IN THE
TENTH COURT OF APPEALS
No. 10-03-288-CR
WESLEY HAROLD ELLIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 18th District Court
Johnson County, Texas
Trial Court # F36221
MEMORANDUM OPINION
Wesley Harold Ellis pled guilty to two counts of tampering with a governmental record. Pursuant to a plea bargain, the court sentenced him to eight years’ imprisonment and a $500 fine on both counts, suspended imposition of sentence, and placed him on community supervision for eight years. Ellis timely filed a notice of appeal.
The trial court’s certification regarding Ellis’s right of appeal states, “[T]he defendant has waived the right of appeal.” Rule of Appellate Procedure 25.2(d) provides in pertinent part, “The appeal must be dismissed if a certification that shows the defendant has the right of appeal has not been made a part of the record under these rules.” Tex. R. App. P. 25.2(d).
The trial court’s certification affirmatively shows that Ellis has no right of appeal. Accordingly, we dismiss the appeal. Id.; see Walker v. State, 110 S.W.3d 509, 511 (Tex. App.—Waco 2003, no pet.).
PER CURIAM
Before Chief Justice Gray,
Justice Vance, and
Judge Strother (Sitting by Assignment)
Appeal dismissed
Opinion delivered and filed December 10, 2003
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[CR25]
non Supp. 2002). Barlow timely requested a hearing to challenge the suspension of his driver’s license. Id. at § 724.041 (Vernon Supp. 2002). The hearing was conducted on the 49th day after the notice of suspension. At the hearing, Barlow objected to the suspension because the hearing was held more than 40 days from the notice date of the suspension. The ALJ upheld the suspension of Barlow’s license. Barlow appealed the ALJ’s decision to the reviewing court, which reversed the suspension based on DPS’s violation of the 40-day rule. Id. at §§ 724.047, 524.041 (Vernon Supp. 2002).
The Forty Day ProvisionSection 724.041(b) of the Transportation Code provides: “A hearing shall be held...before the effective date of the notice of suspension or denial.” Tex. Transp. Code Ann. § 724.041(b) (Vernon Supp. 2002). Further, a suspension or denial takes effect on the fortieth day after which the person receives notice of the suspension or denial. See id. at § 724.035(c) (Vernon Supp. 2002). Several Texas courts have held that failure to hold a hearing within the forty (40) days is not fatal. See Balkum v. Texas Dep't of Pub. Safety, 33 S.W.3d 263, 267-68 (Tex. App.—El Paso 2000, no pet.); Texas Dep’t of Pub. Safety v. Dear, 999 S.W.2d 148, 153 (Tex. App.—Austin 1999, no pet.); Texas Dep't of Pub. Safety v. Guerra, 970 S.W.2d 645, 649-50 (Tex. App.—Austin 1998, pet. denied). In Guerra, the Austin court held that, although chapter 524 requires that the administrative hearing be held within forty days, this requirement is "directory" and not "mandatory." See Guerra, 970 S.W.2d at 648-49. The same result has also been reached in cases under chapter 724 of the Transportation Code which pertains to driver's license suspensions for failure to give a breath sample. See Balkum, 33 S.W.3d at 267-68; Dear, 999 S.W.2d at 153; Texas Dep't of Pub. Safety v. Salas, 977 S.W.2d 845 (Tex. App.—Austin 1998, no pet.).
The legislature has set forth specific requirements for driver’s license suspension hearings under chapter 724. For example, a person must request a hearing “not later than the 15th day after the date on which the person receives notice of suspension.” Tex. Transp. Code Ann. § 724.041(a) (Vernon Supp. 2002). A hearing also “shall be held not earlier than the 11th day after the date the person is notified.” Id. at § 724.041(b) (Vernon Supp. 2002). Further, a person requesting a hearing may obtain only one continuance, unless a person shows a medical condition, in which event an additional continuance may be granted for a period not to exceed 10 days. See id. at §§ 724.041(g) and 524.032(c) (Vernon Supp. 2002). Finally, the legislature provided that “a request for a hearing stays the suspension or denial until the date of the final decision of the administrative law judge.” Id. at § 724.041(c) (Vernon Supp. 2002).
A directory provision is, by definition, one “the observance of which is not necessary to the validity of the proceeding.” Dear, 999 S.W.2d at 151 (citations omitted). Although we believe the legislature intended for hearings under chapter 724 to be held without undue delay, we agree with the Austin Court that the scheduling of the final hearing may be beyond DPS’s control. Id. Moreover, "it would be unreasonable to punish the Department for acts that are not within its control." Guerra, 970 S.W.2d at 649. We can ascertain no reason under the statutory scheme, absent proof of bad faith on the part of DPS, to invalidate suspension because the hearing was not conducted within forty days. Thus, we join the other appellate courts in finding the forty-day provision directive in nature, rather than mandatory. See Dear, 999 S.W.2d at 151.
Citing Guerra, Barlow argues that the ALJ lacked jurisdiction because DPS failed in its affirmative duty to provide “good cause” for the delay beyond the forty days. We disagree. The Court in Guerra held that if the hearing occurs after forty days, DPS must show "good cause" if it contributed to the delay. Id. at 650. The San Antonio court agreed. See Texas Dep't of Pub. Safety v. Vela, 980 S.W.2d 672, 674 (Tex. App.—San Antonio 1998, no pet.). The Austin Court later clarified its decision in Guerra by stating that it did not hold that DPS faced invalidation of a license suspension if it failed to make a “good cause” showing. See Dear, 999 S.W.2d at 151; see also Balkum, 33 S.W.3d at 268. The court reasoned that placing the burden on DPS to establish good cause, or else face invalidation of a license suspension, runs counter to the well established rule that violation of a “directory” provision does not deprive the agency of jurisdiction to act. See Dear, 999 S.W.2d at 151-52. “If the legal consequence of failing to comply with a directory provision was the same as that for failing to comply with a mandatory provision, there would be no meaningful distinction between the two.” Id at 152. In determining the effect of non-compliance, the court considered that laws subjecting intoxicated motorists to suspension of driving licenses are intended to remove dangerous drivers from roadways to protect both themselves and other motorists, and the purpose of the forty-day requirement is to promote the proper, orderly, and prompt conduct of business. See id. Given these purposes, we agree that because of the directive nature of the forty-day provision, a driver seeking to invalidate a license suspension must establish “bad faith” on the part of DPS. Id. at 153; Balkum, 33 S.W.3d at 268.
We also agree that there may be a penalty, i.e., the invalidation of the suspension, if there is a showing of “bad faith” by DPS that resulted in the hearing being held after the forty-day period. See Dear, 999 S.W.2d at 153. In the present case, however, we find no such evidence of bad faith. Here, as in Vela, the delay in conducting Barlow’s hearing was not the fault of DPS. Id. As a “remote site” for hearings of this nature, the Brazos County courthouse conducted these hearings only on each Wednesday during the week. The ALJ explained that the delay resulted from the courthouse being closed on the consecutive Wednesdays of December 24, 1998 (Christmas Eve), and December 31, 1998 (New Year’s Eve). DPS did not contribute to these delays.
Because we conclude that the Department's departure from the directory provision requiring an administrative hearing within 40 days of notice of license suspension is not jurisdictional and does not, under the present facts, give rise to any inference of bad faith by DPS, we sustain the DPS's point of error and reverse the judgment of the county court at law; we remand the cause to the county court at law for further proceedings.
REX D. DAVIS
Chief Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
Reversed and remanded
Opinion delivered and filed January 30, 2002
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[CV06]