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2007 Tex. App. LEXIS 633,*
Alexis Ann MANLEY, Appellant v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee
No. 04-06-00547-CV
COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO
2007 Tex. App. LEXIS 633
January 31, 2007, Delivered
January 31, 2007, Filed
SUBSEQUENT HISTORY:
Released for Publication June 7, 2007.
PRIOR HISTORY:
[*1] From the County Court at Law No. 3, Bexar County, Texas. Trial Court No.
310716. Honorable David J. Rodriguez, Judge Presiding.
DISPOSITION:
REVERSED AND REMANDED.
COUNSEL: For APPELLANT: James B. Manley, Attorney At Law, Cleveland, TX.
For APPELLEE: Marie Haspil, Attorney, San Antonio, TX.
JUDGES: Opinion by: Karen Angelini, Justice. Sitting: Catherine Stone, Justice
, Karen Angelini, Justice, Steven C. Hilbig, Justice.
OPINION BY: Karen Angelini
OPINION
MEMORANDUM OPINION
Alexis Ann Manley ("Manley") appeals the county court's judgment affirming an ad
ministrative order to suspend her driving privileges based upon her refusal to s
ubmit 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 a
lcohol upon Manley's breath. The officer administered several field sobriety tes
ts, 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 wa
s 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 driv
er's license; [*2] however, on November 17, 2005 when the hearing was schedule
d, Manley discovered that the arresting officer had not been subpoenaed to testi
fy. Manley requested and obtained a continuance in order to subpoena him. On Dec
ember 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 cal
l 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 offic
er's report into evidence at the previous hearing; n1 Judge Harvel stated she wa
s at a disadvantage because she had not listened to the tape of the prior hearin
g and Judge Beeler, who had been present at that hearing, was unavailable. Judge
Harvel indicated she would reset the hearing [*3] so that she could review th
e tape and "[i]f the evidence was not admitted and the case was continued to all
ow the officer to appear, then [she would] dismiss the case, because . . . the n
otice 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 cont
inuance was granted to allow Manley the opportunity to question the officer, the
n she would reset the case again to allow the officer to be present.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -1
The record reflects that Judge Beeler did, in fact, admit the officer's report i
nto evidence.
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Nevertheless, on January 17, 2006, without hearing further testimony or evidence
, the Administrative Law Judge ("ALJ") issued an order authorizing the TDPS to s
uspend 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 be
en denied due process of law and further, the ALJ erred in admitting the officer
's report. On June 15, 2006, the [*4] matter was heard and, one month later, t
he trial court issued its order upholding the ALJ's administrative order suspend
ing Manley's license.
Manley appeals, arguing that she was denied due process of law in violation of A
rticle I, § 19 of the Texas Constitution and § 524.041 of the Texas Transportation C
ode n2 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).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -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 appe
al 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 ad
dresses the defendant's "right to subpoena an officer." See 1 TEX. ADMIN. CODE § 1
59.23 (2006) (State Office of Administrative Hearings, Hearing). Nevertheless, w
e construe Manley's arguments here liberally "to obtain a just, fair, and equita
ble 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).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*5] 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. CONS
T. AMEND. XIV, § 1; TEX. CONST. art. I, § 19. "Cross-examination is a safeguard esse
ntial to a fair trial and a cornerstone in the quest for truth. . . . Due proces
s requires an opportunity to confront and cross-examine adverse witnesses." Davi
dson 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 n
ot limited to trials, but applies to administrative hearings as well. See Tex. D
ep't of Pub. Safety v. Burrer, No. 04-03-00896-CV, 2005 Tex. App. LEXIS 3534, 20
05 WL1105181, at *3 (Tex. App.--San Antonio May 11, 2005, no pet.) (mem. op., no
t 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 Tex. App. LEXIS 9365, 2004 WL 2366934, at *5 (Tex. App.-- Houston [1st
Dist.] Oct. 21, 2004, no pet.) (mem. op., not designated for publication) (noti
ng that "the administrative suspension of a driver's [*6] license comports wit
h the requirements of constitutional procedural due process [when the defendant]
received notice of his suspension, an opportunity to be heard to contest it, an
d 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 fai
r play. State v. Crank, 666 S.W.2d 91, 94 (Tex. 1984); see also Ray v. Tex. Stat
e 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 suspi
cion 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 Tex. App. LEXIS 3534, 2005 WL 1105181,
at *3. The record reflects, however, that although Manley subpoenaed the office
r 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. ADMI
N. CODE § 159.23 (c) (7) [*7] .
TDPS responds that because Manley failed to make the proper objection to the off
icer's report and it was properly admitted, "[t]he officer did not have to appea
r on January 12[th]." n3 We disagree.
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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] suffic
ient." Moreover, the record reflects Manley's compliance with TEX. R. CIV. P. 17
6.5 (b) (2).
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Section 159.23 of the Texas Administrative Code provides that "the defendant sha
ll have the right to subpoena the officer in accordance with § 159.17 of this titl
e (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 offi
cer 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 s
how; however, [*8] Manley objected to the report being admitted as evidence ba
sed on hearsay and not on the officer's failure to appear at the scheduled heari
ng. n4 Nevertheless, the Administrative Code provides that Manley may subpoena t
he officer and, presumably, examine him. See id. And while Judge Harvel indicate
d at the final hearing that Manley would be afforded this opportunity, clearly M
anley was denied this fundamental right. Burrer, 2005 Tex. App. LEXIS 3534, 2005
WL 1105181, at *3.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -4
According to case law, the DPS Form DIC-23, referred to here as the officer's re
port, is not hearsay and is properly admissible as a public record pursuant to T
EX. R. EVID. 803 (8). See Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 80
3-04 (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.); Clem
ent v. Tex. Dep't of Pub. Safety, 726 S.W.2d 579, 581 (Tex. App.--Fort Worth 198
6, no writ).
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[*9] TDPS cites to Ochs v. Martinez, 789 S.W.2d 949, 951 (Tex. App.--San Anton
io 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 tha
t Manley does not have a right to confront witnesses in an administrative hearin
g. 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. n5 Ochs, 789 S.W.2d at 951. The ap
pellant in Ochs argued that the Family Code provision permitting videotaped test
imony of a child 12 years of age or younger alleged to have been abused was unco
nstitutional under the Sixth Amendment of the U.S. Constitution. Id. However, th
is court noted in Ochs that the Sixth Amendment "applies by its own terms only t
o '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 cros
s-examine witnesses in an administrative proceeding.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -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. § 10
4.002 (Vernon 2002).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[*10] Walter, on the other hand, does address the right to cross-examine witne
sses in administrative proceedings and more closely parallels the facts in the p
resent case; however, Walter clearly supports Manley's position rather than the
TDPS's. Texas Department of Public Safety v. Walter, 979 S.W.2d 22 at 26. In Wal
ter, the DPS appealed the trial court's judgment reversing an administrative ord
er suspending Walter's driver's license. Id. The trial court's decision was base
d, 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 Adminis
trative Code provides for admission of the officer's report, as well as the pres
ence of the officer at the administrative hearing, provided that the defendant s
ubpoenas 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 offic
er] [*11] failed to appear at the hearing." Walter, 979 S.W.2d at 26. The cour
t 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 exa
mine the arresting officer at the first setting, whereupon the hearing was reset
. Unlike Walter, the record here further reflects that Manley then subpoenaed th
e officer, who failed to appear at the second setting. Finally, at the last sett
ing, Manley again sought to examine the officer but was denied the opportunity t
o do so when the officer again failed to appear despite being subpoenaed a secon
d time by Manley at the court's request. As such, the record before this court r
eflects 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 Tex. Ap
p. LEXIS 3534, 2005 WL 1105181, at *3. Manley's issue is granted.
CONCLUSION
Accordingly, we reverse the judgment of the trial court and remand this matter t
o the county court, ordering that it be remanded to the State Office of Administ
rative Hearing ("SOAH") for further proceedings consistent with this opinion.
Karen Angelini, Justice