Texas Department of Public Safety v. Gyles Robert Alford--Appeal from County Court at Law No 2 of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-03-00035-CV

Texas Department of Public Safety,

Appellant

v.

Gyles Robert Alford,

Appellee

From the County Court at Law No. 2

Brazos County, Texas

Trial Court # 4680-B

Opinion

Based on the findings and conclusions of an administrative law judge, the Texas Department of Public Safety suspended Gyles Robert Alford s driver s license for two years. The trial court reversed that decision.

The Department asks us to revisit a prior decision concerning the statutory warning to be given to the holder of a commercial driver s license who is suspected of driving a non-commercial vehicle while intoxicated. In Texas Department of Public Safety v. Thomas, we held that giving the warnings prescribed in chapter 724 of the Transportation Code was not adequate to warn Thomas, the holder of a commercial license, of the actual, direct, and statutory consequences of his refusal to give a breath specimen. Texas Dept. of Public Safety v. Thomas, 985 S.W.2d 567, 570 (Tex. App. Waco 1998, no pet.). Now, the Department notes, chapter 522 was amended in 2001 to clarify that the warnings required by that chapter apply only to a person who is stopped or detained while driving a commercial motor vehicle. Tex. Transp. Code Ann. 522.102(c) (Vernon Supp. 2004). We agree and sustain the Department s first issue. We do not reach the second issue, which is conditioned on our finding that the warnings given were inadequate under Thomas.

The Department s fourth issue says the trial court erred in reversing the administrative decision because it improperly held that the Department failed to prove the elements requiring a suspension under section 724.042 of the Transportation Code at the hearing before the administrative law judge.

As we noted in Thomas, a county court at law reviews the suspension of a driver's license under the substantial evidence rule. Texas Dept. of Pub. Safety v. Lavender, 935 S.W.2d 925, 929 (Tex. App. Waco 1996, writ denied). When there is substantial evidence that supports the administrative agency's finding, the agency's order must stand. Texas Dept. of Pub. Safety v. Guajardo, 970 S.W.2d 602, 604 (Tex. App. Houston [14th Dist.] 1998, no pet.). The issue on appeal is whether there is a reasonable basis in the record to support the agency's action, not whether the agency reached the correct conclusion. Id. at 605. When the question is one of law, however, we exercise de novo review. Thomas, 985 S.W.2d at 569.

No findings of fact or conclusions of law were requested or filed. When written findings of fact and conclusions of law are not requested or filed, then the decision being reviewed must be affirmed on any legal theory finding support in the evidence. Texas Dep t of Pub. Safety v. Wilmoth, 83 S.W.3d 929, 931 (Tex. App. Amarillo 2002, no pet.). When a decision or judgment must be upheld on any ground supported by the record, it is the appellant's burden to assign error to each ground or the decision will be affirmed on the ground to which no complaint was made. See id.

The Administrative Decision recites as a finding of fact that Alford was given warnings under section 724.000 because he was operating a non-commercial vehicle. No such section exists in the Transportation Code. As a conclusion of law, the decision says Based on the foregoing, the Judge concludes the Department proved the issues set out in Tex. Transp. Code Ann. 524.035 or 724.042 and that Defendant s license is subject to a suspension for 2 years pursuant to Tex. Transp. Code Ann. 724.035. (Emphasis added.) Based on the written decision, the trial court could have concluded that on the face of the record no factual basis existed for the conclusion of law as stated. See id. We overrule issue four.

Because the trial court s decision will be sustained on issue four, we do not reach issue three which complains that the trial court erred in reversing the administrative decision because it improperly held that a two-year suspension of Alford s license constituted an ex post facto punishment.

We affirm the trial court s Order reversing the Administrative Decision.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissenting)

Affirmed

Opinion delivered and filed November 10, 2004

[CV06]