TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Billy Bernice STORY, Appellee.
No. 10-97-258-CV.
Court of Appeals of Texas, Waco.
July 9, 2003.
The judgment is affirmed.
Tom Gray, J., concurred in judgment and filed opinion.
Pat Beard, Beard & Kultgen, Waco, for Appellee.
Before Chief Justice DAVIS, Justice VANCE and Justice GRAY.
OPINION
REX D. DAVIS, Chief Justice.
This appeal requires us to balance the State‘s legitimate interest in regulating driver‘s licenses with the right of a licensed driver to a meaningful review of an administrative suspension of his license. We must balance these competing interests with regard to a videotape considered by the administrative law judge (the “ALJ“) who sustained the suspension of
ISSUES PRESENTED
DPS presents four issues on appeal:
- whether a court reviewing an administrative decision may reverse and render in favor of the party seeking review on a basis other than reflected in the administrative record;
- whether Story waived his due process claim by failing to attempt to correct the administrative record filed with the reviewing court;
- whether Story even has “a theoretically valid due process argument” because the administrative record filed with the reviewing court contains substantial evidence supporting the ALJ‘s decision notwithstanding a missing videotape; and
- what action should the reviewing court have taken in response to Story‘s refusal to stipulate to the authenticity of a copy of the missing videotape.
FACTUAL BACKGROUND
Officers with the Woodway Public Safety Department arrested Story for DWI on January 1, 1997.1 After an officer provided Story the required DWI statutory warnings, Story refused to provide a specimen of his breath for analysis to determine the alcohol concentration in his body.2 DPS suspended Story‘s license for ninety days because of his refusal to provide a breath specimen.3 Story requested an administrative hearing on the suspension, which was held on February 18.4 At the conclusion of the hearing, the ALJ made findings favorable to DPS and entered an order sustaining the suspension of Story‘s license.5
That same day, Story filed a petition seeking judicial review of the administrative decision in the County Court at Law. See
On May 7, the reviewing court granted the Department of Public Safety (“DPS“) a continuance for two weeks to enable it to attempt to locate the missing exhibit. DPS could not locate the videotape but appeared at the next hearing with a copy of the missing videotape, which it had obtained from the arresting agency. Story would not agree to stipulate to the substitution of this copy for the videotape which had been lost. He asked the reviewing court to reverse the administrative decision and render judgment that his license be restored because of the lost evidence. On May 22, the reviewing court granted Story the relief requested, reversing the administrative decision and rendering judgment in his favor.
On original submission, we dismissed DPS‘s appeal for want of jurisdiction. Tex. Dept. of Pub. Safety v. Story, 65 S.W.3d 675 (Tex.App.-Waco 1999). The Supreme Court vacated our decision and remanded this case for further proceedings in light of its decision in Texas Department of Public Safety v. Barlow. Tex. Dept. of Pub. Safety v. Story, 51 S.W.3d 296, 296 (Tex.2001) (citing Barlow, 48 S.W.3d 174 (Tex.2001)).6
APPLICABLE LAW
A driver‘s license is a privilege, not a right. Tex. Dept. of Pub. Safety v. Schaejbe, 687 S.W.2d 727, 728 (Tex.1985); Tex. Dept. of Pub. Safety v. Monroe, 983 S.W.2d 52, 56 (Tex.App.-Houston [14th Dist.] 1998, no pet.); Ex parte Tharp, 912 S.W.2d 887, 890 (Tex.App.-Fort Worth 1995), aff‘d, 935 S.W.2d 157 (Tex.Crim. App.1996). The State has a legitimate interest in regulating driver‘s licenses to maintain public safety. See Mireles v. Tex. Dept. of Pub. Safety, 9 S.W.3d 128, 130 (Tex.1999); Tex. Dept. of Pub. Safety v. Richardson, 384 S.W.2d 128, 132 (Tex. 1964); Tharp, 912 S.W.2d at 891; Raitano v. Tex. Dept. of Pub. Safety, 860 S.W.2d 549, 551 (Tex.App.-Houston [1st Dist.] 1993, writ denied).
The right to appeal a license suspension does not even exist absent statutory authorization. Schaejbe, 687 S.W.2d at 728; Monroe, 983 S.W.2d at 56; Tharp, 912 S.W.2d at 890. Because there is a statutorily-provided appeal of license suspensions however, such procedures must comply with the due process requirements of the United States Constitution. Monroe, 983 S.W.2d at 56; Tharp, 912 S.W.2d at 890; Nebes v. State, 743 S.W.2d 729, 730 (Tex.App.-Houston [1st Dist.] 1987, no pet.); see also Evitts v. Lucey, 469 U.S. 387, 401, 105 S.Ct. 830, 839, 83 L.Ed.2d 821, 833 (1985) (“[W]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution—and, in particular, in accord with the Due Process Clause.“); In re E.L.Y., 69 S.W.3d 838, 841 (Tex.App.-Waco 2002, order, no pet.) (same).
Procedural due process requires that the State provide a person a “meaningful opportunity to be heard” when depriving him of a constitutionally-protected interest. LaChance v. Erickson, 522 U.S. 262, 266, 118 S.Ct. 753, 756, 139 L.Ed.2d 695, 700 (1998); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 939 (Tex.1998); see also
Section 724.047 of the Transportation Code provides that a party may seek judicial review (i.e., “an appeal“) of an administrative hearing suspending a driver‘s license for failure to provide a breath specimen.
Generally, the reviewing court is limited to the administrative record and cannot consider additional testimony.
A reviewing court may also “go beyond the agency record” and consider evidence of procedural irregularities which allegedly occurred before the ALJ and are not reflected by the administrative record. See Tex. Water Commn. v. Dellana, 849 S.W.2d 808, 810 (Tex.1993) (orig. proceeding); Sw. Bell Tel. Co., 13 S.W.3d at 844;
The reviewing court must: 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 a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
According to section 2001.174(2), if the reviewing court finds any of the six categories of “error” listed and determines that such error prejudiced the “substantial rights” of the party seeking review, the court must “reverse or remand the case for further proceedings.”
STANDARD OF REVIEW IN THIS COURT
In an appeal of an administrative determination, this Court generally conducts a de novo substantial evidence review. Tex. Dept. of Pub. Safety v. Jackson, 76 S.W.3d 103, 106 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Tex. Dept. of Pub. Safety v. Fecci, 989 S.W.2d 135, 139 (Tex.App.-San Antonio 1999, pet. denied). However, we review the lower court‘s procedural rulings for an abuse of discretion. See Sw. Bell Tel. Co., 13 S.W.3d at 844; Buttes Resources Co. v. R.R. Commn. of Tex., 732 S.W.2d 675, 680 (Tex.App.-Houston [14th Dist.] 1987, writ ref‘d n.r.e.).
REVERSAL WITHOUT A RECORD
DPS‘s first issue questions whether a court reviewing an administrative decision may reverse and render judgment in favor of the party seeking review on a basis other than reflected in the administrative record. Specifically, DPS argues that “an incomplete record does not, and cannot, result in a reviewing court rendering [judgment] in favor of an appellant from an administrative decision.”
Story suggests that the incomplete administrative record filed in his case by SOAH constitutes an “other error of law” which warrants reversal and rendition by the reviewing court.
Subcategories (A) through (C), (E), and (F) of section 2001.174(2) all contemplate errors which occurred before the ALJ and which are reflected by the record.
When we excise from the statute the subcategories not implicated here, it reads, “[A] court ... shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative ... decision[is] ... affected by other error of law....”
The parties agree that the reviewing court in this case based its decision on an event which occurred after the ALJ rendered her decision. As noted, subcategory (D) encompasses events occurring after rendition of the ALJ‘s decision. The question remains, however, whether the reviewing court was authorized to render judgment in Story‘s favor based on the incomplete record.
WHAT SHOULD THE REVIEWING COURT HAVE DONE
DPS asks in its third issue whether due process requires that a complete record be
AFFIRMANCE ON LIMITED RECORD
As noted, due process requires that a party in a reviewing court have a “meaningful” and “fair opportunity to challenge the accuracy and legal validity of the [ALJ‘s decision].” LaChance, 522 U.S. at 266, 118 S.Ct. at 756, 139 L.Ed.2d at 700; McKesson Corp., 496 U.S. at 39, 110 S.Ct. at 2251, 110 L.Ed.2d at 37; accord Mayhew, 964 S.W.2d at 939. DPS contends that Story‘s due process rights are satisfied in this case because he is entitled to no more than a substantial evidence review and substantial evidence exists in the administrative record (without the videotape) to support the ALJ‘s decision.
If reversal of an ALJ‘s decision is not required for one of the reasons listed in section 2001.174(2), a reviewing court must affirm the decision if it is supported by “substantial evidence.” See
The substantial evidence standard bears some resemblance to the traditional no-evidence standard of review. Compare Dozier, 41 S.W.3d at 309 & n. 4; Mireles v. Tex. Dept. of Pub. Safety, 993 S.W.2d 426, 428 (Tex.App.-San Antonio), aff‘d 9 S.W.3d 128 (Tex.1999); with Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997) (appellate court must sustain no evidence point if “the evidence offered to prove a vital fact is no more than a mere scintilla“).
As the Fourteenth Court of Appeals observed in Dozier:
Whether Dozier‘s point is evidentiary or an issue of statutory construction matters little because the de novo substantial evidence review is simply the evidentiary test for the general “arbitrary, capricious, or unreasonable” abuse of discretion standard. Gerst v. Nixon, 411 S.W.2d 350, 354 (Tex.1966). This test avoids determining what evidence was actually before the agency because courts are more concerned with whether the legal effect of the hearing is correct than the wisdom of the informal methods employed. More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Thus, instead of deciding issues of fact, the reviewing court determines whether enough evidence existed to enable someone of reasonable mind to reach the conclusion the agency reached.
Deciding a case on conflicting evidence is not intrinsically an abuse of discretion. Factual determinations so clearly against the great weight and preponderance of the evidence that they are “clearly wrong and unjust,” however,
can be a contributing factor in assessing non-evidentiary abuses of discretion. “[I]nstances may arise in which the agency‘s action is supported by substantial evidence, but is arbitrary and capricious nonetheless.” Tex. Health Facilities Commn. v. Charter Medical-Dallas, Inc., 665 S.W.2d 446, 454 (Tex.1984).
Dozier, 41 S.W.3d at 309 n. 4 (some citations omitted).
We agree that the no-evidence standard can be “a contributing factor” when a reviewing court considers an administrative decision. Id.
Assuming without deciding that the testimony in the administrative record supports the ALJ‘s decision, it is at least conceivable that the missing videotape might “conclusively establish[ ] the opposite of the [testimony].” See Merrell Dow Pharms., 953 S.W.2d at 711 (citing Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L.REV. 361, 363 (1960)). At a minimum, the reviewing court ought to have the opportunity to consider the videotape as “a contributing factor in assessing [whether the ALJ committed a] non-evidentiary abuse[] of discretion” or to determine that the ALJ‘s decision “is supported by substantial evidence, but is arbitrary and capricious nonetheless.” See Dozier, 41 S.W.3d at 309 n. 4.
For this reason, we hold that Story‘s due process right to a “meaningful” review entitles him to have the complete record filed in the reviewing court even though the portion of the administrative record already on file arguably contains “substantial evidence” supporting the ALJ‘s determination.
RENDITION BASED ON MISSING EXHIBIT
Although we have determined that a reviewing court may not affirm an administrative decision when an exhibit is missing from the record, we similarly conclude that a reviewing court may not reverse the administrative decision and render judgment in favor of the party seeking review because of a missing exhibit, at least not under the facts of this case.12
The State (through DPS) has a legitimate interest in regulating driver‘s licenses to maintain public safety. See Mireles, 9 S.W.3d at 130; Richardson, 384 S.W.2d at 132; Tharp, 912 S.W.2d at 891; Raitano, 860 S.W.2d at 551. To preserve this interest, we hold that a reviewing court may not reverse an ALJ‘s decision in favor of DPS and render judgment for a driver when SOAH has lost a portion of the administrative record.
CORRECTION OF ADMINISTRATIVE RECORD
Neither party bears the burden of initially furnishing the administrative record to the reviewing court. Rather, upon timely request and payment of necessary fees by the party seeking review, SOAH has this responsibility. See Tex. Dept. of Pub. Safety v. Valdez, 956 S.W.2d 767, 770 (Tex.App.-San Antonio 1997, no pet.); 19 Tex. Reg. 10221 (1994), amended by 22 Tex. Reg. 8943 (1997) (current version at
The parties suggest that SOAH acts much as a court reporter in preparing the record. Thus, they look to the provisions of former appellate rule 50(e) which provides that an appellant is entitled to a new trial in certain cases if an original exhibit has been lost. See TEX.R.APP. P. 50(e), 707-708 S.W.2d (Tex. Cases) lxii (Tex.1986, amended 1997).13 We agree that SOAH and a court reporter perform similar functions in preparing their respective records. However, rule 50(e) applies only to court reporters, not SOAH. Thus, we decline to apply its provisions to Story‘s case.
Instead, we look to the common law regarding appellate procedure as it existed before the promulgation of the Rules of Appellate Procedure in 1986. According to the common law, “if an appellant exercises due diligence and through no fault of his own is unable to obtain a proper record of the evidence introduced, this may require a new trial where his right to have the case reviewed on appeal can be preserved in no other way.” Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex.1978) (quoting Robinson v. Robinson, 487 S.W.2d 713, 715 (Tex.1972)); accord Hoyt v. INA of Tex., 752 S.W.2d 628, 629 (Tex.App.-Waco 1988, writ denied); Bertsch & Co. v. Spells, 687 S.W.2d 826, 827 (Tex.App.-Eastland 1985, writ ref‘d n.r.e.).
[T]his measure imposes a hardship upon the parties, who must retry an often long and complicated case. Moreover, it nullifies the time and effort of the court. For this reason, a new trial should be granted only where it appears that no other action will adequately protect the right of the appellant to review by the court of appeals.
Wolters v. Wright, 623 S.W.2d 301, 305-06 (Tex.1981); accord Houston Lighting & Power Co. v. Klein Indep. Sch. Dist., 739 S.W.2d 508, 520 (Tex.App.-Houston [14th Dist.] 1987, writ denied).
Section 2001.175(b) provides:
After service of the petition on a state agency 14 and within the time permitted for filing an answer or within additional time allowed by the court, the agency shall send to the reviewing court the original or a certified copy of the entire record of the proceeding under review. The record shall be filed with the clerk of the court. The record may be shortened by stipulation of all parties to the review proceedings. The court may assess additional costs against a party who unreasonably refuses to stipulate to limit the record, unless the party is subject to a rule adopted under Section 2001.177 requiring payment of all costs of record preparation. The court may require or permit later corrections or additions to the record.
In construing a civil statute, we may consider the “consequences of a particular construction” of the statute.
As we have held, a party seeking review of an adverse administrative determination does not receive a “meaningful” appeal if the reviewing court affirms the challenged decision without the “entire record” as contemplated by Section 2001.175(b), at least when the parties have not stipulated to a “shortened record.” Thus, we hold that the power of a reviewing court to permit or require corrections to an administrative record under section 2001.175(b) extends to all administrative records filed with the clerk of that court under section 2001.175.
As the party seeking review of the ALJ‘s decision, Story had the burden of offering the administrative record in evidence as an exhibit. See
When such a defect is brought to the attention of the reviewing court, the statute allows the reviewing court to attempt to correct the record. See
Here, the reviewing court must determine whether the copy of the videotape which DPS brought to the May 21 hearing is an accurate reproduction of the videotape which DPS had offered in evidence at the administrative hearing and which SOAH subsequently lost. If the court determines the copy is an accurate reproduction, the court should allow DPS to correct the record by supplementing it with the copy.
On the other hand, if the reviewing court determines the copy of the videotape is not an accurate reproduction and no accurate reproduction can be produced, the court must remand the proceedings for a new hearing before the ALJ because of this “other error of law.” See
CONCLUSION
For the foregoing reasons, the County Court at Law erred when it reversed the ALJ‘s decision and rendered judgment in favor of Story. Accordingly, we reverse the judgment and remand this cause to the reviewing court for further proceedings consistent with this opinion.
Justice GRAY concurring.
TOM GRAY, Justice, concurring.
In this case the county court at law, acting in an appellate capacity by reviewing the decision of an administrative law judge, reversed and rendered the ALJ‘s decision to suspend Story‘s drivers license. The decision to render judgment in favor of Story was because an exhibit considered by the ALJ had been lost and therefore the administrative record was incomplete. When you cut through everything in the Department‘s brief and boil it down to the real issue, the issue we must decide is: Did the county court at law, reviewing a judgment of an ALJ to determine if that judgment was supported by substantial evidence, err in determining that due process required that the review be conducted only of a complete record of the proceeding before the ALJ without allowing or requiring correction of that record for a lost exhibit? The answer to this question is: Yes.
A substantial evidence review has never been conducted in this case. Story is entitled to such a review. The Department wants us to conduct that review on the record that they acknowledge was never admitted into evidence before the county court at law. The substantial evidence review of the ALJ‘s judgment should be conducted by the county court at law before an appeal to the court of appeals. As much as the Department wants the issues in this appeal to be about the effect of the presence or absence of an exhibit that was before the ALJ but not included in the record available for filing before the county court at law, whose burden it is to get that exhibit before the county court at law, whose burden it is correct the administrative record for a lost exhibit, and how should the record be corrected, if it can be, those issues are simply not properly before us. As much as Story wants the issue in this appeal to be about whether due process will be violated by any substantial evidence review of less than the original and entire record before the ALJ, that issue too is not properly before us.
Whether or how the record will be corrected for the lost exhibit, and the effect upon the substantial evidence review of the record without the exhibit or of a record corrected for the lost exhibit, are questions to which the answers are currently unknown to us because we cannot predict what the form of the record, if any, admitted into evidence before the county court at law will be, or what the county court at law may do as it relates to the record as offered, and the actions it may take on other motions regarding the record before conducting its substantial evidence review. To avoid these questions, the majority elects to make all those decisions for the lower court. We should not.
Specifically I do not join the court in responding to the Department‘s invitation to give an advisory opinion. The majority‘s discussion in response to the fourth issue is nothing more than advice. It should be readily apparent from the way
The judgment of the majority is to reverse and remand the case. For the reasons stated, I concur in the judgment but not the reasoning of the majority.
REX D. DAVIS
CHIEF JUSTICE