TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
Stephen Joseph CARUANA, Appellee.
No. 03-08-00659-CV.
Court of Appeals of Texas, Austin.
February 12, 2010.*607 Kevin M. Givens, Austin, TX, for appellant.
Brian Lee Baker, San Marcos, TX, for appellee.
Before Chief Justice JONES, Justices WALDROP and HENSON.
MEMORANDUM OPINION
DIANE M. HENSON, Justice.
The Texas Department of Public Safety ("the Department") appeals from the trial court's order reversing the administrative suspension of appellee Stephen Caruana's driver's license. The Department argues that the trial court erred in reversing the *608 suspension because the arresting officer's unsworn incident report should have been considered admissible as evidence. We affirm the judgment of the trial court.
BACKGROUND
On December 30, 2007, Department Trooper Eric Flores pulled Caruana over in a routine traffic stop. During the stop, Flores came to the conclusion that Caruana was intoxicated, and requested a breath specimen for blood-alcohol testing. Caruana complied with the request, providing specimens that reflected blood-alcohol concentrations of 0.163 and 0.157, above the legal limit. See Tex. Penal Code Ann. § 49.01(2)(B) (West 2003) (defining "intoxicated" as "having an alcohol concentration of 0.08 or more").
Based on Caruana's failure of the blood-alcohol concentration test, the Department suspended his license pursuant to transportation code section 524.012. See Tex. Transp. Code Ann. § 524.012(b)(1) (West Supp.2009) ("The [D]epartment shall suspend the person's driver's license if the [D]epartment determines that ... the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public place."). Caruana then requested an administrative hearing to contest his license suspension. See id. § 524.031 (West 2007). At this hearing, the Department entered Flores's incident report into evidence over Caruana's objection that the report was unsworn and therefore inadmissible. Flores, called as a witness by the Department, conceded that no oath had been administered and that his report was unsworn, but testified that to the best of his knowledge, everything in his report was true and correct. The Department elicited no additional testimony to establish that Flores had reasonable suspicion to detain Caruana or probable cause to arrest him. Following the hearing, the administrative law judge (ALJ) affirmed the suspension of Caruana's license.
Caruana appealed the ALJ's decision to county court, where he argued that the ALJ erred in admitting Flores's unsworn report into evidence. After a hearing, the county court reversed the decision of the ALJ and ordered that Caruana's license be reinstated. This appeal followed.
STANDARD OF REVIEW
Administrative license-suspension cases are reviewed using a substantial-evidence standard. See Tex. Transp. Code Ann. § 524.002(b) (West 2007), § 724.047 (West 1999); Tex. Gov't Code Ann. § 2001.174 (West 2008); see also Texas Dep't of Pub. Safety v. Varme, 262 S.W.3d 34, 38 (Tex. App.-Houston [1st Dist.] 2008, no pet.) ("Whether in the trial court or this Court, the substantial evidence standard governs review of administrative decisions in driver's license suspension cases."). Under substantial-evidence review, an administrative decision may not be reversed unless substantial rights of the appellant have been prejudiced because the decision is:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency's statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Tex. Gov't Code Ann. § 2001.174(2).
We review rulings on the admission or exclusion of evidence at the administrative level under the abuse-of-discretion standard applied to trial courts. City *609 of Amarillo v. Railroad Comm'n, 894 S.W.2d 491, 495 (Tex.App.-Austin 1995, writ denied). A court abuses its discretion if it acts without reference to guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). A court has no discretion to apply the law incorrectly. In re Poly-America, L.P., 262 S.W.3d 337, 349 (Tex. 2008).
DISCUSSION
In its first issue on appeal, the Department argues that the trial court erred in reversing the administrative decision because Flores's unsworn report should have been considered admissible as a public record. In its second issue, the Department argues in the alternative that Flores's report became admissible as a sworn report when he swore to the truth of it during his testimony. The Department raises a third issue, arguing that there was no basis to reverse the administrative decision if the report was properly admitted into evidence, but concedes that this issue need not be addressed unless we reverse the trial court's decision based on one of the first two issues.
Admissibility of an Unsworn Report
License-suspension proceedings based on a person's failure of blood or breath testing for intoxication are governed by chapter 524 of the transportation code. See Tex. Transp. Code Ann. §§ 524.001-.051 (West 2007 & Supp. 2009) (chapter entitled "Administrative Suspension of Driver's License for Failure to Pass Test for Intoxication"). Under section 524.011, an arresting officer who obtains a breath specimen indicating that an individual is over the legal limit for intoxication must "send to the [D]epartment not later than the fifth business day after the date of the arrest ... a sworn report of information relevant to the arrest." Id. § 524.011(b)(4)(D). The sworn report required by section 524.011(b)(4)(D) must be made "on a form approved by the [D]epartment and in the manner specified by the [D]epartment." Id. § 524.011(d). In addition, the Department regulations specify that officer reports subject to chapter 524 must "be sworn to by the arresting officer." 37 Tex. Admin. Code § 17.4(2) (2009) (Tex. Dep't of Pub. Safety, ALR Reports).
At the time the administrative hearing in this case was held, the State Office of Administrative Hearings (SOAH) rules regarding license-suspension proceedings provided that "[a]n officer's sworn report of relevant information shall be admissible as a public record." 1 Tex. Admin. Code § 159.23(c)(7) (2008) (State Office of Admin. Hearings, Hearing), repealed by 34 Tex. Reg. 329 (2009).[1] The rule further states that 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." Id.
In the present case, Flores conceded in his testimony that his report was not sworn as required by transportation code section 524.011(b)(4)(D) and Department Rule 17.4. The Department argues, however, that the report need not be sworn in order to be admitted into evidence because it is admissible under the public-record exception to the hearsay rule. See Tex.R. Evid. 803(8) (providing for admissibility of "records, reports, statements, or data compilations, *610 in any form, of public offices or agencies setting forth," among other things, "matters observed pursuant to duty imposed by law as to which matters there was a duty to report"); see also 1 Tex. Admin. Code § 159.23(b) (2008) (providing that rules of evidence applicable to non-jury civil trials apply to administrative license-suspension proceedings). The Department further argues that the term "sworn report" in Rule 159.23(c)(7) is merely a term of art and does not in fact mean that the report must be sworn in order to be admissible as a public record.
Of significance to this appeal, there are two types of administrative license-suspension proceedings, governed by two separate statutory schemes. Chapter 724 of the transportation code governs those proceedings that result from an individual's refusal to provide a blood or breath specimen for blood-alcohol concentration testing. See id. §§ 724.031-.064 (West 1999 & Supp. 2009). Chapter 524, on the other hand, governs proceedings like the present case, where the individual provided a breath or blood specimen but subsequently failed the test. Compare id. (governing refusal cases), with id. §§ 524.001-.051 (governing failure cases). While both statutory schemes require an arresting officer to provide the Department with an incident report, the language used to describe the required report differs in a significant way. An officer in a refusal case is required to "make a written report of the refusal to the director of the [D]epartment," id. § 724.032(a)(4) (emphasis added), while an officer in a failure case must provide the Department with "a sworn report of information relevant to the arrest," id. § 524.011(b)(4)(D) (emphasis added). See also 37 Tex. Admin. Code § 17.4 (requiring officers in refusal cases to simply submit report, but requiring officers in failure cases to submit report that is "sworn to by the arresting officer").
In Texas Department of Public Safety v. Pruitt, 75 S.W.3d 634, 638-39 (Tex.App.-San Antonio 2002, no pet.), the San Antonio Court of Appeals relied on the distinction between the sworn report required in a failure case and the written report required in a refusal case to determine that a report in a refusal case need not be sworn in order to be admissible. Specifically, the court stated, "[I]n a case such as this, where Pruitt refused to submit to the taking of a breath specimen, Trooper Pacheco was not required to submit a `sworn' report but rather only a `written' one." Id. at 639. On that basis, the court held that the ALJ did not abuse its discretion in admitting the officer's unsworn report into evidence. Id. The implication of this holding is that an officer's report in a failure case, where the statutory language specifically requires a "sworn report," as opposed to merely a written one, must be properly sworn in order to be admissible.
We agree with the reasoning of Pruitt. Where the legislature requires an arresting officer to provide a "sworn report," and where SOAH's rules specifically provide that this "sworn report" is admissible as a public record, we hold that an unsworn report cannot also be admissible as a public record. See Tex. Transp. Code Ann. § 524.011(b)(4)(D); 1 Tex. Admin. Code § 159.23(c)(7) (2008). To hold otherwise would require us to interpret the term "sworn report" in Rule 159.23(c)(7) to mean both sworn and unsworn reports, an interpretation that is clearly contrary to the plain language of the rule. See Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999) ("Unless the rule is ambiguous, we follow the rule's clear language.").
While the Department urges that the transportation code and SOAH rules have no effect on an unsworn report's admissibility as a public record under Texas *611 Rule of Evidence 803(8), we disagree. Texas Rule of Evidence 101(b) provides that the rules of evidence apply "[e]xcept as otherwise provided by statute." Tex.R. Evid. 101(b). Furthermore, it is a fundamental rule of statutory construction that where general provisions conflict with specific provisions, the specific provision prevails as an exception to the general provision. Tex. Gov't Code Ann. § 311.026 (West 2005). Here, the requirements of the transportation code, the Department's own rules, and SOAH's rule regarding the admissibility of sworn reports in license-suspension proceedings control over the more general rule of evidence allowing public records to be admitted as a hearsay exception. In addition, the application of Texas Rule of Evidence 803(8) to all officer reports in license-suspension proceedings under transportation code chapter 524 would render the language of Rule 159.23(c)(7) meaningless, as it would not be necessary to specify that the statutorily required sworn report is admissible as a public record if all reports, whether sworn or not, are admissible as public records under the rules of evidence. See R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex.1994) ("We should not interpret a rule in such a way that renders its language meaningless.").
In light of the statutory requirement that an officer provide a sworn report in a license-suspension proceeding based on test failure, and the SOAH rule specifically stating that such a sworn report is admissible as a public record, we hold that Flores's unsworn report was not admissible as a public record. The Department's first issue on appeal is overruled.
Flores's Testimony
In its second issue on appeal, the Department argues that even if an unsworn report is not admissible as a public record, Flores's unsworn report became a sworn report when he testified at the administrative hearing that the contents of his report were true and correct.
During the administrative hearing, the Department elicited the following testimony from Flores:
Q: Trooper, is everything in your report true and correct?
A: Yes, sir, to the best of my knowledge.
Flores provided no testimony describing the contents of the report, his reasonable suspicion for stopping Caruana, or his probable cause for arrest.
According to the Department, the testimony quoted above is sufficient to consider Flores's report to be properly sworn. However, even if we were to assume that an officer could "cure" an unsworn report by testifying to its truth and accuracy on the day of the hearing and therefore make it admissible under SOAH Rule 159.23(c)(7), the Department would then be attempting to introduce new evidence at the hearing that was not produced in discovery. SOAH Rule 159.13(1) states that, assuming a proper discovery request was filed, "no document, in the [D]epartment's actual possession, will be admissible unless it was provided to the defendant within five business days of [the][D]epartment's receipt of the request for production." 1 Tex. Admin. Code § 159.13(1) (2008). Therefore, even if the Department was permitted to transform an unsworn report into a sworn report in the middle of a hearing, the new sworn report would not be admissible. In any event, we cannot interpret the statutes and rules at issue here in a manner that would allow the Department to circumvent the requirements of the transportation code, the rules governing license-suspension proceedings in SOAH, and the Department's own rules by submitting an unsworn report and later testifying regarding its truth and accuracy at the administrative hearing. See Tex. *612 Transp. Code Ann. § 524.011(b)(4)(D) (requiring officer to provide sworn report); 1 Tex. Admin. Code § 159.23(c)(7) (2008) (allowing for admissibility of sworn reports); 37 Tex. Admin. Code § 17.4(2) (stating that reports in failure cases "shall be sworn to by the arresting officer"). We hold that Flores's testimony was insufficient to render his report properly sworn as required by statute. The Department's second issue on appeal is overruled.
As previously discussed, Flores's unsworn report was not admissible. Because his testimony at the administrative hearing was limited to the truth and accuracy of a document not in evidence, his testimony essentially constituted no evidence. As such, the Department presented no evidence that there was reasonable suspicion to stop Caruana or probable cause to arrest him. See Tex. Transp. Code Ann. § 524.035 (providing that "reasonable suspicion to stop or probable cause to arrest the person" must be proved by preponderance of evidence at administrative hearing in order to sustain license suspension). On that basis, we hold that the trial court did not err in reversing the administrative decision suspending Caruana's license.
Alternative Bases for Reversal
Because we hold that Flores's report was not admissible, we need not reach the Department's third issue, in which it argues that there was no basis for reversal of the administrative decision if Flores's report was properly admitted into evidence.
CONCLUSION
We affirm the trial court's order reversing the administrative decision and reinstating Caruana's driver's license.
Dissenting Opinion by Chief Justice JONES.
J. WOODFIN JONES, Chief Justice, dissenting.
I respectfully dissent.
I do not believe that section 524.011(b)(4) of the transportation code and SOAH rule 159.23(c)(7), individually or together, bar admission of an officer's unsworn report at a license-suspension hearing, particularly under the facts of the present case. First, SOAH rule 159.23(c)(7) does not bar the admission of an unsworn report. The rule is one of inclusion, providing that an officer's sworn report shall be admitted as a public record. The rule does not, however, either on its face or by inference, prohibit admission of an unsworn report that would otherwise be admissible as a public record under the Texas Rules of Evidence. Second, although the transportation code requires an officer to deliver a "sworn report" to the Department after a DWI arrest, the code provides no sanction if the officer fails to comply or makes a mistake in his attempt to comply. Moreover, the relevant provision does not address the admissibility of evidence in a license-suspension hearing. Consequently, even if we assume that the legislature intended to impose a sanction for an officer's failure to send a "sworn" report, it is not at all clear that barring the report's admission in a license-suspension hearing is what the legislature intended. Third, except as otherwise provided by statute or SOAH rule, the rules of evidence apply in license-suspension hearings. See Tex. Gov't Code Ann. § 2001.081 (West 2008); 1 Tex. Admin. Code § 159.23(b) (2008) (State Office of Admin. Hearings, Hearing), repealed by 34 Tex. Reg. 329 (2009).
Our task is to decide whether, in light of the foregoing, the ALJ abused his discretion by admitting Trooper Flores's unsworn report. Given that no rule or statute barred admission and that the *613 document was otherwise admissible, I would hold that the ALJ did not abuse his discretion by admitting the report. Accordingly, I would hold that the agency order was supported by substantial evidence and that the trial court should have affirmed the administrative decision.
(i) SOAH's Rules Do Not Prohibit Admission of an Unsworn Report as a Public Record
We construe administrative rules in the same manner as statutes since they have the force and effect of statutes. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999). Unless the rule is ambiguous, we follow the rule's clear language. Id. Our primary objective in interpreting a rule is to give effect to the agency's intent. Id. We defer to an agency's interpretation of its own rule unless it is inconsistent with the rule or is plainly erroneous. Id. at 255. "We should not interpret a rule in a way that renders its language meaningless." R.K. v. Ramirez, 887 S.W.2d 836, 842 (Tex.1994).
SOAH rule 159.23(c)(7) states:
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.
1 Tex. Admin. Code § 159.23(c)(7) (2008). The rule does two things. First, it confirms that a sworn report is admissible as a public record. Second, it provides a sanction if the arresting officer is subpoenaed but fails to appear at the hearing. Nothing in the rule suggests that SOAH's intent in crafting the rule was to prohibit the admission of unsworn reports as public records, provided that the reports otherwise meet the requirements of the Texas Rules of Evidence. The majority reads an exclusionary provision into the rule where none exists. See Rodriguez, 997 S.W.2d at 254 (unless rule is ambiguous we follow its plain language).
The majority attaches significance to the fact that SOAH specifically provided for the admission of a "sworn report" as a public record, yet did not make rules for the admission of other evidence. The majority reads this rule, in conjunction with section 524.011(b)(4) of the transportation code's requirement that an officer send a "sworn" report to the Department, to exclude reports that are unsworn. This conclusion assumes either that SOAH rule 159.23(c)(7) is the basis for admission of the reporti.e., that it renders an otherwise inadmissible document admissible as a public recordor that, by wording the rule as it did, SOAH at least intended to highlight something about the form of the document that was required to make it admissible as a public record, presumably in light of section 524.011(4) of the transportation code, which arguably requires an officer to transmit to the Department a report under oath. Another implicit assumption is that SOAH presumably would not have bothered to make this rule if the report was already admissible as a public recordit would not just restate the obvious. I disagree with those assumptions and the ultimate conclusion they are used to buttress, because they wander beyond the confines of two basic tenets of rule interpretation. First, unless the rule is ambiguouswhich this one is notwe follow its plain language. Rodriguez, 997 S.W.2d at 254. Here, the rule's plain language does not bar admission of an unsworn report. Second, we defer to an agency's interpretation of its own rule unless it is inconsistent with the rule or is plainly erroneous. Id. at 255. Here, the ALJ interpreted the rule not to prohibit *614 the admission of an unsworn report as a public record, a conclusion that is neither inconsistent with the plain language of the rule nor plainly erroneous. These two tenets of rule interpretation, applied here, could and should end our analysis. Yet we have, in addition, definitive evidence of SOAH's intent in making this rule from the Texas Register, which the Texas Supreme Court has called "[o]ur best source for the [agency's] intent." Id. at 254.
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.... The statute [transportation code section 524.011(b)(4)(D)] refers to a "sworn report," not to an affidavit.... The admissibility of the sworn report is based on its status as a public record per case law, Porter v. Texas Dep't of Public Safety., 712 S.W.2d 263 (Tex. App.-San Antonio 1986), and not on any perceived similarity to an affidavit.
24 Tex. Reg. 1324-25 (Feb. 26, 1999).
In light of the comments in the Texas Register, it is clear that SOAH never intended to prohibit admission of an "unsworn" report, but rather understood that an officer's report was admissible because it was a public record, not because it bore any resemblance to an affidavit. SOAH's intent when adopting the term "sworn report" apparently was to adopt the nomenclature of the transportation code, not to insist that an officer's report be sworn in order to be admissible. See id. at 1325 ("[T]his subsection was amended to more closely track the language in Texas Transportation Code § 524,011(a)(2)(B) [sic] and § 524.011(b)(1-4) [sic]."). Rule 159.23(c)(7), therefore, merely restates the law as SOAH understood it: an officer's report on the circumstances of a DWI arrestregardless of what it is calledis admissible as a public record.[1] In sum, the rule does not bar admission of an unsworn report, and, given SOAH's intent in enacting the rule, it is improper to infer that SOAH's provision for the admissibility of a "sworn report" necessarily implies that it meant to exclude a report that is not sworn.
Officer Flores's Testimony Bolsters the Report's Authenticity and Credibility
Even taking as true the majority's assumptions that SOAH, in crafting the rule to admit "sworn reports," meant somehow to cabin the introduction of other reports not made under oath, it was still not an abuse of discretion for the ALJ to admit the unsworn report in this case in light of Officer Flores's live testimony at the hearing.[2] If we assume the majority's logic is correct, there must have been some reason why SOAH chose to admit only a sworn report as a public record. Allowing admission of a public record is an exception to *615 the hearsay rule, see Tex.R. Evid. 803(8), so it is conceivable, though I think unlikely, that SOAH considered an unsworn report to lack the trustworthiness or credibility that would come from having the report made under oath.
Concern about admitting hearsay stems from problems with evaluating the perception, memory, narration,[3] and sincerity of a witness who is not present at the proceeding. 2 Kenneth S. Broun, et al., McCormick on Evidence § 245 (6th ed. 2006). Traditionally, courts have overcome these problems by (1) administering an oath, (2) requiring the witness's presence at trial, and (3) subjecting the witness to cross-examination. Id. The public-records exception to the hearsay rule allows such records to be admitted in spite of those problems because the circumstances of their creation lead to a high probability of trustworthiness and accuracy. Id. § 295.
In the present case, any problems with the perception, memory, narration, or sincerity of the facts stated in the unsworn report were overcome by Officer Flores's live testimony, under oath and subject to cross-examination, that the facts stated in the report were true and correct. While his testimony may or may not have transformed his "unsworn report" into a "sworn report," it was sufficient to permit the ALJ to conclude that the problems inherent with hearsayperception, memory, narrative, and sinceritywere overcome. In light of this, I cannot say that the ALJ abused his discretion in admitting the unsworn report.
(ii) Section 524.011 of the Transportation Code Does Not Bar Admission of an Unsworn Report
"In construing a statute, our objective is to determine and give effect to the Legislature's intent. We look first to the plain and common meaning of the statute's words. We determine legislative intent from the statute as a whole and not from isolated portions." Harris County Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex.2009) (citations and internal quotation marks omitted).
Section 524.011(b)(4) of the transportation code states that, after arresting an individual for DWI, a peace officer shall:
(4) send to the [D]epartment not later than the fifth business day after the date of the arrest:
(A) a copy of the driver's license suspension notice;
(B) any driver's license taken by the officer under this subsection;
(C) a copy of any temporary driving permit issued under this subsection; and
(D) a sworn report of information relevant to the arrest.
Tex. Transp. Code Ann. § 524.011(b)(4) (West 2007) (emphasis added).
While it appears that section 524.011 is mandatory, see Tex. Gov't Code Ann. § 311.016 (West 2005) ("`Shall' imposes a duty."), it is well settled that many statutes containing such language are, in fact, directory. As the supreme court noted in Schepps v. Presbyterian Hospital:
[I]f the statute directs, authorizes or commands an act to be done within a certain time, the absence of words restraining the doing thereof afterwards or stating the consequences of failure to act within the time specified may be considered as a circumstance tending to support a directory construction.
652 S.W.2d 934, 936 (Tex.1983). Furthermore, "[p]rovisions which are not of the *616 essence of the thing to be done, but which are intended for the purpose of promoting the proper, orderly and prompt conduct of business, are not generally regarded as mandatory." Id. That is the case here. The statute commands an arresting officer to send certain items, including the arresting officer's sworn report, to the Department within five business days of the arrest. The statute does not, however, provide a sanction for failing to comply with the provision. Moreover, the provision does not go to the "essence of the thing to be done" in this caseallowing or barring admission of the report at a license-suspension hearing.
In a case similar to the present one, the Fourteenth Court of Appeals held that subsections 524.011(a) and (b) were directory and that an officer's failure to timely comply with 524.011(b)(4) did not allow the defendant to prevail in a license-suspension hearing. Texas Dep't of Pub. Safety v. Cortinas, 996 S.W.2d 885, 889 (Tex. App.-Houston [14th Dist.] 1998, no pet.). The present case is similar to Cortinas, except here the officer made an error in form rather than timing. Thus, there is an equally strong argument in the present case that 524.011(b) should be construed as directory. Here, the statutory provision requires the officer to submit a "sworn report," which arguably means that it must be made under oath. The statute provides no sanction for the officer's failure to comply with that requirement, just as in Cortinas, where the transportation code provided no sanction for failing to meet the five-day deadline.
The majority discusses and relies on the reasoning in Texas Department of Public Safety v. Pruitt, 75 S.W.3d 634 (Tex.App.-San Antonio 2002, no pet.). I do not think that reliance is justified. Without revisiting the facts, Pruitt held that in a refusal[4] case it was not an abuse of discretion for an ALJ to admit an unsworn report in light of the fact that the statute did not require the officer to file a sworn report. Id. at 639. The majority concludes that a logical implication of Pruitt is that when the "statute specifically requires a `sworn report,' as opposed to merely a written one, [the report] must be properly sworn in order to be admissible." Supra, at 610. The court's actual holding in Pruitt, however, was much narrower than the majority's reading of it here. Pruitt held that it was not an abuse of discretion to admit an unsworn report under the rules of evidence when no other statutory requirement, administrative rule, or rule of evidence required the report to be sworn in order to be admissible. That holding does not necessarily imply the conversei.e., that it is an abuse of discretion to admit, as a public record, an unsworn report when (1) a statute that is entirely unrelated to the admissibility of evidence in a license-suspension hearing requires, for whatever reason, that a "sworn report" be sent to the Department, but provides no sanction for failure to comply, (2) there is no other rule prohibiting its admission, and (3) the report is otherwise admissible as a public record.
(iii) The Transportation Code in Concert with the SOAH Rule Does Not Prohibit Admission of an Unsworn Report
The majority concludes that "where the legislature requires an arresting officer to provide a `sworn report,' and where SOAH's rules specifically provide that this `sworn report' is admissible as a public record ... an unsworn report cannot also *617 be admissible...." Supra, at 610. Under the rules of statutory interpretation, courts are not at liberty to infer such legislative intent where it is not discernable from the plain language of an unambiguous statute. See Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642 (Tex.2004) ("If the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute."). Likewise, rule-interpretation principles do not allow us to rewrite SOAH rule 159.23(c)(7), which unambiguously provides for the admissibility of a sworn report, to bar the admission of an unsworn report that would be otherwise admissible under the rules of evidence. See Rodriguez, 997 S.W.2d at 254.
(iv) The Department of Public Safety's Rules Are Not Applicable to This Case
Finally, the majority notes that, in failure cases such as this, the Department's own rules require that the officer provide a report that "shall be sworn to" and must contain, among other things, the "officer's sworn report." 37 Tex. Admin. Code § 17.4(2)(B) (2008) (Texas Dep't of Pub. Safety, ALR Reports). It is clear that the Department's rule requires the officer's report to be sworn, but the Department's rules are not relevant to our decision here. First, the Department's rules do not purport to govern the admissibility of the report at a license-suspension hearing; that duty is entrusted to SOAH by statute. See Tex. Transp. Code Ann. § 524.033 (West 2007) (hearing shall be held by SOAH). Second, even if we refer to the Department's rules to provide insight into the Department's interpretation of the transportation code, we find little guidance, as the Department's rules are not consistent with the code. In the refusal context, the Department's rules require the officer to send a "sworn report or probable cause affidavit" with other required documents in the administrative license-revocation report, see 37 Tex. Admin. Code § 17.4(1)(B) (2008), even though the transportation code requires only that the arresting officer file a "written report," see Tex. Transp. Code Ann. § 724.032(a)(4) (West Supp. 2009). In the failure context, where the code requires the officer to send a "sworn report," see id. § 524.011(b)(4)(D) (West Supp.2009), the Department's rules require that the officer send a sworn report along with the administrative license revocation report that must itself "be sworn to by the arresting officer," see 37 Tex. Admin. Code § 17.4(2)(B) (2008). These seemingly contradictory uses of the term "sworn report" either mean that, to the Department, "sworn report" is a term of art simply naming the form that an arresting officer must complete and transmita theory advanced by the Department hereor, at least, that we must be wary of using the Department's rules to inform our construction of the transportation code.
(v) The Report in the Present Case Meets the Requirements of a Self-Authenticating Public Record
Essential to my conclusion in this case is the fact that the unsworn report was admissible as a public record under the relevant rules of evidence. See Tex.R. Evid. 803(8) (report detailing matters observed by the officer that he had a duty to report and containing factual findings resulting from investigation admissible as public record), 902(1) (domestic public documents authentic when filed with seal of state agency), 1005 (copies of public documents admissible if they comply with authenticity requirements of rule 902(1)).
CONCLUSION
Neither the applicable transportation code section nor the applicable SOAH rule *618 prohibited admission of Trooper Flores's unsworn report at Caruana's license-suspension hearing, and the report was otherwise admissible as a public record. Accordingly, I would hold that the ALJ did not abuse his discretion by admitting the unsworn report. Because the report was properly in evidence, there was substantial evidence to support the ALJ's decision; therefore, the district court erred by reversing it. I would reverse the district court's judgment and render judgment affirming the administrative decision.
NOTES
[1] SOAH updated and reorganized its administrative rules regarding license-suspension proceedings on January 16, 2009. See 34 Tex. Reg. 329 (2009). No substantive changes were made regarding the admissibility of a sworn report. See 1 Tex. Admin. Code § 159.211(c)(2) (2009) (State Office of Admin. Hearings, Hearings). Because Caruana's administrative and county court proceedings were conducted in 2008, all references to the SOAH rules in this opinion will be to the rules as they existed at that time.
[1] I need not speculate why SOAH felt the need to restate the law in its rule. I would note only that to prevail at a hearing, the Department must establish by a preponderance of the evidence that there was probable cause for stopping the defendant and that the defendant failed a blood or breath test. See Tex. Transp. Code. Ann. § 524.035(a)(1)(A), (b) (West 2007). The officer's report may be a key piece of evidence offered for admission at most hearings. A convenient reiteration of the law with respect to such a common piece of evidence might streamline the hearing process.
[2] I am not suggesting that his testimony converted the document into a "sworn report," although I do not discount the possibility.
[3] The narration problem involves evaluating if a non-present witness's language accurately conveys the impression of his or her perception of the events. 2 Kenneth S. Broun, et al., McCormick on Evidence § 245 (6th ed. 2006).
[4] See Tex. Transp. Code Ann. §§ 724.031-.064 (West 1999 & Supp. 2009) (governing license suspension in cases where arrested individual refuses to provide blood or breath specimen for testing).