1 TAC §§159.4, 159.5, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 159.19, 159.21, 159.23, 159.25, 159.27, 159.29, 159.33, 159.35, 159.37, 159.39, 159.41
The State Office of Administrative Hearings (SOAH) adopts
amendments to §§159.11, 159.13, 159.15, 159.17, 159.23, 159.25,
159.27, and 159.37, with changes to the proposed text as published in the
September 11, 1998 issue of the
Texas Register
(23 TexReg 9181-9186). New §159.4, and amendments to §§159.5,
159.7, 159.9, 159.19, 159.21, 159.29, 159.33, 159.35, 159.39 and 159.41, are
adopted without changes to the proposed text and will not be republished.
The new section and the amendments are necessary to set out procedures
to be used in conducting administrative drivers' license suspension hearings,
(commonly known as Administrative License Revocation, ALR, hearings). SOAH's
objective in adopting these sections is to maintain just and impartial forums
and procedures that will provide both parties a fair opportunity to present
their respective positions and to enable impartial decision makers to promptly
issue decisions based on the evidence presented. SOAH has conducted approximately
60,000 ALR hearings since the ALR statute went into effect in January, 1995.
This experience has led SOAH to conclude that some of the existing sections
need clarification or modification. The new section and the amendments are
the result of suggestions from Administrative Law Judges (ALJs) and attorneys
who regularly appear in ALR hearings throughout the state.
The adopted sections will expedite the hearing of ALR cases, yet protect
the procedural and substantive rights of the parties, consistent with statutory
provisions. Specifically, the sections provide clear and specific procedures
for hearing participants to follow; give appropriate notice of required filings;
and provide notice of certain statutory interpretations made by the SOAH.
By providing uniform procedures, these sections also ensure that ALR cases
are conducted in a fair, consistent, and efficient manner throughout the state.
This adoption includes several changes to the proposed text as published.
In §159.11, the adopted section slightly changes the language of subsection
(b) to provide more precise language and to correct a punctuation error in
subsection (e).
In §159.13, the adopted section changes the language that establishes
the earliest date by which a request for production may be filed. The language
of the section is also changed to clarify that a party who subpoenaed a witness
may request a continuance to enforce the subpoena if the witness does not
appear. An additional change allows the department the right to discovery.
Paragraph (2) of this section was changed to delete the word "blood."
Section 159.15 is changed to eliminate redundant language in subsections
(a) and (d). The section is also changed to reflect that a defendant may request
the breath test operator, the breath test technical supervisor "or both."
A third change is made to clarify circumstances under which the breath test
operator or breath test technical supervisor may be subpoenaed in refusal
cases, and to give guidance to ALJs in reviewing subpoena requests in those
cases.
In §159.17(a), language is added to establish how the five calendar
days prior to the scheduled hearing are counted when the request for subpoena
is due or filed on a weekend or state holiday. In subsection (e) of this section,
changes are made to more clearly indicate when ALJs may deny requests for
subpoenas. A requestor must show good cause that a witness or document is
relevant to a genuine issue in the case before a subpoena will be issued for
that witness or document. A new subsection (h) is added to this section to
indicate who should notify a subpoenaed witness of a new hearing date if a
hearing is continued and the witness is obligated to attend.
Section 159.23(a)(4) is changed to read as originally written. The provision
indicating that a judge may limit presentation times has been deleted.
Section 159.25(c) was changed to define the number of days in advance of
a telephone hearing within which copies of exhibits must be filed with SOAH
and the other party in order to be introduced and admitted at a telephonic
hearing. The time is changed from one calendar day to two business days.
Section 159.27(a) is changed to require proof by the department that proper
notice of hearing was given to the defendant and to indicate how such proof
may be made. Additionally, subsection (b) is changed to detail procedures
for handling a motion to vacate and to indicate that if an ALJ finds good
cause for a defendant's failure to appear and notify the Office that defendant
would not appear at the scheduled hearing, the ALJ shall vacate the default
order.
Section 159.37(d) was changed to retain language indicating that appellant
is required to send the opposing party a copy of the certified appeal petition.
The new section and amendments, as adopted, establish rules of practice
and procedure for ALR hearings held state-wide before the State Office of
Administrative Hearings, pursuant to Texas Transportation Code, Chapters 522,
524, and 724. The reason for adopting new §159.4, Computation of Time,
is to set out how time will be computed in ALR cases. Following are the reasons
for adopting the amendments: §159.5 (concerning Notice of Suspension)
is adopted to update the statutory citations; §159.7 (concerning Request
for Hearing) is adopted to clarify the defendant's right to waive a request
for hearing; §159.9 (concerning Scheduling of Hearing) is adopted to
clarify the rights and duties of the parties in the scheduling of hearings
and the filing of pleadings; §159.11 (concerning Continuances) is adopted
to specify the contents of a motion for continuance and to set out the department's
obligation to give notice of five day continuances granted by the department;
§159.13 (concerning Pre-Hearing Discovery) is adopted to clarify the
responsibilities of the defendant and the Texas Department of Public Safety
(the department) when they make discovery requests or respond to discovery
requests; §159.15 (concerning Request for Appearance of Department's
Witnesses) is adopted to clarify the time frame, prior to the hearing, for
requesting the department's witnesses and to indicate when the witnesses may
be subpoenaed in refusal cases; §159.17 (concerning Request for Subpoenas)
is adopted to clarify the number of days before the hearing date by which
a request for subpoena must be filed and also to specify when a request for
a subpoena will be denied; §159.19 (concerning Issues) is adopted to
clarify the existing rule for hearings involving minors; § 159.21 (concerning
Issues in Cases Involving Commercial Drivers' Licenses) is adopted to adjust
the wording to track the statute; §159.23 (concerning Hearing) is adopted
to update the statutory citations, to specify which affidavits or documents
may be used in lieu of live testimony, specify guidelines concerning interpreters,
and to indicate how the Office maintains case files; §159.25 (concerning
Telephone Hearings) is adopted to clarify filing requirements and deadlines
applicable in telephone hearings; §159.27 (concerning Failure to Attend
Hearing and Default) is adopted to set out the necessary proof that is required
prior to the entry of a default order and the procedures and proof requirements
that must be met for an ALJ to vacate a default order; § 159.29 (concerning
Hearing Disposition) is adopted to update the statutory citations; §159.33
(concerning Effective Date of Suspensions) is adopted to clarify the effective
date of suspensions and to update citations; §159.35 (concerning Proceedings
Open to the Public) is adopted to clarify the existing section; §159.37
(concerning Appeal of Judge's Decision) is adopted to reinforce the requirement
that appellants are to send copies of the certified appeal petition to the
Office in Austin and to the opposing party; §159.39 (concerning Stay
of Suspension) is adopted to update the statutory citations and to more closely
track the statute; and §159.41 (concerning Other Office Rules of Procedure)
is adopted to update the list of other SOAH sections under §155 of this
title (relating to Rules of Procedures) that apply in Administrative License
Suspension Hearings.
Written comments were received by SOAH through October 11, 1998, and a
public hearing was held on October 16, 1998. Written and oral comments were
received from Mr. Ronald Knight and the Texas Department of Public Safety
(the department). Oral comments only were received from Mr. Lawrence G. Boyd,
representing the Dallas Criminal Defense Lawyers Association, Mr. Keith Hampton,
representing the Austin Criminal Defense Lawyers Association and from Mr.
Stuart Kinard, an attorney in private practice. Following is a summary of
the substantive comments.
GENERAL COMMENTS: All parties agreed that the proposed sections which set
out the procedures to be used in conducting administrative license suspension
hearings are necessary and appropriate. The parties generally agreed with
the sections as proposed; however, there were several proposed changes that
generated a great deal of discussion. The comments are detailed below.
COMMENT RELATING TO §159.7: The department suggested the language
in §159.7(b)(1) should be removed because the department no longer authorizes
use of a standard form for persons requesting a hearing. As no amendment to
this section was proposed, comments related to it are unnecessary. Nevertheless,
SOAH disagrees with the suggested change. The section, as it currently reads,
tracks almost verbatim the department's rule found at 37 TAC §17.8(1)
and (2) (relating to Hearing Requests). The department's rule clearly indicates
the department should provide a form to be used in requesting a hearing.
COMMENT RELATING TO §159.9: The department suggested that a certificate
of conference contained in proposed §159.9(f) places an undue burden
on the department and should be changed or removed. This requirement would
apply to motions for continuance which are frequently filed. In this subsection,
SOAH provides that it may authorize a continuance if a good reason is shown
and the parties agree to the request. In such cases, the ALJ should not have
to inquire to determine whether or not the motion is opposed. The inquiry
should be made by the proponent of the motion, and the results should be indicated
in the certificate of conference. SOAH disagrees with the department's suggestion
which would shift to the ALJ the burden of contacting the other party. This
would not only require the ALJ to contact one party, the ALJ would have to
find a time when both the department and the defense attorney would be available
for a conference concerning the motion. In addition to the amount of time
this procedure would consume, it could also result in an appearance of ex parte
communications. SOAH recognizes that ex parte
contact is only prohibited as to communications
involving issues of law or fact, but it is aware that an ALJ's contacting
one party or the other to determine if a party is available for a hearing
on a motion may give the appearance of
ex parte
contact. SOAH strives to avoid even the appearance of impropriety.
The department also suggested that the proposed subsection may negate the
requirement that a party requesting a subpoena must notify the department.
Section 159.17 specifically requires a person requesting a subpoena to send
a copy of the request to the other party. Section 159.9(f) does nothing to
negate that requirement. In fact, it expressly provides that neither the requirement
for a certificate of conference nor a certificate of service applies to a
subpoena request.
One individual commented that a hearing set in a remote location should
not constitute good cause
per se
under §
159.9(e) for not scheduling a hearing within 40 days after the notice of suspension.
The individual noted that in some remote locations, (a site at which there
is no permanent SOAH Office, such as Denton), hearings are held frequently, e.g.
, twice a week; consequently scheduling would
not necessarily be difficult. SOAH disagrees with the individual that the
scheduling of hearings in remote sites should not be considered good cause
for scheduling hearings outside the 40 day period. ALJs travel to remote sites
to conduct hearings because the statute requires hearings to be held within
a certain geographic distance of the place where the driver is arrested; hearing
facilities at remote sites are not always available when needed and when they
are, the number of cases that can be heard is often limited. For these reasons,
SOAH declines to change this section as proposed by the individual.
COMMENTS RELATING TO §159.11: The department commented that notifying
a defendant of a continuance as required by §159.11(b), which refers
to five day continuances, would be redundant since the defendant would have
made the initial request for continuance. SOAH believes the notification is
necessary because the fact that a request was filed does not necessarily mean
it was received or that a continuance was granted.
The department also suggested that requiring a certificate of conference
places an undue burden on the party requesting the continuance. This argument
is addressed in SOAH's response to the department's objections to §159.9(f),
as referred to previously. In addition, SOAH believes that such a requirement,
which is standard in many other civil cases, is not unduly onerous.
The department also disagreed with the requirement that the party seeking
a continuance give three future dates when the parties would be available
for hearing. The department states it would be available for almost all hearing
dates; if this is the case, the department need only consult with the defendant
to arrive at dates when both parties would be available for hearing. SOAH
disagrees that requiring these dates would delay the ALR hearings process.
To the contrary, SOAH's experience is that often, dates blindly chosen conflict
with other court settings of defense counsel and frequently lead to further
continuances. If a proponent selects three dates for scheduling of the hearing,
that party, in effect, assures there is no conflict on those dates. The ALJ
would consider this assurance if the proponent later complained of a conflict.
Two individuals recommended that certain aspects of rule §159.11 be
expanded. One of the individuals suggested the department not only prove good
cause as to the availability of the technician, but also show good cause for
not asking for the continuance 48 hours prior to the hearing. The other individual
suggested that the ten day continuance for a medical illness be relaxed. SOAH
disagrees with the first individual's suggestion as the section tracks the
provisions of the organic statute, see Texas Transportation Code, §524.032(c),
and §524.039(b). The second individual's suggestion as to increasing
the time for a continuance due to illness would directly conflict with the
statute which specifies a ten day period. SOAH does not believe that imposing
additional requirements that are not in the statute or adding language that
conflicts with the statute is appropriate. Although the second individual's
suggestion will not be adopted, the example the individual presented may be
considered under §159.11(e), which allows a continuance to be granted
in the sound discretion of the judge.
The first individual also recommended that if the three dates suggested
by the proponent were not acceptable, that the ALJ be required to call the
proponent and get three more dates. SOAH disagrees with this suggestion for
the same reasons discussed previously which relate to problems with the appearance
of
ex parte
communications. The individual's
suggestion could also considerably delay the rescheduling of hearings, and
could effectively eliminate SOAH's authority to reschedule ALR hearings when
necessary. It should be noted the ALJ will try to set the hearing on one of
the three dates suggested by the party whenever possible.
COMMENTS RELATING TO §159.13: The department commented that §159.13
should be modified to add a qualifier stating that the records must be reasonably
calculated to lead to discovery of relevant and probative evidence. The qualifier
paraphrases the language of the APA rule on discovery, which refers to evidence
that is "material to a matter involved in a contested case," rather than the
department's suggested language of "relevant and probative." SOAH believes
the department's language is too restrictive and would result in many arguments
about the meaning of the word "probative." For this reason, SOAH declines
to adopt the suggestion, and will continue to use the APA standard.
The department also suggested the section be modified to limit discovery
to records in the "actual possession of the department's ALR or DIC subdivisions."
SOAH declines to adopt this suggestion because it is too restrictive, ambiguous,
and subject to manipulation. SOAH also disagrees with the department's suggestion
that records in the possession of a trooper should not be covered by this
section because the records may not be in the actual possession of the DPS'
ALR division. There is nothing in the ALR statute that supports the department's
position on this point. In fact, Texas Transportation Code, Chapter 524 provides
that an arresting officer is to send the department a copy of the sworn report
that was prepared by the officer no later than the fifth business day after
the date of arrest. Chapter 724, of the Texas Transportation Code, contains
a similar provision. Thus, the intent of the legislature appears to have been
that the department would get the reports and documents,
e.g.
, breath test result or breath test technical supervisor's affidavit,
associated with a driver's arrest within a relatively short time following
the arrest. The statute clearly imposes a duty upon the officers who make
the arrests to prepare the pertinent reports and to send them to the department
in a timely fashion. After the time allotted for the officers to file the
reports, the defendants should be allowed to request such reports or documents
from the department. The revised pre-hearing discovery section is consistent
with the statutory framework.
The department also disagrees with the limitation of one continuance for
the department's failure to timely produce or supplement and states that it
is under no obligation to produce or supplement that which is not in the department's
possession; the department argues that under such circumstances, it has not
failed to comply with the law. The law to which the department refers is SOAH
rule at §159.13 of this title (relating to Pre-Hearing Discovery), as
it is currently written. The problem with this argument is that §159.13
is being changed to impose additional obligations on the department. The amended
section requires the department to notify the defendant that it has no documents
in its possession at the time it receives the request for production, if that
is the case. The department is required to supplement the response within
a set time after it receives the documents that the defendant had requested.
If the department does not comply with these new obligations, the section
allows for one continuance so that it may comply. Limiting the number of continuances
to one is included to enforce the duty to supplement and to expedite the hearings.
SOAH believes the department should be able to meet the new requirements as
it would have approximately 60 days within which to comply in most cases.
One individual commented that a defendant should not be limited to one
continuance to obtain documents that are necessary to the defendant's case.
The intent of this section is to limit the department to one continuance,
and, if the department does not produce the requested documents after that
one continuance, the ALJ could dismiss the case.
The department argues that the amended section is contrary to case law, Raesner v. Texas Department of Public Safety
, 982
S.W.2d 131 (Tex. App. Houston 1st Dist. 1998, rev. denied), which the department
believes, provides that a party must file a motion to compel to prevent waiver
of discovery rights. SOAH notes that the case law to which the department
refers interpreted a previously adopted section on pre-hearing discovery.
The amended section would supplant the earlier section and the court's interpretation
would not apply. It should also be noted the court, in that decision, recommended
that the defendant should have requested a continuance to obtain the discovery.
The amended section provides for such a continuance to allow the department
an opportunity to supply the discoverable documents to the defendant.
All of the representatives of the defense bar protested the fact that the
section requires a request for production to be made after the request for
hearing, stating that many times the request for production is made at the
same time as the request for hearing. SOAH agrees with this comment and has
changed the language to state that the request for production cannot be filed
prior to the request for hearing. The section also expressly states the request
for production cannot be filed prior to the time officers are required to
file their reports with the department, which is five business days from the
date of the notice of suspension.
The department also noted that in § 159.13(2), SOAH is trying to differentiate
between inspection records and maintenance records and that this is problematic.
The change in this section is to reflect SOAH's experience that records relating
to the operation or maintenance of intoxilyzers are sometimes called by different
names, depending on the Breath Test Technical Supervisor (BTTS) on any given
case. Some of the BTTSs refer to the records as "inspection" rather than "maintenance"
records; while others call them "repair" records. SOAH's intent in this paragraph
is to address these differences in nomenclature and make it clear that, whatever
they may be called, these records are to be provided to a defendant when properly
requested. Furthermore, because the instrument referred to in this section
is an intoxilyzer, which tests breath specimens, SOAH is deleting the reference
to a blood specimen.
Three defense attorneys suggested the words "actual possession" should
be deleted from §159.13(2). SOAH disagrees with this suggestion and believes
the language is appropriate because not all BTTSs are employees of the department.
If a BTTS is not an employee of the department, the defendant has a right
to obtain records in the manner set out in §159.17. The same defense
attorneys argued the department could revoke the certifications of the BTTSs
if they did not produce the necessary records. SOAH does not have authority
to require or suggest to the department that it should threaten BTTSs with
loss of certification for non-compliance with ALR requirements.
One individual requested that none of the proposed amendments be adopted
until SOAH conducts a thorough investigation into the department's practices
in ALR cases. SOAH does not have authority to investigate agencies or attorneys
who practice before it. SOAH is not an investigatory agency. If the individual
believes the department has acted improperly or illegally, he should refer
his allegations to an appropriate agency, not to SOAH. However, if he believes
the department's actions are inconsistent with SOAH's rules of procedure,
he may use those rules to obtain relief. In addition, if he believes the ALJ
made erroneous rulings or decisions, he is free to file an appeal, as is permitted
by statute.
The same individual also asserted that amended §159.13 is unconstitutional.
He argued that it shifts the burden of proof in the case. The section does
not relate to substantive provisions; it gives procedural guidance involving
pre-hearing discovery. SOAH's intent in this section is to allow the review
of documents prior to the hearing to permit the defendant to prepare the defendant's
case. SOAH believes the section is a valid exercise of its statutory authority
and that it does not shift the burden of proof as to any of defendant's substantive
rights.
SOAH has inserted a penalty in this section. If the department does not
comply with production requests, the department cannot use the documents that
were not produced. In most instances, if the department cannot introduce the
documents, it loses the case. Under this section as adopted in 1994, if the
department is one day late and the hearing is three weeks from the time the
department complied, the department is not allowed to introduce the documents
into evidence. SOAH realizes that the "death penalty" is the least favored
remedy and has added a requirement in the amended section that defendant show
harm due to the untimely production. If there is no harm, the substantive
rights of the defendant are not affected and the documents can be introduced.
It is SOAH's experience that some practitioners use the current discovery
rule as a device to easily win ALR cases. This was not the intent when the
rule was originally adopted and it is not the purpose of the discovery process.
The intent of the section, as amended, is to guarantee that the defendant
is afforded discovery to prepare his case, while not imposing the ultimate
penalty on the department when it complies with the discovery process, albeit
one or two days late.
The department asserted the rule is one sided, and that it too should have
the right to discovery. SOAH concurs and has added paragraph (5) to give the
department that right.
COMMENT RELATING TO §159.15: It should be noted there were two editing
errors in this section as originally proposed. The first was the inclusion
of the last two sentences which appeared at the end of subsection (a); both
sentences should be deleted, as they are incorporated in the new subsection
(d), which was added to §159.15.
Secondly, in subsection (b), the phrase "or both" following the list of
witnesses the department is required to produce without a subpoena was inadvertently
dropped. The language of subsection (b) should be: "Upon receipt of a timely
request for the appearance of the breath test operator, the breath test technical
supervisor, or both, the department shall ensure the witness(es) appear at
the hearing." Two of the commenters pointed out the phrase had been omitted
from the proposal and SOAH agrees the statute permits both witnesses to be
requested.
SOAH added a new subsection (d) to provide clarification as to when the
Breath Test Operator (BTO) and Breath Test Technical Supervisor (BTTS) could
simply be requested from the department and when they would need to be subpoenaed.
One commenter's statements indicate the subsection did not sufficiently clarify.
For that reason, SOAH is modifying the subsection in its final form so its
intent may be clearer. SOAH agrees with the commenter that Chapter 724 of
the Texas Transportation Code does not give defendants the right to request
the BTO or BTTS, as cases under that chapter are refusal cases in which a
BTO or BTTS would not normally be involved. Nevertheless, SOAH is aware that
in some instances, there is a question of fact as to whether the driver indeed
refused to give the specimen. It is those instances that this subsection addresses.
SOAH added explanatory language to clarify the point.
COMMENT RELATING TO §159.17: Amendments to §159.17, although
minor, produced numerous comments from the department and from defense attorneys.
One of the commenters stated that defining the five day time period within
which a party may request a subpoena as "five calendar days" would create
a hardship for the department who would have a very short time to contact
witnesses to assure appearance. The commenter urged SOAH adopt the "five business
days" definition instead.
SOAH disagrees with this suggestion for several reasons. First, ALR hearings
are intended to proceed on a "fast track," that is, the legislature intended
for these hearings to be held soon after the notice of suspension (NOS) is
served on the driver. SOAH believes it important to follow the legislative
intent and conduct ALR hearings expeditiously,
i.e.
, within 40 days of the date the NOS is served on the driver. As the
40 day period (between service of NOS and hearing date) in which to schedule
a hearing is very short, SOAH believes it is more appropriate to count the
five days prior to the hearing within which to request a subpoena as five
calendar days to allow defense attorneys time to review the department's documents
and still have time to request a subpoena for witnesses who may be necessary.
If the request time is measured as five business days, there may not be sufficient
days between the production of documents and the time by which a subpoena
must be requested. For example, in a four day weekend, a requirement of five
business days could create a situation where the request for subpoena had
to be made before the driver received the notice of hearing. To cover those
situations, SOAH added a provision which establishes how the days are counted
if a request is filed or due on a weekend or a holiday,
i.e.
, the request will be deemed received on the next business day.
If a subpoena is served on one of those long holidays and a party cannot contact
a witness or assure his appearance, the party may explain the circumstances
in a motion for continuance. Paragraph (2) under subsection (e) of this section,
caused considerable comment and disagreement. The paragraph delineates circumstances
in which an ALJ may refuse to issue a subpoena. SOAH did not intend to add
additional requirements to support the issuance of a subpoena. Thus, establishing
"good cause" that the witness or documents pertain to a genuine issue in the
case continues to be the standard. This conforms to the provisions of the
APA. SOAH's revision of paragraph (2) reinforces this standard.
A new subsection (h) was added to incorporate one commenter's suggestion
that a party be designated as responsible for notifying a subpoenaed witness
of a new hearing date.
COMMENT RELATING TO §159.23: One commenter suggested that §159.23(a)(1)
be changed to require SOAH to attempt to harmonize the Administrative Procedure
Act (APA) and 1 TAC §159, when there is a conflict between the two. SOAH
believes that many ALJs already make this effort. However the ALR statute,
as originally enacted, provides that SOAH "shall adopt rules that may conflict
with the APTRA (Article 6252-13a, Texas Civil Statutes, predecessor to the
APA), as necessary to expedite the hearings process within the time limits
required by this article and applicable federal funding guidelines." (see
Texas Civil Statutes, Article 6687b-1(7)(p)). Therefore, SOAH declines to
adopt this suggestion. Two individuals and the department expressed concern
that §159.23(a)(4) could result in unfair limitation of the parties'
right to fully present their positions. The department also sought assurances
that the provision would be "enforced uniformly throughout the state." SOAH
agrees with these comments and has stricken the provision which allowed a
judge to reasonably limit the presentation time. The section will remain as
originally adopted in 1994.
With regard to §159.23(c)(6), one of the commenters suggested that
the section be changed to require the department to show good cause for not
requesting a continuance 48 hours prior to the hearing. SOAH disagrees that
the requested change should be made, as the amendment was made to more closely
track the language in Texas Transportation Code §524.038(d) and §524.039(b).
Imposing this additional requirement in this section would be an inappropriate
attempt to modify the enabling statute. In addition, the question of when
the department could get a continuance is appropriately addressed in §159.11(d).
With regard to §159.23(c)(7), one commenter indicated that the form
of the "sworn report" should comply with the description of an affidavit pursuant
to Texas Government Code §312.011. The commenter stated his concern that
amending the language from "affidavit concerning probable cause to arrest..."
in §159.23(c)(6) to "sworn report of relevant information..." in §159.23(c)(7)
would erroneously broaden the admissibility of this report. SOAH disagrees
with the comments and arguments advanced that the peace officer's report should
meet the legal requirements that attach to affidavits. Chapter 524 of the
Texas Transportation Code refers to a peace officer's "sworn report," not
to an affidavit. In fact, this subsection was amended to more closely track
the language in Texas Transportation Code §524,011(a)(2)(B) and §524.011
(b)(1-4). The latter section provides the required report must: 1) identify
the arrested person; 2) state the arresting officer's grounds for believing
the person committed the offense; 3) give the analysis of the specimen; and
4) include a copy of the criminal complaint filed in the case. The statute
refers to a "sworn report," not to an affidavit. SOAH's amendment to the originally
adopted subsection deleting the reference to an affidavit is intended to conform
the section to the statute. The admissibility of the sworn report is based
on its status as a public record per case law,
Porter
v. Texas Department of Public Safety
, 712 S.W.2d 263 (Tex. App. San
Antonio 1986), and not on any perceived similarity to an affidavit. Furthermore,
the statute specifies the information that is to be included in the report
is "information relevant to the arrest" and then explicitly lists what information
that is.
One individual argued that §159.23(c)(7), which allows a sworn report
to be admitted into evidence as a public record, violates the defendant's
right to cross-examine a witness. SOAH disagrees that that subsection unfairly
restricts a party's right to examine a witness. If a party believes that it
is necessary or prudent to call an officer as a witness, that party is entitled
to subpoena the officer in accordance with §159.17. The full text of
§159.23(c)(7) provides a remedy when an officer who was subpoenaed does
not appear without a showing of good cause: in that instance, the sworn report
of the officer would not be admitted into evidence.
One individual sought clarification of §159.23(c)(8), asking whether
it allowed an ALJ, on his/her own motion, to allow the testimony of a witness
to be taken by telephone, without the consent of both parties. SOAH intends
this subsection to be consistent with Texas Transportation Code §524.034(2),
which provides that a hearing may be held "with the consent of the person
and the department, by telephone conference call." Subsection (c)(8) does
not change the requirement that all parties must consent before a witness
in a non-telephonic hearing may be allowed to testify by telephone.
COMMENTS RELATING TO §159.25: Two individuals expressed concern that
§159.25(c), requiring copies of exhibits to be offered in a telephonic
hearing to be filed two days prior to the hearing, now required filing only
one calendar day prior to the hearing. First, it should be clear that SOAH
does not intend §159.25(c) to be a substitute for §159.13 (relating
to Pre-Hearing Discovery). Second, the primary intent of this subsection is
to assure that the ALJ and the parties have all potential exhibits before
them at the time of the hearing, to avoid delays that would result otherwise.
Based on this latter interest, SOAH agrees with the individuals and intends
that this not be a substantive change from the original section's two day
requirement. All potential exhibits in telephonic hearings should be filed
with SOAH and the opposing party at least two days prior to the hearing. The
subsection has been corrected to reflect this.
COMMENTS RELATING TO §159.27: The department submitted a replacement
for §159.27 in its entirety. The department's proposal includes language
regarding:(l) a defendant's obligation to appear for hearings; (2) a narrow
definition of adequate notice; (3) a definition of what constitutes failure
to appear; (4) several prohibitions against contacting a defaulting party;
and (5) several mandatory obligations imposed on ALJs related to what action
they may or must take in default circumstances.
SOAH agrees with the department's comments that procedures for entering
default orders and setting them aside must be uniform and consistently applied
throughout the state. SOAH appreciates the suggestions made by the department,
but declines to adopt them as proposed. However, SOAH has incorporated much
of the substance of the department's proposal in the revisions made to the
section.
As adopted, the section expressly provides the department must prove that
proper notice of hearing was given to the defendant before a default order
will issue. It requires the department to provide proof that the notice that
was sent to the defendant, was sent to the most recent address that the department
has for the defendant; introducing only a copy of the notice of hearing that
was mailed to the defendant would not be sufficient. To prove proper notice,
the department would have to prove that the notice was timely mailed to defendant's
correct and latest address. That means the department may have to introduce
a copy of the defendant's request for hearing, copy of the notice of suspension
or any other document that contains the latest address of the defendant. If
the department proves proper notice was given and the defendant fails to appear
when the case is called on the docket, the ALJ will enter a default order.
The section as adopted contains no provision whatsoever that requires SOAH
or the department to call the defendant or the defendant's attorney to verify
that proper notice was given. If the department's evidence is sufficient to
establish that proper notice was given, there will be a rebuttal presumption
that the defendant received notice of the hearing and simply failed to appear.
No one is required to call and verify. Additionally, the adopted section provides
specific procedures for vacating a default order. It maintains the original
time frame within which a motion to vacate must be filed, and also sets out
the actions that a judge will take upon receipt of the motion,
i.e.
, set the motion for hearing and notify the parties of the setting.
Once the hearing on the motion is held, the judge has two options: grant the
motion because good cause was established and set the matter for hearing,
or deny the motion because good cause was not established. SOAH agrees with
the department and with the three individuals, who urged that if an ALJ finds
good cause for the defendant's failure to appear, the ALJ must vacate the
default order and reset the matter for hearing; the revised subsection (b)
reflects that change. The revised procedures in the adopted section provide
parties and judges throughout the state with unambiguous guidelines and procedures
on how cases involving defaults will be handled. SOAH believes all affected
parties will benefit from this change.
One individual expressed concerns regarding subsection (b): specifically,
he asked whether there would be any relief for a defendant who was unaware
of the scheduled hearing and who received the default order later than five
days following the ALJ's entry of the order. He asked that SOAH include a
provision addressing that possibility. Texas Transportation Code §524.041
provides that a party who disagrees with an ALJ's order can file an appeal
in the county court at law in which the defendant was arrested. In addition,
§524.043 of the Texas Transportation Code provides that if the county
court at law is satisfied that additional evidence is material and there were
good reasons for the failure to present it in the proceeding before the ALJ,
the court may remand the case to the ALJ for taking of additional evidence.
Section 159.37 of this title (relating to Appeal of Judge's Decision) addresses
the procedure by which this remedy may be achieved. SOAH does not believe
it is necessary to further modify §159.27 to incorporate this procedure.
COMMENT RELATING TO §159.37: One individual inquired whether deleting
the language, "certified by the clerk of the court in which the petition is
filed," was a substantive change to §159.37(d). SOAH intends no substantive
change to this subsection. The intent of the change is merely to simplify
and condense the language. The subsection as revised requires an appellant
to file a copy of the certified petition with the Office in Austin.
The department commented that deletion of the final clause in subsection
(d) which indicated a copy of the petition should also be sent to the opposing
party might result in
pro se
defendants not
sending the department a copy of the petition. SOAH agrees that this deletion
could lead to misunderstandings. For that reason, SOAH will retain the language
setting out that a copy of the petition must also be sent to opposing party.
SOAH was given jurisdiction to conduct ALR hearings beginning on January
1, 1995, pursuant to Texas Civil Statutes, Articles 6687b-1 and 6701l
-5. As part of the state's continuing statutory
revision program begun by the Texas Legislative Council, the legislature in
May, 1995, repealed and recodified the original ALR statutes; the recodification
went into effect on September 1, 1995, as Chapters 524 and 724, respectively,
in the Texas Transportation Code. The legislature specifically mandated that
SOAH and the department implement rules to administer these hearings. Texas
Transportation Code §524.002(a) and §724.003 state: "The Department
and the State Office of Administrative Hearings shall adopt rules to administer
this chapter." The new section and the amendments to the existing ALR sections
are part of SOAH's continuing effort to improve the manner in which SOAH conducts
these hearings and to provide clear guidance to hearing participants on hearing
requirements.
The following statutes are affected by this adopted chapter:
Texas Transportation Code, Chapters 522, 524, 724; the Texas Government Code,
Chapters 2001 and 2003; and Texas Penal Code, Chapter 49.
§159.11. Continuances.
(a)
(No change.)
(b)
The department shall continue a hearing once, if the department
receives a request for a continuance from the defendant no later than five
calendar days before the date of the scheduled hearing. The department shall
reschedule the hearing to a date no sooner than five days after the scheduled
hearing date, unless the parties otherwise agree. The department shall immediately
notify the defendant and the Office of a continuance that was granted or denied
under this subsection.
(c)
A Judge may grant the defendant one additional continuance,
for a period not to exceed ten days, if the defendant establishes a bona fide
medical condition that prevents the defendant or the defendant's attorney
from attending the hearing.
(d)
A Judge may grant the department a continuance, if:
(1)
(No change.)
(2)
the department establishes good cause that one or
more witnesses indicated in § 159.15(a) of this title (relating to Request
for Appearance of Department's Witnesses) or § 159.17(c) of this title
(relating to Request for Subpoenas) cannot appear at the scheduled hearing.
(e)
The granting of continuances shall be in the sound discretion
of the Judge, provided however, that the Judge shall expedite the hearings
whenever possible. A party requesting a continuance shall supply three dates
during which the parties would be available for rescheduling of the hearing,
which dates, the Judge will consider in resetting the case. Failure to include
a certificate of service, a certificate of conference, or supply three alternative
dates may result in denial of the continuance request or subsequent continuance
requests in the same case.
§159.13. Pre-Hearing Discovery.
The scope of pre-hearing discovery in these proceedings is as follows:
(1)
A defendant shall be allowed to review, inspect and obtain
copies of any non-privileged documents or records contained in the department's
file or possession. All requests for discovery must be in writing and shall
be served upon the department as prescribed in 37 TAC § 17.16 (relating
to Service on the Department of Certain Items Required To Be Served on, Mailed
to, or Filed with the Department). The request for discovery may not be filed
with the department sooner than the date of the request for hearing, and may
not be filed sooner than five days from the date of the notice of suspension.
Upon a showing of harm by the defendant, and upon a showing of a proper request
for discovery, no document, in the department's actual possession, will be
admissible unless it was provided to the defendant within five business days
of department's receipt of the request for production. If the department does
not have any or all the documents in its actual possession, the department
shall respond within five business days of defendant's request, setting out
that the department does not have the documents in its actual possession.
The department has a duty to supplement all its discovery responses within
five business days from the time the department receives possession of the
discoverable documents. If a document is received by the defendant fewer than
seven calendar days prior to the scheduled hearing, the Judge shall grant
a continuance on the request of a party. The Judge may grant only one continuance
for the department's failure to timely produce or supplement.
(2)
If a request for inspection, maintenance and/or repair
records for the instrument used to test the defendant's specimen is made by
the defendant, and those records are in the actual possession of the department,
the department shall supply such records to the defendant within five days
of receipt of the request, provided however, that the records to be provided
shall be for the period covering 30 days prior to the test date and 30 days
following the test date. If the department fails to provide the properly requested
records, after the defendant has paid reasonable copying charges for the records,
evidence of the breath specimen shall not be admitted into evidence.
(3)
(No change.)
(4)
Notwithstanding paragraph (1) of this section, if
a party believes evidence from a third party is relevant and probative to
the case, the party may request issuance of a subpoena duces tecum pursuant
to § 159.17 of this title (relating to Request for Subpoenas) to have
the evidence produced at the hearing. If a person subpoenaed under this subsection
does not appear, the Judge may grant a continuance to allow for enforcement
of the subpoena. Should introduction of such evidence require special equipment,
the party seeking admission of the evidence shall be required to supply such
equipment. The Judge may condition the granting of the subpoena duces tecum
upon the advancement by the person requesting the subpoena of the reasonable
costs of reproducing the documents requested.
(5)
Notwithstanding anything to the contrary contained
in this section, the department has the right to request non-privileged documents
from the defendant. Except in cases where sanctions may be sought for abuse
of discovery under Chapter 155 of this title (relating to Rules of Procedures),
all requests from the department shall be made under the provisions of this
section.
§159.15.Request for Appearance of Department's Witnesses.
(a)
If no later than five calendar days before the date of
a scheduled hearing, the defendant files with the department and sends a copy
to the Office a written or facsimile transmission request for the presence
of the following witnesses, the department shall produce the requested witnesses
without the need for a subpoena:
(1)-(2)
(No change.)
(b)
Upon receipt of a timely request, which request must be
filed with the department pursuant to 37 TAC §17.16 (relating to Service
on the Department of Certain Items Required To Be Served on, Mailed to, or
Filed with the Department), for the appearance of the breath test operator
or the technical supervisor or both, the department shall ensure the witness(es)
appear at the hearing.
(c)
If a timely request for the breath test operator, the technical
supervisor or both is made and the witness does not appear at a scheduled
hearing, without a showing of good cause, an affidavit or other document signed
by such witness concerning the validity, reliability, or alcohol concentration
of the breath test results shall not be admissible as provided in § 159.23(c)(2)
of this title (relating to Hearings). If good cause is established, the department
is entitled to a continuance as provided in § 159.11(d)(2) of this title
(relating to Continuances).
(d)
Requests for witnesses under this subsection are limited
to cases under Chapter 524 of the Texas Transportation Code. However, in cases
under Chapter 724, Texas Transportation Code, if appropriate, e.g., if driver
contends he did blow, but the intoxilyzer malfunctioned and gave no test result,
or driver tried to blow, but due to a medical condition could not blow a sufficient
sample, etc., the defendant may subpoena the witnesses pursuant to §
159.17 of this title (relating to Request for Subpoenas). In Chapter 724
cases, ALJs shall closely scrutinize the good cause set out in defendant's
request for subpoena of such witness(es).
§159.17. Request for Subpoenas.
(a)
A request for the issuance of a subpoena to require attendance
of witnesses or the production of documents shall be in writing and must be
received by the Office at least five calendar days prior to the scheduled
hearing, (if the request is received on a Saturday, Sunday or state holiday,
it will not be deemed received until the next business day for purposes of
counting the required five day period). A copy of the request must be sent
to the department and shall contain:
(1)-(8)
(No change.)
(b)-(d)
(No change.)
(e)
The decision to issue a subpoena shall be in the sound
discretion of the Judge assigned to the case. The Judge shall refuse issuance
of a subpoena if the testimony or evidence to be offered:
(1)
(No change.)
(2)
if good cause has not been shown that the witness
or documents are relevant to a genuine issue in the contested case.
(f)-(g)
(No change.)
(h)
A subpoena issued by a Judge is in effect until the Judge
releases the witness. If a hearing is rescheduled and a subpoena is extended,
the party who subpoenaed the witness shall be responsible for notifying the
witness of the new hearing date.
§159.23. Hearing.
(a)
Procedures.
(1)
Hearings shall be conducted in accordance with the Administrative
Procedure Act (APA), Texas Government Code Chapter 2001, when applicable,
and with this chapter, provided that if there is a conflict between the provisions
of the APA and the provisions of this chapter, this chapter shall govern.
If a conflict exists between the provisions of this chapter and the statutory
provisions applicable to the case, pursuant to TexasTransportaion Code Chapters
522, 524, or 724, and these rules cannot be harmonized with the statute, the
statute controls.
(2)-(3)
(No change.)
(4)
The Judge shall limit testimony or any evidence which
is irrelevant, immaterial or unduly repetitious.
(b)
(No change.)
(c)
Witnesses and affidavits.
(1)
(No change.)
(2)
An affidavit, from the certified breath test technical
supervisor who is responsible for maintaining and directing the operation
of breath test instruments in compliance with the department's rule, concerning
the reliability of an instrument used to take or analyze a person's breath
specimen to determine alcohol concentration and the validity of the results
of the analysis shall be admissible without the appearance of the breath test
operator or the breath test technical supervisor. However, in a proceeding
under Chapter 522 of the Texas Transportation Code, the certified breath test
technical supervisor's affidavit is admissible only if the department serves
a copy of the affidavit on the defendant not later than the seventh day before
the date on which the hearing begins.
(3)
An affidavit submitted under paragraph (2) of this
subsection must contain statements regarding the reliability of the instrument,
the analytical results, and compliance with state law in the administration
of the Breath Alcohol Testing program.
(4)
An affidavit may be submitted in lieu of an appearance
at the hearing by the breath test operator, breath test technical supervisor,
or expert witness.
(5)
An affidavit of an expert witness contesting the reliability
of the instrument or the results is admissible.
(6)
An affidavit from the breath test operator, breath
test technical supervisor, or expert witness, whose presence is timely requested,
is inadmissible if the person fails to appear at the hearing without a showing
of good cause. If good cause for failure to appear is established, the department
is entitled to a continuance as provided in § 159.11(d)(2) of this title
(relating to Continuances).
(7)
An officer's sworn report of relevant information
shall be admissible as a public record. However, the defendant shall have
the right to subpoena the officer in accordance with § 159.17 of this
title (relating to Request for Subpoenas). If the defendant timely subpoenas
the officer and the officer does not appear at the scheduled hearing, the
officer's report shall not be admissible.
(8)
The Judge, on his or her own motion or on request
of a party and with the consent of all parties, may allow the testimony of
any witness to be taken by telephone, provided that all parties have the opportunity
to participate in and hear the proceeding. All substantive and procedural
rights apply to the telephonic appearance of such witness, subject to the
limitations of the physical arrangement.
(d)
Record of hearing:
(1)
(No change.)
(2)
The Office shall maintain a case file which shall
include all pleadings and evidence submitted by the parties and the Judge's
decision.
(3)
The Office shall maintain case files in accordance
with the terms of its Records Retention Schedule.
(e)
Interpreters.
(1)
Upon defendant's written request for an interpreter filed
with the Office and the department not less than seven days prior to the date
of the hearing, the Office will provide an interpreter for deaf, hearing-impaired,
non-English speaking defendants, or defendant's subpoened witnesses who appear
at the hearing. If defendant fails to make a timely request, the Judge may
provide an interpreter or may continue the hearing to secure an interpreter.
(2)
Interpreters for deaf or hearing-impaired parties
will be secured by the Office subject to the provisions of the APA §
2001.055.
(3)
A defendant who makes a request for an interpreter
pursuant to this section and fails to appear may be subject to costs incurred
by the Office in securing the interpreter or may be required to pay for securing
an interpreter for a subsequent hearing.
§159.25. Telephone Hearings.
(a)
Consent of the parties. The Judge may, with consent of
the parties and if the Office has been notified of a telephone hearing request
at least 14 days prior to the hearing date, conduct all or part of the hearing
on the merits by telephone, if each participant in the hearing has an opportunity
to participate in, and hear the entire proceeding. The Judge may conduct all
or part of a hearing on preliminary matters by telephone, on the court's own
motion, if each participant in the preliminary hearing has an opportunity
to participate in and hear the entire proceeding.
(b)
Procedural Rights and Duties. All substantive and procedural
rights and duties apply to telephonic hearings, subject only to the limitations
of the physical arrangement. The parties shall notify the Office of their
telephone numbers for the purpose of their appearance at the hearing. The
parties shall contact their respective witnesses to ensure their availability
for the hearing.
(c)
Documentary evidence. To be offered in a telephone hearing,
copies of exhibits should be marked and must be filed with the Office and
all parties no later than two business days prior to the scheduled hearing,
unless otherwise agreed by the parties.
(d)
Default. For a telephone hearing, the following may be
considered a failure to appear and grounds for default, if the conditions
exist for more than ten minutes after the scheduled time for hearing:
(1)
(No change.)
(2)
failure to free the telephone line for a hearing;
or
(3)
(No change.)
§159.27. Failure to Attend Hearing and Default.
(a)
Upon proof by the department that notice of hearing on
the merits was mailed to defendant's or defense counsel's latest known address,
if defendant has legal representation, and that notwithstanding such notice,
defendant failed to appear, defendant's right to a hearing on the merits is
waived. A rebuttable presumption that proper notice was given to the defendant
may be established by the introduction of a notice of hearing dated not earlier
than eleven days prior to the hearing date and addressed to defendant's or
defense counsel's latest known address, which address is reflected on defendant's
notice of suspension, request for hearing, driving record or similar documentation
presented by the department. Under those circumstances, the Judge will proceed
in defendant's absence and enter a default order.
(b)
If within five business days of the default, the defendant
files a written motion or statement with the Office and the department requesting
the default order be vacated because the defendant had good cause for failing
to appear and notify the Office in advance of the hearing, the Judge will
set the request to vacate default order for hearing and will ensure both parties
are notified of the time and place of said hearing, which may be conducted
by telephone. Upon hearing, if the Judge finds good cause, the Judge shall
vacate the default order and reset the matter for hearing.
§159.29. Hearing Disposition.
(a)
If the Judge finds that the department proved the requisite
facts as specified in Texas Transportation Code §§ 522.105, 524.035,
or 724.042 by a preponderance of the evidence, the Judge shall grant the department's
petition.
(b)
If the Judge finds the department did not prove all of
the requisite facts by a preponderance of the evidence, the Judge shall deny
the department's petition and the department shall not be authorized to suspend
or deny defendant's license for the conduct at issue.
(c)
(No change.)
§159.37. Appeal of Judge's Decision.
(a)-(c)
(No change.)
(d)
A person who appeals shall send a copy of the person's
certified petition to the main Office located in Austin, and to the opposing
party at its address of record.
(e)-(j)
(No change.)
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on February
10, 1999.
TRD-9900876
Amalija J. Hodgins
Deputy Chief Administrative Law Judge
State Office of Administrative Hearings
Effective date: March 2, 1999
Proposal publication date: September 11, 1998
For further information, please call: (512) 475-4931