Texas Department of Public Safety v. Johnathan Kennedy

NO. 12-22-00285-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

TEXAS DEPARTMENT OF PUBLIC § APPEAL FROM THE
SAFETY,
APPELLANT
§ COUNTY COURT AT LAW NO. 2
V.

JOHNATHAN KENNEDY, § ANGELINA COUNTY, TEXAS
APPELLEE
MEMORANDUM OPINION
The Texas Department of Public Safety (DPS) appeals from an order reversing a decision
by an administrative law judge of the State Office of Administrative Hearings (SOAH),
upholding the suspension of Johnathan Kennedy’s driver’s license. We reverse and render.

BACKGROUND
Officer Reagan Jordan of the Lufkin Police Department arrested Kennedy for driving
while intoxicated, 1 and DPS issued an administrative suspension of his driver’s license.
Kennedy contested the suspension by requesting an administrative hearing. At the hearing on
April 29, 2022, DPS moved to quash Kennedy’s subpoena of Jordan for untimely service, which
the administrative law judge (ALJ) granted. Jordan attempted to appear at the hearing using
Zoom, but technical problems with the platform prevented her attendance. The ALJ ultimately
found that the suspension was justified and on May 3, issued an order sustaining the suspension.
Kennedy subsequently appealed the decision to the Angelina County Court at Law.

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Eventually, the State dismissed the DWI charge against Kennedy. However, dismissal of a criminal
charge generally does not affect a driver’s license suspension; only an acquittal requires DPS to rescind a
suspension. TEX. TRANSP. CODE ANN. § 524.035 (West 2021). A dismissal only carries the weight of an acquittal
when jeopardy has attached, that is, after both sides have announced ready for trial and the defendant has pleaded to
the charging instrument. See Texas Dep’t of Pub. Safety v. Nielsen, 102 S.W.3d 313, 316 (Tex. App.—Beaumont
2003, no pet.); Texas Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 82 (Tex. App.—San Antonio 1997, no writ).

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At the hearing before the County Court at Law on August 30, over DPS’s motion to
quash Kennedy’s second subpoena of Jordan, the court permitted Officer Jordan to testify about
the circumstances surrounding her stop of Kennedy’s vehicle, the subsequent arrest, and her
technical difficulties in appearing at the administrative hearing via Zoom. The trial court
additionally viewed video footage from Jordan’s police car camera, although it did not explicitly
rule on the admissibility of either the testimony or the video footage. On September 29, the trial
court issued an order reversing the administrative decision.
DPS subsequently appealed. Kennedy, through counsel, filed a letter with this Court
indicating that he did not intend to contest this appeal, and has not filed a brief in opposition.

JUDICIAL REVIEW OF ADMINISTRATIVE DRIVER’S LICENSE SUSPENSION
In a single issue, DPS contends that the trial court erred both by hearing the testimony of
Officer Jordan and by reversing the ALJ’s decision without the administrative record before it.
Standard of Review
Judicial review of administrative driver’s license suspension decisions employs the
substantial evidence standard; this standard requires the reviewing court to decide not whether
the ALJ’s order was correct, but only whether the record demonstrates some reasonable basis for
the agency’s action. See Mireles v. Texas Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).
Administrative orders by state agencies are presumed valid and supported by substantial
evidence; the party contesting the decision has the burden to prove otherwise. See
Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998); City of El Paso v.
Pub. Util. Comm’n of Texas, 883 S.W.2d 179, 185 (Tex. 1994). The reviewing court must
affirm the ALJ’s decision if more than a scintilla of evidence supports it and may not substitute
its own judgment on the weight of the evidence on questions committed to the state agency’s
discretion. TEX. GOV’T CODE ANN. § 2001.174 (West 2021); see Mireles, 9 S.W.3d at 131.
Substantial evidence review presents a question of law. See Dyer v. Texas Comm’n on
Env’t Quality, 646 S.W.3d 498, 505 (Tex. 2022). Because the reviewing court has no discretion
in determining what the law is or applying the law to the facts, a court of appeals reviews a trial
court’s substantial evidence review de novo. See Texas Dep’t of Pub. Safety v. Valdez, 956
S.W.2d 767, 769 (Tex. App.—San Antonio 1997, no pet.); Texas Dep’t of Pub. Safety v. Struve,
79 S.W.3d 796, 800 (Tex. App.—Corpus Christi 2002, pet. denied).

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Applicable Law
When completing a judicial review of an administrative body’s decision, including an
administrative suspension of a driver’s license, the reviewing court is generally confined to
considering only the factual record made before the administrative agency. TEX. TRANSP. CODE
ANN. § 524.043(a) (West 2021); TEX. GOV’T CODE ANN. § 2001.175(a) (West 2021); see In re
Edwards Aquifer Auth., 217 S.W.3d 581, 586 (Tex. App.—San Antonio 2006, no pet.) (citing
Nueces Canyon Consol. Indep. Sch. Dist. v. Cent. Educ. Agency, 917 S.W.2d 773, 776 (Tex.
1996)). The party seeking judicial review is charged with offering the state agency’s record of
the administrative proceeding into evidence at the hearing before the reviewing court. TEX.
GOV’T CODE ANN. § 2001.175(d); see Nueces Canyon, 917 S.W.2d at 776; Texas Dep’t of Pub.
Safety v. Story, 115 S.W.3d 588, 597 (Tex. App.—Waco 2003, no pet.).
The reviewing court may only admit new evidence when it pertains to procedural
irregularities alleged to have occurred before the ALJ which are not contained in the record.
TEX. GOV’T CODE ANN. § 2001.175(a). If a party wishes to present other evidence that was not
before the agency at the previous proceeding, it must apply to the trial court to present that
evidence, and if the trial court finds that (1) the evidence is material, and (2) there existed good
cause for its absence from the record, then the court may order the party be allowed to present
the additional evidence before the administrative law judge. TEX. TRANSP. CODE ANN.
§ 524.043(a); TEX. GOV’T CODE ANN. § 2001.175(c).
Analysis
As the party seeking judicial review of an administrative order, Kennedy was required by
law to offer, and the trial court was required to admit, the administrative record into evidence as
an exhibit. See TEX. GOV’T CODE ANN. § 2001.175(d). The transcript of the August 30 hearing
shows Kennedy did not tender the administrative record into evidence. Further, DPS asserts, and
the appellate record before us confirms, that the administrative record was not before the trial
court at all.
Accordingly, the trial court erred when it permitted Officer Jordan to testify at the
hearing over DPS’s motion to quash. The Transportation Code required the trial court to base its
review on the record of the proceeding before the ALJ, “with no additional testimony.” TEX.
TRANSP. CODE ANN. § 524.043(a). Although the trial court could receive new evidence about
procedural irregularities that occurred before the ALJ, those procedural irregularities must also

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have been absent from the administrative record. See TEX. GOV’T CODE ANN. § 2001.175(a).
Here, much of Jordan’s testimony referenced the circumstances surrounding her stop of
Kennedy’s vehicle and the subsequent arrest rather than any procedural issues. And absent the
administrative record, we cannot determine whether any of the procedural issues raised in the
trial court were already contained in the administrative record. Moreover, even had Kennedy
applied to the trial court to present Jordan’s testimony as additional evidence, and the trial court
found both that the testimony was material and that its absence from the administrative
proceeding was for good cause, the trial court was not authorized by law to hear the testimony
itself, but only given discretion to order that Kennedy present the additional evidence before the
SOAH. TEX. GOV’T CODE ANN. § 2001.175(a); see Langford v. Emps. Ret. Sys. of Texas, 73
S.W.3d 560, 565 (Tex. App.—Austin 2002, pet. denied).
As previously stated, when determining whether an ALJ’s decision upholding a driver’s
license suspension is supported by substantial evidence, the reviewing court is limited by law to
considering only the factual record developed in the proceeding before the state agency. See
Edwards Aquifer, 217 S.W.3d at 586. When, as here, the administrative record is not before the
reviewing court, there is no evidence for the court to review, and no basis on which the court can
determine whether the ALJ’s decision was supported by substantial evidence. See Texas Dep’t
of Pub. Safety v. Lavender, 935 S.W.2d 925, 929–30 (Tex. App.—Waco 1996, writ denied);
Soliman v. Bd. of L. Examiners, No. 03-00-00169-CV, 2000 WL 1862658, at *2 (Tex. App.—
Austin Dec. 21, 2000, no pet.) (op., not designated for publication); Arreaga v. Bexar Cnty.
Sheriff’s Dep’t, 90 S.W.3d 899, 901–02 (Tex. App.—San Antonio 2002, no pet.). Having failed
to present the administrative record to the trial court, Kennedy cannot carry his burden to
demonstrate that the ALJ’s order is unsupported by substantial evidence or otherwise erroneous,
and the presumption that the findings and decisions of an administrative agency are valid and
supported by substantial evidence prevails. See City of El Paso, 883 S.W.2d at 185.
Accordingly, we hold that the trial court erred in reversing the ALJ’s decision to suspend
Kennedy’s driver’s license. We sustain DPS’s sole issue.

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DISPOSITION
Having sustained DPS’s sole issue, we reverse the trial court’s order reversing the ALJ’s
decision and render judgment upholding the administrative suspension of Kennedy’s driver’s
license.

BRIAN HOYLE
Justice

Opinion delivered March 31, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

MARCH 31, 2023

NO. 12-22-00285-CV

TEXAS DEPARTMENT OF PUBLIC SAFETY,
Appellant
V.
JOHNATHAN KENNEDY,
Appellee

Appeal from the County Court at Law No. 2
of Angelina County, Texas (Tr.Ct.No. 192-22-CV)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this Court that there was error in
judgment as entered by the court below and that same should be reversed and judgment rendered.
It is therefore ORDERED, ADJUDGED and DECREED by this Court that the judgment
of the trial court in favor of Appellee, JOHNATHAN KENNEDY, be, and the same is, hereby
reversed and judgment rendered upholding the administrative suspension of JOHNATHAN
KENNEDY’S driver’s license.
All costs in this cause expended both in this Court and the trial court below
be, and the same are, adjudged against the Appellee, JOHNATHAN KENNEDY, for which let
execution issue; and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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