Parks, Kevin Sterling v. Texas Department of Public Safety--Appeal from Co Civil Ct at Law No 3 of Harris County

Reversed and Remanded and Opinion filed May 23, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-99-00582-CV

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KEVIN STERLING PARKS, Appellant

V.

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee

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On Appeal from the County Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 693,571

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O P I N I O N ON R E M A N D

Kevin Sterling Parks appeals the County Court s dismissal of the appeal of his driver s license suspension. We reverse and remand.

The Texas Department of Public Safety ( DPS ) suspended Parks s driver s license for his refusal to give a breath specimen. See Tex. Transp. Code Ann. 724.035(a)(1) (Vernon Supp. 2002). An administrative review resulted in affirmance of the suspension, and Parks s appeal of that decision to the County Court at Law No. 3 of Harris County (the County Court ) was dismissed without an indication of the reason for dismissal.[1]

Where an intermediate appeals court has dismissed a case without ruling on the merits, a higher appeals court may only affirm or reverse (and remand) the judgment of dismissal, i.e., it may not address the case on the merits. See Brooks v. Jones, 578 S.W.2d 669, 674 (Tex. 1979); Bay v. Mecom, 393 S.W.2d 819 (Tex.1965). In this case, we are unable to ascertain from the record or briefs of the parties whether a dismissal of the appeal (as contrasted from an affirmance) by the County Court was warranted.[2] To the extent the County Court truly lacked jurisdiction or was otherwise precluded from reviewing the case on the merits, the same constraint would exist in this court. Conversely, we can find no indication that the County Court decided the case on the merits in entering its dismissal. Because the judgment, record, and briefs before us do not enable us either to review the dismissal or address the case on the merits, we reverse the judgment of the County Court and remand this case to that court for entry of judgment either stating the grounds relied upon for dismissal, if any, or disposing of the case on the merits with an appropriate judgment, as the case may be.

/s/ Richard H. Edelman

Justice

Judgment rendered and Opinion filed May 23, 2002.

Panel consists of Justices Hudson, Fowler, and Edelman.

Do Not Publish Tex. R. App. P. 47.3(b).

[1] This court originally determined that it lacked subject matter jurisdiction to entertain appeals in license suspension cases and dismissed this appeal, but the Texas Supreme Court thereafter held to the contrary and remanded the case for further proceedings. See Parks v. Texas Dep t of Pub. Safety, 62 S.W.3d 202 (Tex. App. Houston [14th Dist.] 2000), pet. granted, judgm t vacated w.r.m. 51 S.W.3d 295 (Tex. 2001).

[2] An appeal of a driver s license suspension, following an administrative hearing, requires compliance with 524.041 of the Texas Transportation Code. See Tex. Transp. Code Ann. 724.047 (Vernon1999). Section 524.041 provides that a person whose driver s license suspension is sustained may appeal the decision by: (1) filing a petition not later than the 30th day after the date the administrative decision is final, (2) filing a petition in a county court at law in the county in which the person was arrested, and (3) sending a copy of the petition by certified mail to the Texas Department of Public Safety and to the State Office of Administrative Hearings, which copy must be certified by the clerk of the court in which the petition is filed. Tex. Transp. Code Ann. 524.041(a)(b)(c) (Vernon1999). The record in this case reflects that the first two foregoing requirements were met, but contains only the allegations in Parks s petition to show that he complied with the third, which is also jurisdictional. See Texas Dep t of Pub. Safety v. Benoit, 994 S.W.2d 212, 213-14 (Tex. App. Corpus Christi 1999, pet. denied).