TEXAS DEPARTMENT OF PUBLIC SAFETY v. JOSE JESUS HERNANDEZ, JR.--Appeal from County Court at Law No 1 of Hidalgo County

NUMBER 13-02-293-CV

COURT OF APPEALS

  THIRTEENTH DISTRICT OF  TEXAS

    CORPUS CHRISTI  -  EDINBURG

___________________________________________________________________

 TEXAS  DEPARTMENT OF PUBLIC SAFETY, Appellant,

v.

  JOSE JESUS HERNANDEZ, JR., Appellee.

___________________________________________________________________

On appeal from the County Court at Law No. 1

  of Hidalgo  County,  Texas.

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MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Castillo

Opinion by Justice Rodriguez

Appellant, Texas Department of Public Safety (DPS), brings this appeal following the trial court=s order reversing the administrative law judge=s (ALJ) suspension of the drivers license of appellee, Jose Jesus Hernandez, Jr. By one issue, DPS contends the trial court erred in finding there was not a reasonable basis for the ALJ=s decision authorizing the suspension of Hernandez=s driving privileges. We reverse and render.

I. Facts

As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here. Tex. R. App. P. 47.4.

II. Standard of Review

Review of an ALJ=s suspension of driving privileges is made under a substantial evidence standard. See Tex. Gov=t Code Ann. ' 2001.174 (Vernon 2000); Mireles v. Tex. Dep=t of Pub. Safety,9 S.W.3d 128, 131 (Tex. 1999); Tex. Dep=t of Pub. Safety v. Struve, 79 S.W.3d 796, 800 (Tex. App.BCorpus Christi 2002, pet. denied). Under a substantial evidence review, the reviewing court cannot substitute its judgment for that of the ALJ and must affirm the ALJ=s decision if it is supported by more than a scintilla of evidence. Mireles, 9 S.W.3d at 131; Struve,79 S.W.3d at 800. Thus, the issue for the reviewing court is not whether the ALJ made a correct decision, but rather whether there is some reasonable basis in the record for the action taken by the ALJ. Mireles, 9 S.W.3d at 131; Struve, 79 S.W.3d at 800. We have noted that the burden for overturning an agency ruling is formidable. Tex. Dep=t of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex. App.BCorpus Christi 2000, no pet.). Thus, an administrative decision may be sustained even if the evidence preponderates against it. Mireles, 9 S.W.3d at 130; Pucek,22 S.W.3d at 67.

III. Analysis

By its sole issue, DPS argues there was a reasonable basis for the ALJ=s decision authorizing the suspension of Hernandez=s license. We agree.

Section 724.042 of the Texas Transportation Code provides that the issues to be considered at an administrative hearing are whether:

(1) reasonable suspicion or probable cause existed to stop or arrest the person;

(2) probable cause existed to believe that the person was:

(A) operating a motor vehicle in a public place while intoxicated . . .

(3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and

(4) the person refused to submit to the taking of a specimen on request of the officer.

Tex. Transp. Code Ann. ' 724.042 (Vernon Supp. 2003). If the ALJ finds in the affirmative on each issue, the license suspension is sustained. See id. ' 724.043 (Vernon Supp. 2003). If the ALJ does not find each issue in the affirmative, the person=s license is not suspended. Id.

In this instance, there was evidence to support an affirmative finding by the ALJ for each issue. The officers had reasonable suspicion or probable cause to stop Hernandez because he was sleeping inside his vehicle in the middle of an expressway at 3 a.m. See id. ' 724.042(1); see also Chapnick v. State, 25 S.W.3d 875, 877 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d) (investigatory stop requires only reasonable suspicion and validity of stop is determined by totality of circumstances). Moreover, probable cause existed that Hernandez had been operating a motor vehicle in a public place while intoxicated because the arresting officer found Hernandez asleep behind the wheel in his vehicle, and Hernandez had red, bloodshot eyes, slurred speech, an odor of alcohol, and unsteady balance. See Tex. Transp. Code Ann. ' 724.042(2)(A); see also State v. Garrett, 22 S.W.3d 650, 654 (Tex. App.BAustin 2000, no pet.) (odor of alcohol, watery eyes, and unsteadiness are signs of impairment); Chilman v. State, 22 S.W.3d 50, 56 (Tex. App.BHouston [14th Dist.] 2000, pet. ref=d) (probable cause existed even when an arresting officer did not see the accused operating a motor vehicle). Also, Hernandez was placed under arrest and was asked to provide a breath specimen which he refused. See Tex. Transp. Code Ann. ' 724.042(3)-(4).

We conclude that the decision by the ALJ to suspend Hernandez=s license was supported by more than a scintilla of evidence, and there was some reasonable basis in the record for the action taken by the ALJ.[1] See Mireles, 9 S.W.3d at 131; Struve,79 S.W.3d at 800. Appellant=s sole issue is sustained.

IV. Conclusion

Accordingly, we reverse the order of the trial court and render judgment upholding the administrative law judge=s decision authorizing the suspension of Hernandez=s license.

NELDA V. RODRIGUEZ

Justice

Opinion delivered and filed

this 24th day of July, 2003.

[1]We acknowledge the arresting officers did not administer field sobriety tests, and there is no explanation in the record why Hernandez was not given the opportunity to perform any of the tests. However, as shown above, we have concluded there is more than a scintilla of evidence to support the ALJ=s decision.