COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-276-CV
TEXAS DEPARTMENT OF APPELLANT
PUBLIC SAFETY
V.
JEFFERY BRUCE AXT APPELLEE
------------
FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
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OPINION
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I. INTRODUCTION
Appellant Texas Department of Public Safety (the Department) appeals
the trial court’s order reversing an administrative order that suspended appellee
Jeffery Bruce Axt’s driver’s license for refusing to provide a breath specimen.
In three issues, the Department argues that the trial court erred by reversing the
administrative law judge’s (ALJ’s) findings that reasonable suspicion existed for
the officers to stop Axt and that probable cause existed to believe that Axt had
been driving in a public place while intoxicated. Because we hold that the
officers did not have reasonable suspicion to stop Axt, we will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Axt was driving home from a bar at approximately 2:30 a.m. early one
morning when he entered the controlled access parking lot for the Arlington
police department. The parking lot’s entrance and exit are normally restricted
by yellow arms that lower to block entry and exit. That night, however, the
yellow arms were raised, permitting entrance to the lot. A sign at the parking
lot entrance by the raised arms indicated restricted access for authorized
personnel only.
Officers Joseph Balson and Meredith DeWall were standing outside the
police department’s sally port when Axt drove into the parking lot via the
entrance with the raised arm. Although the officers did not see Axt’s car enter
the lot, they saw the car inside the lot and noticed that the driver appeared to
be lost and had a difficult time turning and reversing his car to position it
toward the lot’s exit. The officers stepped in front of Axt’s car while it was
still inside the parking lot and used a flashlight to direct Axt to stop. Officer
Balson then noticed that Axt had red, glassy eyes and slurred speech and
appeared disoriented. The officer also detected a strong odor of alcohol coming
from the vehicle. Axt admitted that he had just left a bar down the street.
2
The officers detained Axt for field sobriety testing and called Officer
Travis Kuhn to administer the tests. Officer Kuhn determined that Axt was
intoxicated, arrested him, and after warning him of the consequences of
refusing a breath test, requested that he provide a breath specimen. Axt
refused, and the Department subsequently suspended his driver’s license.
Axt requested an administrative hearing regarding the suspension. Officer
Balson was the Department’s sole witness at the administrative hearing. The
ALJ found that the officers had reasonable suspicion to stop Axt and that Axt
was operating a motor vehicle in a public place while intoxicated. The ALJ thus
authorized the Department to suspend Axt’s driver’s license for 180 days. Axt
appealed the ALJ’s decision to the trial court. The trial court reversed the
ALJ’s decision, holding that there was no reasonable suspicion to stop Axt.
This appeal by the Department followed.
III. D RIVER’S L ICENSE S USPENSION P ROCEDURES AND S TANDARD OF R EVIEW
At a driver’s license suspension hearing, the Department bears the burden
of proving that (1) reasonable suspicion or probable cause existed to stop or
arrest the person; (2) probable cause existed to believe that the person was
operating a motor vehicle in a public place while intoxicated; (3) the person was
placed under arrest by the officer and subsequently asked to submit to a breath
or blood test; and (4) the person refused to submit to the breath or blood
3
specimen. See Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2008).
The driver may appeal the ALJ’s decision, in which case the county court
on appeal will review the ALJ’s decision under the substantial evidence
standard of review. See Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128,
131 (Tex. 1999). Additionally, the court of appeals reviews the trial court’s
substantial evidence review de novo. Tex. Dep’t of Pub. Safety v. Valdez, 956
S.W.2d 767, 769 (Tex. App.—San Antonio 1997, no pet.).
The issue for the reviewing court is not whether the agency’s decision is
correct, but only whether the record demonstrates some reasonable basis for
the agency’s action. Mireles, 9 S.W.3d at 131; Tex. Dep’t of Pub. Safety v.
Vasquez, 225 S.W.3d 47, 52 (Tex. App.—El Paso 2005, no pet.). The court
may not substitute its judgment on the weight of the evidence for that of the
ALJ and must uphold the ALJ’s finding even if the evidence preponderates
against it so long as enough evidence suggests that the ALJ’s determination
was within the bounds of reasonableness. Mireles, 9 S.W.3d at 131; S.W.
Pub. Serv. Co. v. Pub. Util. Comm’n of Tex., 962 S.W.2d 207, 215 (Tex.
App.—Austin 1998, pet. denied).
The burden for overturning an agency ruling is formidable. Tex. Dep’t of
Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex. App.—Corpus Christi 2000, no
pet.). If there is evidence to support the ALJ’s findings, its decision must be
4
upheld. Tex. Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 83 (Tex.
App.—San Antonio 1997, no writ). But a trial court may reverse an ALJ’s
determination if a substantial right of the appellant has been prejudiced because
the ALJ’s findings, inferences, conclusions, or decisions are not reasonably
supported by substantial evidence considering the record as a whole. Tex.
Gov’t Code Ann. § 2001.174(2)(E) (Vernon 2008).
IV. R EASONABLE S USPICION TO S TOP A XT
In its first issue, the Department argues that the trial court erred by
reversing the ALJ’s finding that the officers had reasonable suspicion to stop
Axt. The Department contends that reasonable suspicion existed because Axt
committed criminal trespass by entering the Arlington Police Department’s
parking lot.
A police officer may stop and briefly detain a person for investigative
purposes if the officer has a reasonable suspicion, supported by articulable
facts, that the person detained actually is, has been, or soon will be engaged
in criminal activity. See Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159,
163 (Tex. App.—Dallas 2001, no pet.) (citing Tex. Dep’t of Pub. Safety v.
Chang, 994 S.W.2d 875, 877 (Tex. App.—Austin 1999, no pet.)). This is an
objective standard that disregards any subjective intent of the officer making
the stop and looks solely to whether an objective basis for the stop exists. See
5
Ford v. State, 158 S.W.3d 488, 492–93 (Tex. Crim. App. 2005). The burden
on the State is to demonstrate the reasonableness of the stop. See Fisher, 56
S.W.3d at 163. The State is not required to show an offense was actually
committed or to prove every element of a specific offense, 1 but only that the
officer reasonably believed a crime was in progress. Fisher, 56 S.W.3d at 163;
Martinez v. State, 29 S.W.3d 609, 611–12 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d).
The Texas Penal Code defines criminal trespass to include entry onto the
property of another without effective consent and with notice that the entry
was forbidden. Tex. Penal Code Ann. § 30.05(a)(1) (Vernon Supp. 2008).
Even though the statutory language of section 30.05(a) does not prescribe a
culpable mental state, one is nevertheless required. See Tex. Pen. Code Ann.
§ 6.02(b) (Vernon 2008). Intent, knowledge, or recklessness is sufficient to
establish responsibility for criminal trespass. West v. State, 567 S.W.2d 515,
516 (Tex. Crim. App. [Panel Op.] 1978); Day v. State, 532 S.W.2d 302, 306
n.2 (Tex. Crim. App. 1976) (op. on reh’g), disapproved of on other grounds by
1
Contrary to the dissent’s assertion, we expressly do not hold that the
Department is required to prove every element of an offense to justify an
investigative stop. Dissenting op. at 5. Instead, we hold that, applying the
substantial evidence standard, the trial court correctly found that the ALJ’s
reasonable suspicion determination was not supported by substantial evidence.
See Tex. Gov’t Code Ann. § 2001.174(2); Mireles, 9 S.W.3d at 131; Vasquez,
225 S.W.3d at 52.
6
Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007); see Tex. Pen. Code
Ann. § 6.02(c). Thus, the offense of criminal trespass consists of the following
elements: (1) a person (2) without effective consent (3) enters or remains on
the property or in a building of another (4) knowingly or intentionally or
recklessly (5) when he had notice that entry was forbidden or received notice
to depart but failed to do so. See Day, 532 S.W.2d at 306.
Regarding the fifth element—notice—the court of criminal appeals has
explained that
the obvious intent of the Legislature in including the “notice”
requirement in the criminal trespass statute . . . [was] to prevent
an innocent trespass upon the “property” of another from incurring
criminal liability. For example, where one innocently trespasses
upon the unfenced and unposted land of another, no criminal
offense would be committed.
Id. Section 30.05 defines “notice” to include “fencing or other enclosure
obviously designed to exclude intruders” and “signs posted on the property or
at the entrance to the building, reasonably likely to come to the attention of
intruders, indicating that entry is forbidden.” Tex. Penal Code Ann. §
30.05(b)(2)(B)–(C). Thus, as a matter of law, no criminal trespass may occur
in the absence of notice that entry is prohibited. See id. § 30.05(a)(1); Moreno
v. State, 702 S.W.2d 636, 640 (Tex. Crim. App. 1986).
7
Here, we are concerned with the ALJ’s determination that the officers
had reasonable articulable suspicion that Axt was committing the offense of
criminal trespass because the record establishes that on the night in question
public access to the lot was not restricted. The Department did not need to
prove that Axt actually committed criminal trespass by entering the parking lot;
rather, it needed to prove that Officer Balson reasonably believed that Axt was
committing the offense. See Fisher, 56 S.W.3d at 163; Martinez, 29 S.W.3d
at 611–12. But despite the restricted access sign, Officer Balson (the officer
who stopped Axt and the only witness at the administrative hearing) testified
and put in his report that on the night in question the arms to the entrance and
exit gates were up—allowing public access to the parking lot—when Axt
entered the lot at 2:30 in the morning. 2 He further testified that Axt appeared
2
Specifically, the following exchange took place between Officer Balson
and Axt’s defense attorney at the administrative hearing:
Q Okay. All right. That entry normally has controlled access,
doesn’t it?
A Yes, sir.
Q It has gates for the entry lane—or a gate for the entry lane and a
gate for the exit lane. Is that correct?
A Yes, sir.
Q The gate being a yellow arm that lowers to block entry or exit. Is
that correct?
8
to be turning around to leave, rather than attempting to park in, the parking lot
A Yes, sir.
Q At that particular time both gates were up and not restricting
entry or exit. Is that correct?
A That’s correct.
Q And you even put in your report that the—both gates were
up allowing public access to the parking lot. Is that correct?
A I don’t believe I said that. I think Officer DeWall did.
....
Q Okay. Your narrative starts here. Is that correct?
A Yes, sir.
Q Okay. Then as it continues on the next page, [“]Both gates
were up allowing public access to the parking lot.[“] Is that
correct?
A Okay. Sure.
Q Okay. That’s what you put in your report. Right?
A Yes. I just didn’t see it.
The Department’s attorney did not ask Officer Balson any questions at the
administrative hearing. Thus, the record establishes that any notice provided
by the restricted access sign was negated by the open gates and by the fact
that it was 2:00 a.m., not normal business hours, when Axt entered the lot.
That is, Officer Balson’s testimony and report establish that access to the lot
was not restricted on the night in question. Consequently, reasonable suspicion
cannot exist that Axt was committing criminal trespass.
9
when he stopped him. Thus, Officer Balson could not have had a reasonable
basis to believe that Axt was committing criminal trespass in light of his
testimony and his police report indicating that the parking lot’s open gates
allowed public access on the night in question. The Department has failed to
point to evidence in the record that would lead a reasonable person to believe
that Axt was committing criminal trespass by turning around in a parking lot at
2:30 a.m. when the lot’s gated arms were raised. See Viveros v. State, 828
S.W.2d 2, 4 (Tex. Crim. App. 1992) (holding that driving very slowly was not
suspicious activity that would create a reasonable belief that such activity was
related to crime).
For these reasons, we hold that the Department failed to satisfy its
burden to demonstrate that an objective basis for the stop existed. See Ford,
158 S.W.3d at 492–93; Fisher, 56 S.W.3d at 163. Applying the substantial
evidence standard, we hold that the trial court correctly found that the ALJ’s
reasonable suspicion determination was not supported by substantial evidence.
See Tex. Gov’t Code Ann. § 2001.174(2); Mireles, 9 S.W.3d at 131; Vasquez,
225 S.W.3d at 52.
10
Because of our disposition of the Department’s first issue, we need not
address its second or third issues. See Tex. R. App. P. 47.1. We affirm the
trial court’s judgment.
SUE WALKER
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.
CAYCE, C.J. filed a dissenting opinion.
DELIVERED: June 25, 2009
11
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-276-CV
TEXAS DEPARTMENT OF PUBLIC APPELLANT
SAFETY
V.
JEFFERY BRUCE AXT APPELLEE
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FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY
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DISSENTING OPINION
------------
I respectfully dissent. I believe the Department met its burden of proving
that reasonable suspicion existed to stop Axt’s vehicle. I further believe that
substantial evidence supports the administrative law judge’s (ALJ) conclusion
that Officer Kuhn had probable cause to believe Axt was operating a motor
vehicle while intoxicated on a public road. Therefore, I would sustain the
Department’s issues, reverse the trial court’s judgment and render judgment
reinstating the ALJ’s order authorizing the Department to suspend Axt’s driver’s
license.
The background facts are as follows:
At around 2:30 a.m. on October 27, 2007, two Arlington police officers
saw Axt driving a car in a restricted jail parking lot that is marked with signs
declaring the area to be for authorized personnel only. The parking lot is also
controlled by an access gate, but that night the gate was malfunctioning and
allowed entry and exit to any vehicle. Axt’s car was already through the gate
before the officers noticed it. Axt appeared to be lost and had a difficult time
backing and reversing his car to exit the area.
The police officers approached the car while it was still in the jail parking
lot and directed Axt to stop. Officer Joseph Balsa noticed that Axt had red,
glassy eyes, was slurring his speech, and appeared disoriented. The officer also
detected a strong odor of alcohol coming from the vehicle. Axt admitted that
he had just come from a bar down the street. Officer Balsa and the other
officer detained Axt for field sobriety testing and called Officer Travis Kuhn to
administer the tests. Officer Kuhn determined that Axt was intoxicated,
arrested Axt, and after warning Axt of the consequences of refusing a breath
2
test, requested that he provide a breath specimen. Axt refused, and the
Department subsequently suspended his driver’s license.
Axt requested an administrative hearing regarding the suspension. The
ALJ concluded that Axt was legally detained and issued an order upholding the
suspension of Axt’s driver’s license. Axt appealed the ALJ’s decision to the
trial court, complaining that the evidence did not support the ALJ’s conclusions
that the officers had reasonable suspicion to stop Axt’s vehicle and probable
cause to believe that Axt had operated a vehicle in a public place while
intoxicated. The trial court reversed the ALJ’s decision, holding that there was
neither reasonable suspicion nor probable cause. This appeal followed.
Administrative license revocation cases are reviewed under the substantial
evidence standard of review. 1 The issue for the reviewing court is not whether
the ALJ’s decision was correct, but only whether the record demonstrates
some reasonable basis for the ALJ’s action. 2 The court may not substitute its
judgment on the weight of the evidence for that of the ALJ and must uphold
the ALJ’s finding even if the evidence preponderates against it so long as
enough evidence suggests the ALJ’s determination was within the bounds of
1
Tex. Gov’t Code Ann. § 2001.174(2) (Vernon 2008); Mireles v. Tex.
Dep’t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).
2
Mireles, 9 S.W.3d at 131; Tex. Dep’t of Pub. Safety v. Vasquez, 225
S.W.3d 47, 52 (Tex. App.—El Paso 2005, no pet.).
3
reasonableness. 3 If there is evidence to support the ALJ’s findings, the ALJ’s
decision must be upheld. 4 Any evidentiary ambiguities should be resolved in
favor of the ALJ’s findings. 5 The burden for overturning an agency ruling is
formidable.6
At a license suspension hearing, the Department bears the burden of
proving: (1) reasonable suspicion or probable cause existed to stop or arrest the
person; (2) probable cause existed to believe that the person was operating a
motor vehicle in a public place while intoxicated; (3) the person was placed
under arrest by the officer and subsequently asked to submit to a breath or
blood test; and (4) the person refused to submit to the breath or blood test. 7
There is no dispute in this case regarding the last two requirements.
Accordingly, I focus on whether substantial evidence supports the ALJ’s
conclusions that reasonable suspicion existed to stop Axt’s vehicle and that
3
Mireles, 9 S.W.3d at 131; Sw. Pub. Serv. Co. v. Pub. Util. Comm’n
of Tex., 962 S.W.2d 207, 215 (Tex. App.—Austin 1998, pet. denied).
4
Tex. Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 83 (Tex.
App.—San Antonio 1997, no writ).
5
Tex. Dep’t of Pub. Safety v. Pruitt, 75 S.W.3d 634, 639 (Tex.
App.—San Antonio 2002, no pet.).
6
Tex. Dep’t of Pub. Safety v. Pucek, 22 S.W.3d 63, 67 (Tex.
App.—Corpus Christi 2000, no pet.).
7
Tex. Transp. Code Ann. § 724.042 (Vernon Supp. 2008).
4
probable cause existed to believe that Axt was operating a motor vehicle in a
public place while intoxicated.
The Department argues in its first issue that the officers had reasonable
suspicion to stop Axt because they reasonably believed Axt may have been
committing the offense of criminal trespass when he entered the restricted
parking lot. 8 Axt asserts, and the majority holds, that there was no reasonable
suspicion for the stop because the Department did not offer evidence to support
every element of criminal trespass. I agree with the Department.
The Department is not required to show an offense was actually
committed or to prove every element of a specific offense to establish
reasonable suspicion, but only that the officer reasonably believed a crime was
in progress. 9 To justify an investigative stop, the officer must have specific and
articulable facts from which he can reasonably surmise that the detained person
may be associated with a crime. 10 In other words, the officer must reasonably
8
A person commits criminal trespass if he enters or remains on property
or in a building of another without effective consent and he had notice that the
entry was forbidden or he received notice to depart but failed to do so. Tex.
Penal Code Ann. § 30.05 (Vernon Supp. 2008).
9
Tex. Dep’t of Pub. Safety v. Fisher, 56 S.W.3d 159, 163 (Tex.
App.—Dallas 2001, no pet.); Martinez v. State, 29 S.W.3d 609, 611–12 (Tex.
App.—Houston [1st Dist.] 2000, pet. ref’d).
10
Davis v. State, 829 S.W.2d 218, 219 (Tex. Crim. App. 1992) (op.
on reh’g).
5
suspect that (1) some activity out of the ordinary is occurring or has occurred,
(2) the detained person is connected with the unusual activity, and (3) the
activity is related to a crime. 11 Circumstances which raise a suspicion that
illegal conduct is taking place need not themselves be criminal; they only need
to include facts which render the likelihood of criminal conduct greater than it
would be otherwise. 12
After reviewing the administrative record, I believe that substantial
evidence supports the ALJ’s reasonable suspicion holding. Two police officers
observed Axt driving a motor vehicle in a restricted jail parking lot at around
2:30 a.m. Although the gate to the parking lot was malfunctioning and allowed
entry and exit to any vehicle, the parking lot was marked with signs declaring
the area to be for authorized personnel only. Axt’s late-night presence in a jail
parking lot, where signs warned that the area was closed to the public,
warranted the officers’ suspicion that Axt was criminally trespassing. 13 I
would, therefore, sustain the Department’s first issue.
11
Gurrola v. State, 877 S.W.2d 300, 302 (Tex. Crim. App. 1994).
12
Reyes v. State, 899 S.W.2d 319, 324 (Tex. App.—Houston [14th
Dist.] 1995, pet. ref’d) (citing Crockett v. State, 803 S.W.2d 308, 311 (Tex.
Crim. App. 1991)).
13
See Rue v. State, 958 S.W.2d 915, 917–18 (Tex. App.—Houston
[14th Dist.] 1997, no pet.).
6
In its second issue, which the majority does not reach because of its
disposition of the Department’s first issue, the Department argues that
substantial evidence supports the ALJ’s finding that Officer Kuhn had probable
cause to believe that Axt was driving while intoxicated in a public place. Axt
does not dispute that he was driving while intoxicated. Rather, Axt contests
the ALJ’s determination that probable cause existed to believe Axt was driving
while intoxicated in a public place because, he argues, (1) the jail parking lot
was not a public place and (2) neither officer saw him driving before he entered
the jail parking lot.
Under section 724.042 of the Texas Transportation Code, in a driver’s
license suspension hearing, the ALJ must determine “whether probable cause
existed to believe . . . [the license holder] was operating a motor vehicle in a
public place while intoxicated.” 14 The Department did not have to prove that
Axt was in fact driving while intoxicated in a public place, but only that there
was probable cause to believe that he had been driving in a public place while
intoxicated. 15 Probable cause exists where the police have reasonably
trustworthy information sufficient to warrant a reasonable person to believe a
14
Tex. Transp. Code Ann. § 724.042(2)(A).
15
See id.
7
particular person has committed or is committing an offense. 16 Probable cause
deals with probabilities and requires more than mere suspicion, but far less
evidence than that needed to support a conviction or even that needed to
support a finding by a preponderance of the evidence. 17
Officer Kuhn’s report and probable cause statement indicates that (1)
upon his arrival at the jail parking lot, Officer Kuhn was informed that Axt
admitted that he had just come from a bar down the street, (2) Officer Kuhn
immediately noticed that Axt had slurred speech, trouble balancing, and an odor
of an alcoholic beverage coming from his breath and person, (3) Officer Kuhn
administered Standardized Field Sobriety Tests including the Horizontal Gaze
Nystagmus test, which showed five out of six clues of intoxication, the Walk
and Turn test, which demonstrated four out of eight clues of intoxication, and
the One Leg Stand, which showed three out of four clues of intoxication, and
(4) during the field sobriety tests, Officer Kuhn observed that Axt had difficulty
balancing and repeatedly failed to follow instructions. Officer Kuhn reported
that he had probable cause to arrest or detain Axt because of Axt’s “slurred
speech, odor of alcoholic beverage emitted from breath and person, [and]
16
Guzman v. State, 955 S.W.2d 85, 87 (Tex. Crim. App. 1997).
17
Id.
8
difficulty balancing,” as well as the results of the sobriety tests. In addition,
Officer Balsa observed that Axt had red, glassy eyes.
Based on this record, I would hold that substantial evidence supports the
ALJ’s conclusion that the officers had probable cause to believe Axt was
operating a motor vehicle while intoxicated on a public road. While the officers
did not specifically observe Axt driving on the public road before he entered the
jail parking lot, they could have reasonably inferred that Axt became intoxicated
at the bar and then drove to the jail parking lot using public streets. 18 There
was no indication of any alcohol in the car, and Axt admitted to the officers on
the scene that he had just come from a bar down the street. Thus, the ALJ did
not err in holding that the officers had probable cause to believe that Axt had
been driving in a public place while intoxicated. 19 I would, therefore, sustain
the Department’s second issue. 20
18
See Dep’t of Pub. Safety v. Hirschman, 169 S.W.3d 331, 340 (Tex.
App.—Waco 2005, pet. denied); Stagg v. Tex. Dep’t of Pub. Safety, 81
S.W.3d 441, 444 (Tex. App.—Austin 2002, no pet.).
19
See Muniz v. State, 851 S.W.2d 238, 251 (Tex. Crim. App.), cert.
denied, 510 U.S. 837 (1993) (“In determining whether probable cause existed
for the arrest, we examine the cumulative information known to all the officers
who cooperated in the arrest.”) (citing Woodward v. State, 668 S.W.2d 337,
344 (Tex. Crim. App. 1982), cert. denied, 469 U.S. 1181 (1985)).
20
Because of my disposition of the Department’s first two issues, I
would not need to reach its third issue. See Tex. R. App. P. 47.1.
9
Accordingly, I would reverse the trial court’s judgment and render
judgment reinstating the ALJ’s order authorizing the Department to suspend
Axt’s driver’s license.
JOHN CAYCE
CHIEF JUSTICE
DELIVERED: June 25, 2009
10