Texas Department of Public Safety v. Ben Barlow--Appeal from County Court at Law No 2 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-98-212-CV

TEXAS DEPARTMENT OF

PUBLIC SAFETY,

Appellant

v.

BEN BARLOW,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court # 4604-B

OPINION ON REMAND

The Department of Public Safety ( DPS ) suspended Ben Barlow s driver s license due to his refusal to provide a specimen of his breath for analysis following his arrest for driving while intoxicated. An administrative law judge ( ALJ ) upheld the suspension, and Barlow appealed to the County Court at Law No. 2 of Brazos County (the reviewing court ). The reviewing court reversed the decision of the ALJ and rendered judgment in Barlow s favor. DPS raises one point of error on appeal, arguing that the reviewing court erred as a matter of law because the administrative court is not deprived of its jurisdiction if the license suspension hearing is not conducted within forty (40) days after the notice of suspension.

We originally dismissed this cause for want of jurisdiction due to the amount in controversy. See Texas Dep t of Pub. Safety v. Barlow, 992 S.W.2d 732 (Tex. App. Waco 1999). On petition for review, the Supreme Court held that the amount in controversy exceeded the jurisdictional minimum of $100. See Texas Dep t of Pub. Safety v. Barlow, 48 S.W.3d 174 (Tex. 2001). Accordingly, we now address the merits of DPS s appeal on remand.

Background

Officer Thomas Brown of the College Station Police Department arrested Ben Barlow on December 3, 1997, for driving while intoxicated. Following his arrest, Barlow refused to submit a breath specimen for analysis. The officer tendered Barlow notice on that day of the suspension of his driver s license under chapter 724 of the Transportation Code based on the refusal to submit to a breath test. See Tex. Transp. Code Ann. 724.035 (Vernon Supp. 2002). Barlow timely requested a hearing to challenge the suspension of his driver s license. Id. at 724.041 (Vernon Supp. 2002). The hearing was conducted on the 49th day after the notice of suspension. At the hearing, Barlow objected to the suspension because the hearing was held more than 40 days from the notice date of the suspension. The ALJ upheld the suspension of Barlow s license. Barlow appealed the ALJ s decision to the reviewing court, which reversed the suspension based on DPS s violation of the 40-day rule. Id. at 724.047, 524.041 (Vernon Supp. 2002).

The Forty Day ProvisionSection 724.041(b) of the Transportation Code provides: A hearing shall be held...before the effective date of the notice of suspension or denial. Tex. Transp. Code Ann. 724.041(b) (Vernon Supp. 2002). Further, a suspension or denial takes effect on the fortieth day after which the person receives notice of the suspension or denial. See id. at 724.035(c) (Vernon Supp. 2002). Several Texas courts have held that failure to hold a hearing within the forty (40) days is not fatal. See Balkum v. Texas Dep't of Pub. Safety, 33 S.W.3d 263, 267-68 (Tex. App. El Paso 2000, no pet.); Texas Dep t of Pub. Safety v. Dear, 999 S.W.2d 148, 153 (Tex. App. Austin 1999, no pet.); Texas Dep't of Pub. Safety v. Guerra, 970 S.W.2d 645, 649-50 (Tex. App. Austin 1998, pet. denied). In Guerra, the Austin court held that, although chapter 524 requires that the administrative hearing be held within forty days, this requirement is "directory" and not "mandatory." See Guerra, 970 S.W.2d at 648-49. The same result has also been reached in cases under chapter 724 of the Transportation Code // which pertains to driver's license suspensions for failure to give a breath sample. See Balkum, 33 S.W.3d at 267-68; Dear, 999 S.W.2d at 153; Texas Dep't of Pub. Safety v. Salas, 977 S.W.2d 845 (Tex. App. Austin 1998, no pet.).

The legislature has set forth specific requirements for driver s license suspension hearings under chapter 724. For example, a person must request a hearing not later than the 15th day after the date on which the person receives notice of suspension. Tex. Transp. Code Ann. 724.041(a) (Vernon Supp. 2002). A hearing also shall be held not earlier than the 11th day after the date the person is notified. Id. at 724.041(b) (Vernon Supp. 2002). Further, a person requesting a hearing may obtain only one continuance, unless a person shows a medical condition, in which event an additional continuance may be granted for a period not to exceed 10 days. See id. at 724.041(g) and 524.032(c) (Vernon Supp. 2002). Finally, the legislature provided that a request for a hearing stays the suspension or denial until the date of the final decision of the administrative law judge. Id. at 724.041(c) (Vernon Supp. 2002).

A directory provision is, by definition, one the observance of which is not necessary to the validity of the proceeding. Dear, 999 S.W.2d at 151 (citations omitted). Although we believe the legislature intended for hearings under chapter 724 to be held without undue delay, we agree with the Austin Court that the scheduling of the final hearing may be beyond DPS s control. Id. Moreover, "it would be unreasonable to punish the Department for acts that are not within its control." Guerra, 970 S.W.2d at 649. We can ascertain no reason under the statutory scheme, absent proof of bad faith on the part of DPS, to invalidate suspension because the hearing was not conducted within forty days. Thus, we join the other appellate courts in finding the forty-day provision directive in nature, rather than mandatory. See Dear, 999 S.W.2d at 151.

Citing Guerra, Barlow argues that the ALJ lacked jurisdiction because DPS failed in its affirmative duty to provide good cause for the delay beyond the forty days. We disagree. The Court in Guerra held that if the hearing occurs after forty days, DPS must show "good cause" if it contributed to the delay. Id. at 650. The San Antonio court agreed. See Texas Dep't of Pub. Safety v. Vela, 980 S.W.2d 672, 674 (Tex. App. San Antonio 1998, no pet.). The Austin Court later clarified its decision in Guerra by stating that it did not hold that DPS faced invalidation of a license suspension if it failed to make a good cause showing. See Dear, 999 S.W.2d at 151;see also Balkum, 33 S.W.3d at 268. The court reasoned that placing the burden on DPS to establish good cause, or else face invalidation of a license suspension, runs counter to the well established rule that violation of a directory provision does not deprive the agency of jurisdiction to act. See Dear, 999 S.W.2d at 151-52. If the legal consequence of failing to comply with a directory provision was the same as that for failing to comply with a mandatory provision, there would be no meaningful distinction between the two. Id at 152. In determining the effect of non-compliance, the court considered that laws subjecting intoxicated motorists to suspension of driving licenses are intended to remove dangerous drivers from roadways to protect both themselves and other motorists, and the purpose of the forty-day requirement is to promote the proper, orderly, and prompt conduct of business. See id. Given these purposes, we agree that because of the directive nature of the forty-day provision, a driver seeking to invalidate a license suspension must establish bad faith on the part of DPS. Id. at 153; Balkum, 33 S.W.3d at 268.

We also agree that there may be a penalty, i.e., the invalidation of the suspension, if there is a showing of bad faith by DPS that resulted in the hearing being held after the forty-day period. See Dear, 999 S.W.2d at 153. In the present case, however, we find no such evidence of bad faith. Here, as in Vela, the delay in conducting Barlow s hearing was not the fault of DPS. Id. As a remote site for hearings of this nature, the Brazos County courthouse conducted these hearings only on each Wednesday during the week. The ALJ explained that the delay resulted from the courthouse being closed on the consecutive Wednesdays of December 24, 1998 (Christmas Eve), and December 31, 1998 (New Year s Eve). DPS did not contribute to these delays. //

Because we conclude that the Department's departure from the directory provision requiring an administrative hearing within 40 days of notice of license suspension is not jurisdictional and does not, under the present facts, give rise to any inference of bad faith by DPS, we sustain the DPS's point of error and reverse the judgment of the county court at law; we remand the cause to the county court at law for further proceedings.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Vance, and

Justice Gray

Reversed and remanded

Opinion delivered and filed January 30, 2002

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