TEXAS DEPARTMENT OF PUBLIC SAFETY , Appellant v. KEVIN R. BARRETT, Appellee

REVERSED and RENDERED; Opinion Filed on April 27, 2001.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-98-01420-CV
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TEXAS DEPARTMENT OF PUBLIC SAFETY , Appellant
V.
KEVIN R. BARRETT, Appellee
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On Appeal from the County Criminal Court No. 8
Dallas County, Texas
Trial Court Cause No. MC-98-03602-J
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OPINION
Before Justices Kinkeade, Richter and Dodson FN:1
Opinion By Justice Dodson
        In this appeal originating from an administrative license suspension, the Texas Department of Public Safety (TDPS) appeals the order of the Dallas county criminal court reversing the administrative decision authorizing a suspension of Kevin R. Barrett's driver's license. In three issues, TDPS contends the reviewing magistrate (1) did not have jurisdiction to hear Barrett's civil appeal; (2) erred in finding there was not substantial evidence to support the administrative law judge's finding regarding Barrett's blood alcohol content; and (3) erred in reversing the administrative law judge. TDPS therefore contends the county criminal court erred in adopting the magistrate's findings of fact and conclusions of law. We reverse the county criminal court's order reversing the decision of the administrative law judge.
Background
        Officer Bobby Watkins, Jr. arrested Barrett on March 17, 1998, after he failed several field sobriety tests. Barrett voluntarily took a breath test, which registered his blood alcohol concentration to be 0.122. Barrett's license was then automatically suspended. Barrett contested the suspension in an administrative hearing on May 18, 1998. The administrative law judge concluded Barrett's license was subject to a suspension or denial for sixty days and authorized TDPS to suspend or deny Barrett's driving privileges. Barrett then appealed to a county criminal court, which referred the case to a magistrate. TDPS filed a plea to the jurisdiction, arguing that administrative law review appeals are civil matters that only county court judges have jurisdiction to hear. The county criminal court disagreed and the case went to a magistrate. The magistrate entered findings of fact and conclusions of law, finding the administrative law judge erred in admitting the breath test results because TDPS failed to present evidence that the operator had complied with appropriate breath testing regulations. Therefore, the magistrate reversed the administrative decision. The county criminal court adopted and ratified the magistrate's findings and conclusions. TDPS then filed this appeal.
Discussion
        In TDPS's first issue, it contends the county criminal court erred by referring the case to the magistrate because the matter was outside the magistrate's statutory authority. We disagree.
        A Dallas County criminal judge may appoint a magistrate to perform various duties. Tex. Gov't Code Ann. § 54.301(a) (Vernon 1998). A judge may refer to a magistrate any matter arising out of a criminal case involving any matter the judge considers necessary and proper. Act of June 12, 1985, 69th Leg., R.S., ch. 480, § 1, 1985 Tex. Gen. Laws 1721, 2003, amended by Act of May 23, 1997, 75th Leg., R.S., ch. 215, § 2, 1997 Tex. Gen. Laws 1085, amended by Act of June 18, 1999, 76th Leg., R.S., ch. 811, 1999 Tex. Gen. Laws 3444. FN:2
        In this case, Watkins arrested Barrett after he failed several field sobriety tests. Barrett subsequently consented to a breath test which registered his blood alcohol content at 0.122. Watkins then arrested Barrett, triggering an automatic suspension of his driver's license, which Barrett contested in the administrative hearing. Because Barrett was arrested and lost his license for failing field sobriety tests and also failed the breath test, we conclude the matter arose out of a criminal case. In addition, there is no evidence that the State elected not to prosecute Barrett, unlike this Court's recent case of Gambling Paraphernalia, Devices, Equip., and Proceeds v. State, 22 S.W.3d 625, 627-28 (Tex. App._Dallas 2000, no pet. ). Therefore, the county criminal court did not err in referring the case to the magistrate judge. As such, the magistrate judge had jurisdiction over the case. We overrule TDPS's first issue.
        In TDPS's second issue, it contends the magistrate erred in finding there was not substantial evidence to support the administrative law judge's finding that Barrett had an alcohol concentration of 0.10 or greater while operating a motor vehicle. The magistrate found TDPS failed to establish the breath sample was taken and analyzed in accordance with section 724.016 of the Texas Transportation Code and testing rules and regulations. Therefore, the magistrate determined the administrative law judge erred in admitting the blood alcohol concentration test score. The magistrate reversed the administrative law judge's decision to suspend Barrett's driver's license because TDPS did not prove by a preponderance of the evidence that Barrett had a blood alcohol content of 0.10 or greater while operating a motor vehicle. The county criminal court judge adopted and ratified these findings of fact and entered an order reversing the decision of the administrative law judge.
        Section 724.016 states a breath specimen must be taken and analyzed by an individual possessing a certificate issued by the department of public safety certifying that he is qualified to perform the analysis. Tex. Transp. Code Ann. § 724.016(a) (Vernon 1999). The department of public safety may also (1) adopt rules approving satisfactory analytical methods; and (2) ascertain the qualification of an individual to perform the analysis. Id. § 724.016(b) (Vernon 1999).
        The reliability of the breath test and the validity of the results may be attested to by affidavit from the certified breath test technical supervisor responsible for maintaining and directing the operation of the breath test instruments. Tex. Transp. Code Ann.ñ§ 524.038(a) (Vernon 1999). The affidavit must contain statements on (1) the reliability of the instrument and the analytical results; and (2) compliance with state law in the administration of the program. Id. § 524.038(b) (Vernon 1999).
        TDPS introduced the affidavit of Lisa Fondren, a certified technical supervisor for the Dallas Police Department. She testified her responsibilities include the inspection and maintenance of the breath test instruments, training and certifying operators, and monitoring breath tests. Fondren supervised R.J. Brainard, the breath test operator and listed his certificate number, stating he was certified as a breath test operator at the time Barrett was tested. Fondren also testified about her training and certifications. Fondren stated she was familiar with the intoxilyzer used on Barrett and periodically inspected the instrument to verify its operational condition. According to Fondren's affidavit, the intoxilyzer was tested on March 9, 1998 and March 19, 1998 and the intoxilyzer was in proper operational condition. Therefore, she opined the instrument was in proper operational condition on March 17, 1998, when it was used on Barrett. Fondren also stated the reference solution was properly compounded and the alcohol concentration was checked prior to being placed at the instrument location. She attached Barrett's intoxilyzer test record and stated the test was complete and valid and established blood alcohol concentrations of 0.122 and 0.126.
        Barrett objected to the technical supervisor's affidavit on the basis that it did not indicate whether the test was done in compliance with TDPS regulations, specifically Section 724.016 and there was nothing to indicate the test was performed properly. We initially note Section 724.016 only requires the breath specimen to be taken and analyzed by an individual possessing a certificate issued by the department of public safety certifying that he is qualified to perform the analysis. See Tex. Transp. Code Ann. § 724.016(a). Fondren's affidavit stated the specimen was taken by a certified breath test operator and listed the certificate number. While Section 724.016 also states that the department of public safety may adopt rules approving satisfactory analytical methods, this section is not mandatory. See id. § 724.016(b).
        Further, the Legislature specifically enacted Section 524.038 which provides that the reliability of the breath test and the validity of the results may be attested to by affidavit from the certified breath test technical supervisor. See id.ñ§ 524.038(a). In this case, Fondren was the certified breath test supervisor and supplied the affidavit. The affidavit contained statements on (1) the reliability of the instrument and the analytical results; and (2) compliance with state law in the administration of the program. See id. § 524.038(b). Therefore, the affidavit provided evidence of the reliability of the breath test and the validity of the results. As such, the administrative law judge did not err in admitting the affidavit and concluding Barrett had an alcohol concentration of 0.10 or greater while operating a motor vehicle. Consequently, the magistrate, and ultimately the county criminal judge, erred in reversing the administrative law decision on this basis. We sustain TDPS's second issue.         In TDPS's third issue, it contends the reviewing court erred in reversing the administrative law decision because the decision was supported by sufficient evidence to sustain suspension of Barrett's driver's license. Because of our disposition of TDPS's second issue, we do not need to address this issue.
        Having concluded the county criminal court erred in reversing the administrative law decision, we reverse the order reversing the decision of the administrative law judge and affirm the administrative decision.
 
 
                                                          
                                                          CARLTON B. DODSON
                                                          JUSTICE, ASSIGNED
 
Do Not Publish
Tex. R. App. P. 47
 
 
FN:1
1          The Honorable Carlton B. Dodson, Justice, Court of Appeals, Seventh District of Texas at Amarillo, Retired, sitting by assignment.
FN:2
2 The current version of this statute is at Tex. Gov't Code Ann.ñ§ 54.306 (Vernon Supp. 2001). The cited provision has not changed in the amendments but has been moved from subsection 7 to subsection 8. In addition, the Legislature added a new provision including the appeal of an administrative driver's license revocation hearing.