Texas Department of Public Safety v. Thomas Eugene Bell, Sr.--Appeal from County Court of Kerr County

CONCURRING OPINION
No. 04-99-00093-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellant
v.
Thomas Eugene BELL, Sr.,
Appellee
From the County Court at Law, Kerr County, Texas
Trial Court No. CV980081
Honorable Spencer W. Brown, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Concurring opinion by: Tom Rickhoff, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Alma L. L pez, Justice

Delivered and Filed: October 29, 1999

Given this record and the presumption favoring the administrative law judge's factual finding, the order of the Kerr County Court of Law, the Honorable Spencer W. Brown, appears to be inexplicable. Thomas Eugene Bell, Sr., already suffering from extensive medical problems, admitted to drinking beer and then driving. The evidence demonstrated that Bell's pickup truck was moving between lanes, crossed the highway dividing lanes, and could have struck oncoming traffic. After pulling Bell over, Trooper Morales observed several signs that Bell was intoxicated. Bell had a strong odor of alcohol on his breath, bloodshot eyes, slurred speech, and unsteady balance. He failed three field sobriety test. The evidence in the record is so conclusive, had Trooper Morales failed to arrest Bell for driving while intoxicated, he would have been irresponsible. See Texas Dep't of Public Safety v. Walter, 979 S.W.2d 22, 29 (Tex. App.-Houston [14th Dist.] 1998, no pet.).

Since the administrative law judge, Judge Beeler, is the exclusive trier of fact in a license revocation hearing, Judge Brown, even if he disagreed with the findings of fact, is precluded from substituting his own conclusions if a reasonable person could have found that the Department proved its case by a preponderance of the evidence. Id at 28-29. I find it difficult to see how a reasonable person could have come to any other conclusion. However, the following portion of our record is particularly enlightening:

Mr. Danford: Well, it's part that you--I didn't know you hadn't read this. (Speaking about the record at the administrative hearing)

Mr. Ray: Here you go. I haven't marked on this.

(Hands to court)

The Court: Well. I'd read it if I known it was there. [sic]

The Court: Dad-gum it, I ought to stop and read it. It's 41 pages long.

Mr. Danford: It goes real fast. It's a quick read, Judge.

The Court: If -- well, if you like, I can try to peruse it real quick. Do my best. I'd have it read. I apologize.

(Reading)

The Court: All right. I got the gist of what happened. Tell me about it. Let's go.

Mr. Danford: Well, your Honor, I don't know if you have a copy of the actual administrative decision from the judge that we appealed.

The Court: I don't have it.

Mr. Danford: But I do have one of those. I'll let you--I'll let you look at that with the findings of fact in it.

(Hands to Judge.)

It is apparent from our record, that the reviewing judge may not have had time to digest the record of the administrative hearing. As a former trial judge, I know we can just get too tired on Friday to read all that is put before us, but "dad-gum it," if the trial judge does not read the record, we will have to.

Tom Rickhoff, Justice

Do Not Publish