Alexis Ann Manley v. Texas Department of Public Safety--Appeal from County Court at Law No 3 of Bexar County

MEMORANDUM OPINION

No. 04-06-00547-CV

Alexis Ann MANLEY,

Appellant

v.

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Appellee

From the County Court at Law No. 3, Bexar County, Texas

Trial Court No. 310716

Honorable David J. Rodriguez, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

Delivered and Filed: January 31, 2007

REVERSED AND REMANDED

Alexis Ann Manley ("Manley") appeals the county court's judgment affirming an administrative order to suspend her driving privileges based upon her refusal to submit to a blood or breath specimen.

Factual and Procedural History

On October 15, 2005, an officer observed Manley driving 65 mph in a 45 mph zone. A traffic stop was initiated, whereupon the officer detected a strong odor of alcohol upon Manley's breath. The officer administered several field sobriety tests, finding that Manley was unable to follow directions or keep her balance and exhibited all six clues on the horizontal gaze nystagmus test ("HGN"). Manley was then asked to submit a specimen of breath or blood but refused to do so. As a result, her driver's license was automatically suspended.

Manley requested an administrative hearing to contest the suspension of her driver's license; however, on November 17, 2005 when the hearing was scheduled, Manley discovered that the arresting officer had not been subpoenaed to testify. Manley requested and obtained a continuance in order to subpoena him. On December 12, 2005, the hearing commenced with the Texas Department of Public Safety ("TDPS") introducing the officer's report; Manley objected based on hearsay but the report was admitted into evidence. The TDPS rested and Manley sought to call the arresting officer to testify. However, the officer failed to show despite being subpoenaed, and Judge Beeler granted Manley a second continuance to afford her the opportunity to examine the arresting officer.

On January 12, 2006, the case was called a third time; however, the officer once again failed to show. Judge Harvel presided over this final hearing, and there was some discussion regarding whether or not Judge Beeler had admitted the officer's report into evidence at the previous hearing; (1)Judge Harvel stated she was at a disadvantage because she had not listened to the tape of the prior hearing and Judge Beeler, who had been present at that hearing, was unavailable. Judge Harvel indicated she would reset the hearing so that she could review the tape and "[i]f the evidence was not admitted and the case was continued to allow the officer to appear, then [she would] dismiss the case, because . . . the notice to the officer [was] sufficient." However, Judge Harvel further indicated that if the evidence had been admitted and it was clear from the record the continuance was granted to allow Manley the opportunity to question the officer, then she would reset the case again to allow the officer to be present.

Nevertheless, on January 17, 2006, without hearing further testimony or evidence, the Administrative Law Judge ("ALJ") issued an order authorizing the TDPS to suspend Manley's driver's license for 180 days. Manley appealed the ALJ's order, arguing that because she was unable to examine the arresting officer, she had been denied due process of law and further, the ALJ erred in admitting the officer's report. On June 15, 2006, the matter was heard and, one month later, the trial court issued its order upholding the ALJ's administrative order suspending Manley's license. Manley appeals, arguing that she was denied due process of law in violation of Article I, 19 of the Texas Constitution and 524.041 of the Texas Transportation Code (2) because she was not afforded an opportunity to cross-examine the officer or present evidence. See Tex. Const. art. I, 19; Tex. Transp. Code Ann. 524.041 (Vernon 1999).

Due Process

A defendant's fundamental right to cross-examine adverse witnesses is protected by both the United States Constitution and the Texas Constitution. See U.S. Const. Amend. XIV, 1; Tex. Const. art. I, 19. "Cross-examination is a safeguard essential to a fair trial and a cornerstone in the quest for truth. . . . Due process requires an opportunity to confront and cross-examine adverse witnesses." Davidson v. Great Nat'l Life Ins. Co., 737 S.W.2d 312, 314 (Tex.1987). Further, this right to cross-examine adverse witnesses and to examine and rebut evidence is not limited to trials, but applies to administrative hearings as well. See Tex. Dep't of Pub. Safety v. Burrer, No. 04-03-00896-CV, 2005 WL1105181, at *3 (Tex. App.--San Antonio May 11, 2005, no pet.) (mem. op., not designated for publication) (citing Richardson v. City of Pasadena, 513 S.W.2d 1, 4 (Tex. 1974));see also Parks v. Tex. Dep't of Pub. Safety, No. 01-03-00274-CV, 2004 WL 2366934, at *5 (Tex. App.-- Houston [1st Dist.] Oct. 21, 2004, no pet.) (mem. op., not designated for publication) (noting that "the administrative suspension of a driver's license comports with the requirements of constitutional procedural due process [when the defendant] received notice of his suspension, an opportunity to be heard to contest it, and a means of appealing the ALJ's decision"). The ultimate test of due process of law in an administrative hearing is the presence or absence of rudiments of fair play. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984); see also Ray v. Tex. State Bd. of Pub. Accountancy, 4 S.W.3d 429, 433 (Tex. App.--Austin 1999, no pet.).

Discussion

In the present case, the arresting officer determined there was reasonable suspicion to stop and probable cause to arrest Manley for DWI; therefore, Manley was entitled to examine him and rebut his report. See Tex. Const. art. I, 19; 1 Tex. Admin. Code 159.23 (c) (7); Burrer, 2005 WL 1105181, at *3. The record reflects, however, that although Manley subpoenaed the officer on more than one occasion and repeatedly expressed her intent to examine him, Manley was deprived of this opportunity. See Tex. Const. art. I, 19; 1 Tex. Admin. Code 159.23 (c) (7).

TDPS responds that because Manley failed to make the proper objection to the officer's report and it was properly admitted, "[t]he officer did not have to appear on January 12[th]." (3) We disagree.

Section 159.23 of the Texas Administrative Code provides that "the defendant shall have the right to subpoena the officer in accordance with 159.17 of this title (relating to Request for Subpoenas)." 1 Tex. Admin. Code 159.23 (c) (7). This section further states that if the defendant subpoenas the officer and "the officer does not appear at the scheduled hearing, the officer's report shall not be admissible." Id. Here, Manley subpoenaed the officer and the officer failed to show; however, Manley objected to the report being admitted as evidence based on hearsay and not on the officer's failure to appear at the scheduled hearing. (4) Nevertheless, the Administrative Code provides that Manley may subpoena the officer and, presumably, examine him. See id. And while Judge Harvel indicated at the final hearing that Manley would be afforded this opportunity, clearly Manley was denied this fundamental right. Burrer, 2005 WL 1105181, at *3.

TDPS cites to Ochs v. Martinez, 789 S.W.2d 949, 951 (Tex. App.--San Antonio 1990, writ denied) and Tex. Dept. of Pub. Safety v. Walter, 979 S.W.2d 22, 26 (Tex. App.--Houston [14th Dist.] 1998, no pet.), in support of its position that Manley does not have a right to confront witnesses in an administrative hearing. However, we find both cases readily distinguishable.

In Ochs, this court was called upon to determine the admissibility of videotaped testimony pursuant to the Texas Family Code. (5) Ochs, 789 S.W.2d at 951. The appellant in Ochs argued that the Family Code provision permitting videotaped testimony of a child 12 years of age or younger alleged to have been abused was unconstitutional under the Sixth Amendment of the U.S. Constitution. Id. However, this court noted in Ochs that the Sixth Amendment "applies by its own terms only to 'all criminal prosecutions' and therefore is inapplicable in civil cases.'" Id. However, this court did not address, in Ochs, the right of a defendant to cross-examine witnesses in an administrative proceeding.

Walter, on the other hand, does address the right to cross-examine witnesses in administrative proceedings and more closely parallels the facts in the present case; however, Walter clearly supports Manley's position rather than the TDPS's. Walter, 979 S.W.2d at 26. In Walter, the DPS appealed the trial court's judgment reversing an administrative order suspending Walter's driver's license. Id. The trial court's decision was based, in part, on the admission of the officer's report. Id. In reversing the trial court's judgment, the court of appeals noted that 159.23 (c) (6) of the Administrative Code provides for admission of the officer's report, as well as the presence of the officer at the administrative hearing, provided that the defendant subpoenas the officer; if the defendant does so and the officer fails to appear, the officer's report shall not be admissible. Id. (citing 1 Tex. Admin. Code 159.23 (c)(6)). The court in Walter found that there was no evidence in the record that Walter "ever requested the DPS to subpoena [the officer] or that [the officer] failed to appear at the hearing." Walter, 979 S.W.2d at 26. The court held, therefore, that pursuant to the Texas Administrative Code, the officer's sworn report was admissible as a public record. Id. (citing 1 Tex. Admin. Code 159.23 (c)(6)).

In the present case, the record reflects that Manley expressed her intent to examine the arresting officer at the first setting, whereupon the hearing was reset. Unlike Walter, the record here further reflects that Manley then subpoenaed the officer, who failed to appear at the second setting. Finally, at the last setting, Manley again sought to examine the officer but was denied the opportunity to do so when the officer again failed to appear despite being subpoenaed a second time by Manley at the court's request. As such, the record before this court reflects not only Manley's attempts to subpoena the officer but also, the officer's repeated failure to appear. Thus, we find that Manley was denied the right to examine the officer and possibly, rebut evidence and that this resulted in the absence of rudiments of fair play. Crank, 666 S.W.2d at 94; Burrer, 2005 WL 1105181, at *3. Manley's issue is granted.

Conclusion

Accordingly, we reverse the judgment of the trial court and remand this matter to the county court, ordering that it be remanded to the State Office of Administrative Hearing ("SOAH") for further proceedings consistent with this opinion.

Karen Angelini, Justice

1. The record reflects that Judge Beeler did, in fact, admit the officer's report into evidence.

2. Although Manley argues she was denied due process in violation of 524.041 of the Transportation Code, this section addresses the requirements for filing an appeal from administrative hearings. See Tex. Transp. Code Ann. 524.041. Section 159.23 of the Texas Administrative Code, on the other hand, sets forth the rules of procedure for administrative license suspension proceedings and specifically addresses the defendant's "right to subpoena an officer." See 1 Tex. Admin. Code 159.23 (2006) (State Office of Administrative Hearings, Hearing). Nevertheless, we construe Manley's arguments here liberally "to obtain a just, fair, and equitable adjudication of the litigant's rights." McCall v. Tana Oil & Gas Corp., 82 S.W.3d 337, 348 (Tex. App.--Austin 2001), rev'd in part on other grounds, 104 S.W.3d 80 (Tex. 2003).

3. The TDPS further argues that Manley failed to properly subpoena the officer the second time; however, the ALJ found that "the notice to the officer [was] sufficient." Moreover, the record reflects Manley's compliance with Tex. R. Civ. P. 176.5 (b) (2).

4. According to case law, the DPS Form DIC-23, referred to here as the officer's report, is not hearsay and is properly admissible as a public record pursuant to Tex. R. Evid. 803 (8). See Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 803-04 (Tex. App.--Corpus Christi 2002, pet. denied); Tex. Dep't of Pub. Safety v. Gratzer, 982 S.W.2d 88, 90 (Tex. App.--Houston [1st Dist.] 1998, no pet.); Clement v. Tex. Dep't of Pub. Safety, 726 S.W.2d 579, 581 (Tex. App.--Fort Worth 1986, no writ).

5. Section 11.21 of the Family Code was repealed by Act of April 20, 1995, 74th Leg., ch. 20, 2, 1995 Tex. Gen. Laws 282, and re-codified at Tex. Fam. code Ann. 104.002 (Vernon 2002).