same Although the does not cite holding the authority for its is State court The California estoppel? collateral here, the other courts have addressed the is real of California concluded “the State Zapata Department v. this issue.5 In of 2 proceedings.” Id. party in in both interest Vehicles, 108, Cal.App.4th 2 2 Motor Cal. emphasized Cal.Rptr.2d The court at 858. (4th Div.1991), Rptr.2d the court ad- 855 state, the agencies represent both that “both by virtually the dressed same asked protecting pub- the the interest of have same prosecut- the in this case: was the influence, the under lic from those who drive ing attorney prosecution in the criminal and proceedings in an effort to and both initiate entity the in the motor vehicle revocation authority city. powers by petitioner alleged same jeopardy their under and The double of government States." reject of the United action. The state barred the State’s court —that 394, (quoting claim, v. Id. at 90 S.Ct. 1184 holding ed petitioner’s he could Grafton 749, States, United 206 U.S. again municipal be tried in court and in state Likewise, (1907)). L.Ed. 1084 Attor- Supreme court for the same conduct. The Court ney and the “exert granted power cert to address "the asserted of by authority powers all their under and place petition within one State to two courts government Texas].” of the [State same —that alleged er on the same Id. at trial for crime." governmental instrumen- Both are "subordinate argued State 90 S.Ct. 1184. The that the carry- in the by the State to assist talities created regarded municipality and the state should be ing governmental functions.” Id. out of state separate sovereigns. Supreme The Court disa greed: appear with view 5. Some courts consistent counties, expressed opinion. v. United States ITT "Political subdivisions of this cit- States— Cir.l980)(relation ies, (9th Rayonier, 627 F.2d 996 or whatever—never were and never have Rather, ship Environmental Protection sovereign between federal been considered as entities. Agency Washington and State of they traditionally regarded have been as subor- Ecology sufficiently EPA was close that col governmental dinate instrumentalities created laterally litigating estopped issue in from federal carrying State to assist out state already been enforcement action that had decid governmental provi- ... [Certain] functions." action); ed in state United ex enforcement States sions of the Florida Constitution demonstrate (2nd DiGiangiemo Regan, rel. v. 528 F.2d judicial power try petitioner that the on the Cir.l975)(recognizing that doctrine collateral charges municipal springs first court from estoppel applicable prosecution state organic law that created state court of pros suppressed bar in another state evidence general jurisdiction petitioner in which was tried ecution, applicable holding but doctrine not felony. Accordingly, apt and convicted for a case because defendant failed to move for analogy relationship municipal to the between suppression proceeding); United in second States governments and state is to in the found Evans, F.Supp. (E.D.La.l987)(holding v. relationship government between the of a Terri- government collaterally estopped re-litigat from tory the Government of the and Unites States. ing admissibility previously of evidence decided legal consequence relationship of that govern by another court in case which federal ..., settled v. in Grafton United States where this dismiss). ment chose Others have held to the in a held that court of the Rotter, contrary. See State v. subsequent prosecu- United States is a bar to a W.D.1997)(holding, (Mo.App. estop- for collateral court, tion in a territorial since both are arms of pel purposes, relationship exists between de sovereign. the same termination criminal case and determi of fact in 392-94, (quoting part Id. at 90 S.Ct. 1184 proceeding); nation of in administrative fact Sims, Reynolds Stearns, Vt. 617 A.2d 140 (1964)). distinguished L.Ed.2d 506 The Court (1992)(nature suspension proceeding civil relationship territory between a the fed- and oppor and such that State does not have full fair government relationship eral between Ratliff, tunity litigate); 304 Or. government: state and the federal (1987)(no application 744 P.2d basis for government "The of a state does derive its suspension proceedings where States, powers from the United while the Gov- expedited were and informal in contrast crimi Philippines of the owes existence ernment its proceedings). consistency among lack of nal States, wholly judicial to the United and its jurisdictions all the more reason for the powers authority tribunals exert their of the briefing argument majority to entertain States.... So that the United cases highest this issue. It is unfathomable that the acts committed in that the same a state appellate state court for criminal cases would against an offense Union constitute conflicting decide an issue on which there authority, ment, briefing also a calling argu United States and distinct offense without state, here, against apply citing any authority support do not where the without holding. two that tried the accused exert all tribunals PRICE, dissenting to Judge, obtain deter Id. denial sanctions to such conduct.” rehearing. appellee’s for motion at 859. appellee’s mo- I dissent from the denial light questions to mind in Some final come rehearing. previously Because for I tion holding majority’s original the on submis- joined opinion original on the Court’s submis- Attorney, sion. Since the individual District sion, explain my I separately write reasons Texas, rather now the than the State believing grant appellee’s for that we should recognized proceeding, to a rehearing. motion for does impact how this federal writs of habeas retrospect, have shown I should been in corpus repre- the State of Texas is which was) (as only Judge concurring as Mansfield by Pur- Attorney sented the Texas General? submission, judgment. original the in the On majority’s original holding suant on clearly was correct. outcome Brabson submission, Attorney is, be a good General would That there at least two reasons were Attorney was for that the District “party” different to the than the Dis- action collaterally relitigating the estopped from not Thus, Attorney Attorney. trict will Gen- arrest, probable for even issue of cause findings compelled eral now to obtain new be though Department of Public had court, rely a on which to in federal since it is ruling this previously received an adverse on Attorney? different than District prior issue a administrative license same jeopardy implications And what as to First, controlling revocation second for the criminal ac- same not authorize the administrative statute did tivity by Attorney? District Given a second finding judge probable law make on Attorney “party” that the to a District is a cause; that such unautho- it then follows proceeding, it is that conceivable finding preclude relitigation rized should attorneys from counties two district different State, of the issue. Brabson v. 976 S.W.2d prosecute could both for trans- one criminal 182, (Tex.Crim.App.1998); also see lines, jurisdictional in two action crossed (Tex. State, 493, 496 Reynolds v. 967 S.W.2d separate actions. See tex. (Co- filed) 1998,pet. crim. PROC. Code App.-Houston [1st Dist.] (where property Also, art. 13.08 stolen one coun- hen, J., the issue dissenting). because ty another, by and offender was not an ulti- taken offender cause for arrest law mate fact the administrative prosecuted county before or either preclude judge, finding relit- such did filed); county security agreement where cf Brabson, at igation of the 976 S.W.2d issue. (Tex.App.— Jones 945 S.W.2d 852 185; at 497 Reynolds, also 967 S.W.2d see 1997)(addressing multiple Waco venue (Cohen, J., dissenting). general 13.08 venue counties under article or However, reflection, I now be- 13.18), some after pet. provision granted. in article proposition lieve Court’s opinion ought This Court to withdraw its Attorney of Public and the Safe- submission, original grant rehearing, and (Brabson, ty are not briefing argument order on the 184) problematic, and highly at “parties.”6 I dissent denial of unnecessary to the important, completely equally rehearing. a resolution of the matter.1 maintain, original appellate Already, as intermediate I I-did on several of our continue just authority for submission, courts have cited majority's origi- Brabson Montgomery, proposition. this See State wrong to issue nal address such submission 872, (Tex.App.-Corpus Christi all, beyond on which as went far the issue it Richards, 1998, h.); pet. parte 968 S.W.2d no Ex granted and addressed issues not we review pet. (Tex.App.-Corpus Christi no 194—95 Ap- by the Court of raised before or addressed h.); Anderson, Doing beyond scope peals. of our so h.); pet. (Tex.App.-San Yates, parte no Ex Antonio going on a review. if the Court is to write But (Tex.App.-San 744 n. 1 n legal addressed controversial Keeler, h.); parte pet. Ex No. Antonio no petition before court or in the and briefs 04-97-00812-CR, below *1 n. 1 1998 WL Court, argu- h.) ought briefing pet. to call (Tex.App.-San July it Antonio (not designated parte publication); Ex parties. ment opinion. original our scope of holding and already been has I not belabor what will keeping with the would be action Such pointed out —the flaws adequately more than judicial self-restraint. tradition of that the District argument Safety are not reasons, I dissent foregoing For the act- Clearly, as each was parties.2 the same rehearing. motion for denial of solely agent representative or ing as an Texas, it was the State of the State of party in interest each

who was the real understood, it is Once of Texas is the same

obvious that the State is no

party as the State of Texas. This understanding when there than

different repre- attorneys acting

are two different client, parties in inter- the same the real

sent (the client) the same.

est AND PARDONS BOARD OF TEXAS “parties” argues The concurrence Relators, PAROLES, al., et sound, primarily argument of Brabson public policy i.e., issues such as the basis of — ad- “probable cause to arrest” are better WILLIAMS, Mary Pearl The Honorable justice system. in the criminal dressed Presiding Judge, District Court 53rd ante, However, proves at 201.3 too County, Respondent. of Travis much, ailment. for the cure does not fit the is, justification would better That such No. 73053. support position that in situations such as case, the doctrine of collateral the instant Texas, Appeals of of Criminal simply not used as a bar to will En Banc. relitigation types of these of issues. Such principle far more sound than the bare and April illogical that the of Texas is assertion Texas; it

not the same as the State of limiting

also has the additional benefit case, instant

itself to situations such as the Schonemann, Sauer, threatening problems in D. to cause Kurt M. Raould Austin, Levin, areas, Meyer’s for relators. Judge Maurie A. different but related as well, points out so ante at 206-207. dissent Atty. Griffey, Asst. Margaret Portman above, course, Austin, I have noted Finally, Paul, Gen., Atty., for Matthew State’s very for the two sound reasons there were the State. original in this case on sub-

result reached Thus, even have we need never

mission. Therefore, I “parties”

reached the issues. grant appel- imperative that we it is

believe rehearing, narrow for in order to

lee’s motion 04-97-01028-CR, Abrams, Judge Meyer’s dissent to the denial 2. See 1998 WL No. 203-206; 29, 1998, rehearing, appellee's Brabson, ante at July motion for (Tex.App.-San *1 Antonio n. J., (Baird, dis- S.W.2d at 202-203 h.) (not designated publication); pet. for Ex no (Cohen, senting); Reynolds, 04-97-00976-CR, 967 S.W.2d at Ozuna, WL parte No. J., dissenting). (Tex.App.-San April at *2 n. 1 Antonio h.) 22, 1998, (not designated publica- pet. for no 05-98-00070-CR, tion); “public policy" justifica- parte Biddy, No. It is notable that this Ex argument "parties" was never made (Tex.App.Dallas March at *2 tion 1998 WL (or h.) origi- (not implied) designated publica- in the Court’s pet. even Brabson, at 184. tion). nal submission. See

Case Details

Case Name: State v. Brabson

Court Name: Court of Criminal Appeals of Texas

Date Published: Sep 30, 1998

Citation: 976 S.W.2d 182

Docket Number: 1309-95

Court Abbreviation: Tex. Crim. App.