In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00070-CV
__________________
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
JONATHAN DAKOTA HARGRODER, Appellee
__________________________________________________________________
On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 7406
__________________________________________________________________
MEMORANDUM OPINION
An administrative law judge (“ALJ”) issued a decision and administrative
suspension of the driver’s license of Appellee, Jonathan Dakota Hargroder.
Hargroder then appealed the suspension of his license to the District Court in Hardin
County, Texas. The district court reversed the ruling of the ALJ, and Appellant the
Texas Department of Public Safety (“Appellant” or “Department”) appeals the
judgment of the district court. In one issue, the Department asserts that the district
court erred in reversing the ALJ’s Administrative Decision. We reverse and remand.
1
Background
In October 2020, an ALJ held a hearing under Chapter 524 of the
Transportation Code at the Department’s request. The Department offered five
exhibits into evidence, Hargroder raised no objection to the exhibits and the ALJ
admitted the exhibits. One of the exhibits was a Peace Officer’s Sworn Report, dated
December 7, 2019, and executed under penalty of perjury by Trooper Robert
Perrault. Therein the Trooper stated that he had observed a white Chevrolet pickup
truck traveling on FM 92, and that he had reasonable suspicion to stop the vehicle
because the driver was “traveling above the posted speed limit and driving on [the]
improved shoulder when prohibited.” According to the Sworn Report, upon stopping
the truck, the driver identified himself as Hargroder, and the Trooper stated that he
observed that Hargroder showed signs of intoxication or alcohol consumption,
including “odor of alcoholic beverage, red bloodshot eyes, slow slurred speech,
[and] disheveled appearance.” In a field sobriety test, the Trooper noted that he
observed six clues for intoxication on the HGN test and six clues on the walk-and-
turn test. According to Perrault’s report, Hargroder could not perform the one-leg-
stand test “due to the suspect’s safety and well-being.” The Trooper’s report
included the result of an intoxilyzer test that showed “0.226, 0.231[.]” Additionally,
a Notice of Suspension was admitted into evidence which stated that Hargroder’s
driver’s license would be suspended because he “provided a specimen of breath or
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blood, and an analysis of the specimen showed an alcohol concentration of .08 or
greater following an arrest for an offense involving the operation of a motor vehicle
or watercraft.” Finally, a Texas Forensic Breath Alcohol Analytical Report for
Hargroder dated December 8, 2019 was admitted into evidence, and the report
showed “Result 1: 0.231 g/210L” and “Result 2: 0.226 g/210L[.]”
At the suspension hearing, Hargroder opposed the Department’s request that
his driver’s license be suspended and argued:
There is no reasonable suspicion to stop the Defendant, Jonathan
Hargroder, because DPS failed to prove that a Traffic Code violation
occurred. If you look at [the peace officer’s report] there’s statements
of traveling above posted speed limit and driving on improved shoulder
when prohibited are conclusory and do not establish reasonable
suspicion to stop the Defendant.
The Department responded that “you’re not allowed to drive on the improved
shoulder without one of the exceptions listed in the Transportation Code [and]
[a]ccording to Trooper Perrault, none of those existed, and the stop was justified[.]”
The ALJ made the following Findings of Fact in its Administration Decision:
1) On December 7, 2019, reasonable suspicion to stop the Defendant
existed, in that Officer Perrault observed the Defendant driving a white
Chevrolet Silverado pickup truck on FM 92 in Hardin County, Texas,
and the Defendant drove on the improved shoulder when prohibited.
2) On the same date, probable cause to arrest the Defendant existed, in
that probable cause existed to believe that the Defendant was operating
a motor vehicle in a public place while intoxicated, because in addition
to the facts in No. 1: Officer Perrault observed the Defendant had an
odor of an alcoholic beverage, red, bloodshot eyes, slow, slurred
speech, and a disheveled appearance. Officer Perrault administered the
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HGN test and observed six clues. On the Walk and Turn test, the
Defendant could not keep his balance during the instructions, started
too soon, missed heel to toe, stepped off line, used his arms for balance,
and took the wrong number of steps.
3) The Defendant was placed under arrest and was properly asked to
submit a specimen of breath or blood.
4) The Defendant was operating a motor vehicle in a public place,
Hardin County, Texas, with an alcohol concentration of 0.08 grams or
greater of alcohol per 210 liters of breath as determined by the
Defendant’s submission to a breath test as requested.
In the Conclusions of Law, the ALJ concluded that the Department proved the issues
set out in section 524.035 of the Transportation Code and that Hargroder’s license
was subject to suspension or denial for ninety days pursuant to section 524.022 of
the Transportation Code. The decision authorized the Department to suspend or deny
Hargroder’s driving privileges for the period indicated.
Hargroder then appealed the Administrative Decision to the District Court,
arguing:
Said Administrative Law Judge erred in the decision to suspend
Plaintiff’s driver’s license because there was insufficient evidence to
support reasonable suspicion to stop Plaintiff; there was insufficient
evidence to support that Plaintiff violated any traffic codes; and there
was insufficient evidence of probable cause that the officer had to arrest
Plaintiff.
The 356th District Court for Hardin County, Texas, heard the case. After a hearing,
the district court entered an order stating that “there was error in the Judgment[]”
rendered by the ALJ, and the District Court reversed the decision of the ALJ and
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rendered judgment in favor of Hargroder. 1 Neither party requested findings of fact
and conclusions of law, and the appellate record contains no findings or conclusions
of law. Thereafter, the Department appealed.
Issue
In a single issue, Appellant argues that the ALJ’s decision was not erroneous,
and the inferences drawn from Trooper Perrault’s articulated facts were sufficient to
warrant the belief that Hargroder was in violation of the Transportation Code’s
prohibition of driving on an improved shoulder, the Trooper was justified in
executing a temporary stop and detention, and the Trooper’s observations during the
stop and detention supported his arrest of Hargroder for driving while intoxicated.
According to the Department, because the uncontroverted record from the
administrative hearing supports a conclusion that the Department met its burden of
proof on Hargroder’s arrest for driving while intoxicated, the trial court was required
to leave the ALJ’s decision undisturbed. Appellant further argues that Hargroder
failed to negate any of the facts and circumstances in the Department’s evidence at
trial. Appellant argues that the district court “substituted its judgment for the
judgment of the ALJ[,] which does not comport with the standard of review” that
should have been applied by the district court.
1
The appellate record includes a letter from the court reporter stating that the
hearing in the 356th District Court was held via Zoom and that no record was taken.
5
Hargroder argues that the evidence the Department presented at the
administrative hearing was insufficient to support the ALJ’s finding that reasonable
suspicion existed to stop Hargroder. According to Hargroder, Perrault’s report
“merely concluded that Hargroder was ‘traveling above the posted speed limit and
driving on the improved shoulder when prohibited[]’” and the record showed no
evidence of the seven permissible reasons when a driver may drive on an improved
shoulder.
Standard of Review
Judicial review of administrative license-suspension decisions is governed by
a “substantial evidence standard.” See Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d
128, 131 (Tex. 1999). A court applying the substantial evidence standard of review
may not substitute its judgment for that of the agency. See id. (citing Tex. Gov’t
Code Ann. § 2001.174; Tex. Health Facilities Comm’n v. Charter Medical-Dallas,
Inc., 665 S.W.2d 446, 452 (Tex. 1984)). The reviewing court may consider only the
record on which the ALJ’s decision was based. See Tex. State Bd. of Dental Exam’rs
v. Sizemore, 759 S.W.2d 114, 116 (Tex. 1988). Whether substantial evidence
supports the administrative decision is a question of law, and on questions of law,
neither the trial court nor the ALJ is entitled to deference on appeal. Tex. Dep’t of
Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam).
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In the original administrative hearing, the agency itself is the primary fact-
finder, and on appeal, the question to be determined by the trial court is strictly one
of law. Id.; Firemen’s & Policemen’s Civ. Serv. Comm’n v. Brinkmeyer, 662 S.W.2d
953, 956 (Tex. 1984) (citing Bd. of Firemen’s Relief & Retirement Fund Trustees of
Hous. v. Marks, 242 S.W.2d 181, 183 (1951)); Gilder v. Meno, 926 S.W.2d 357, 361
(Tex. App.—Austin 1996, writ denied) (Judicial review of an administrative
decision “requires the reviewing court to decide a hypothetical question: whether
there exists at the time of judicial review a lawful basis in fact for what the agency
did at an earlier time.”). We also review de novo the trial court’s determination of
whether substantial evidence supports the administrative decision. See Alford, 209
S.W.3d at 103.
Section 724.047 of the Transportation Code provides that “Chapter 524
governs an appeal from an action of the department, following an administrative
hearing under this chapter, in suspending or denying the issuance of a license.” See
Tex. Transp. Code Ann. § 724.047. Section 524.043 establishes the rules for an
appeal, but it does not define the scope of review. See id. § 524.043; see also Alford,
209 S.W.3d at 103. The Texas Government Code provides that:
If the law authorizes review of a decision in a contested case under the
substantial evidence rule or if the law does not define the scope of
judicial review, a court may not substitute its judgment for the judgment
of the state agency on the weight of the evidence on questions
committed to agency discretion but:
(1) may affirm the agency decision in whole or in part; and
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(2) shall reverse or remand the case for further proceedings if
substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are:
(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.
See Tex. Gov’t Code Ann. § 2001.174; see also Nucor Steel v. Pub. Util. Comm’n
of Tex., 168 S.W.3d 260, 267 (Tex. App.—Austin 2005, no pet.) (explaining that,
under the “substantial evidence rule,” a reviewing court does not substitute its
judgment for an agency’s decision unless a subsection of section 2001.174(2)
applies).
The dispositive issue for the reviewing court is not whether the agency’s
decision was correct but whether some reasonable basis exists in the record for the
agency’s action. See Mireles, 9 S.W.3d at 131. Similarly, we must affirm
administrative findings in contested cases if more than a scintilla of evidence
supports them, and we may affirm the agency’s decision “even if the evidence
preponderates against it.” See id.; see also R.R. Comm’n of Tex. v. Torch Operating
Co., 912 S.W.2d 790, 792-93 (Tex. 1995) (“Substantial evidence requires only more
than a mere scintilla[.]”). In conducting our de novo review, we must decide “‘not
whether the agency’s decision was correct, but only whether the record demonstrates
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some reasonable basis for the agency’s action.” Rodriguez v. Tex. Dep’t of Pub.
Safety, No. 09-15-00147-CV, 2016 Tex. App. LEXIS 13780, at **3-4 (Tex. App.—
Beaumont Dec. 29, 2016, no pet.) (mem. op.) (quoting Mireles, 9 S.W.3d at 131).
Analysis
Appellee argued to the ALJ that the statements in Trooper Perrault’s report
were conclusory, and in his Petition for Appeal of Administrative Decision he
argued “there was insufficient evidence of probable cause[.]” On appeal to this
Court, he argues that “[t]he record is completely void of any evidence, testimonial
or otherwise, regarding any of the seven approved permissible reasons that a driver
may operate a vehicle on an improved shoulder or that doing so was unsafe.”
According to Appellee, the evidence was insufficient to support the traffic stop “as
it amounts to nothing more than a conclusory statement.” Appellee failed to argue
to the ALJ or the district court that the Department did not present evidence of the
“seven approved permissible reasons that a driver may operate a vehicle on an
improved shoulder.” Consequently, he has waived this argument for appeal. See Tex.
R. App. P. 33.1; Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—
Houston [14th Dist.] 2005, pet. denied) (a party’s argument on appeal must comport
with its argument at trial).
A police officer can stop and briefly detain a person for investigative purposes
if the officer has a reasonable suspicion supported by articulable facts that criminal
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activity may be in progress or about to occur, even if the officer lacks evidence rising
to the level of probable cause. Terry v. Ohio, 392 U.S. 1, 29 (1968); Woods v. State,
956 S.W.2d 33, 35 (Tex. Crim. App. 1997). We examine the reasonableness of a
temporary detention in light of the totality of the circumstances. See United States v.
Cortez, 449 U.S. 411, 417 (1981) (explaining “the totality of the circumstances—
the whole picture—must be taken into account[]” when determining whether
reasonable cause for a traffic stop exists); Carmouche v. State, 10 S.W.3d 323, 328
(Tex. Crim. App. 2000); Woods, 956 S.W.2d at 38. To support a reasonable
suspicion, the articulable facts must show “‘that some activity out of the ordinary
has occurred, some suggestion to connect the detainee to the unusual activity, and
some indication that the unusual activity is related to crime.’” Derichsweiler v. State,
348 S.W.3d 906, 916 (Tex. Crim. App. 2011) (quoting Meeks v. State, 653 S.W.2d
6, 12 (Tex. Crim. App. 1983)). Therefore, for reasonable suspicion to exist, it is not
necessary that an actual violation occurred; rather, all that is necessary is that “the
officer reasonably believed that a violation was in progress.” Green v. State, 93
S.W.3d 541, 545 (Tex. App.—Texarkana 2002, pet. ref’d); Cook v. State, 63 S.W.3d
924, 929 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d). In determining whether
an officer’s suspicion was reasonable, we employ an objective standard: whether the
facts available to the officer at the moment of detention warrant a person of
reasonable caution to believe that the action taken was appropriate. See Terry, 392
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U.S. at 21-22; Hernandez v. State, 983 S.W.2d 867, 869 (Tex. App.—Austin 1998,
pet. ref’d) (citing Davis v. State, 947 S.W.2d 240, 243 (Tex. Crim. App. 1997)).
Section 545.058(a) of the Texas Transportation Code provides that a motorist
may drive on an improved shoulder to the right of the main traveled portion of a
roadway if that operation is necessary and may be done safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled
portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.
Tex. Transp. Code Ann. § 545.058(a) (Driving on Improved Shoulder). The Court
of Criminal Appeals has explained that the statute “does not set up a shifting-burden,
self-defense-style framework[.]” Lothrop v. State, 372 S.W.3d 187, 191 (Tex. Crim.
App. 2012). The Court explained:
[T]he offense of illegally driving on an improved shoulder can be
proved in one of two ways: either driving on the improved shoulder was
not a necessary part of achieving one of the seven approved purposes,
or driving on the improved shoulder could not have been done safely.
Merely driving on an improved shoulder is not prima facie evidence of
an offense. Thus if an officer sees a driver driving on an improved
shoulder, and it appears that driving on the improved shoulder was
necessary to achieving one of the seven approved purposes, and it is
done safely, that officer does not have reasonable suspicion that an
offense occurred.
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Id. (citing Castro v. State, 227 S.W.3d 737, 741 (Tex. Crim. App. 2007) (explaining
the standard for reasonable suspicion)). In Lothrop, the officer initiated a traffic stop
“based solely” upon seeing the defendant pass a slowing car on the shoulder, and the
officer “did not testify that the appellant’s driving was unsafe, or that the appellant
violated any other laws.” Id. at 189 (emphasis added). The Court held that the officer
did not have reasonable suspicion for the traffic stop based on section 545.058. Id.
at 191.
The record in this case is factually distinguishable from that in Lothrop
because Perrault stated in his sworn report not only that Hargroder was “driving on
[the] improved shoulder” but also that he did so “when prohibited[]” and that he was
“travelling above the posted speed limit[.]” Unlike in Lothrop, there was evidence
that Hargroder was violating another law—namely, driving above the posted speed
limit 2. While the record from the administrative hearing may not be sufficient to
support a conclusion that Hargroder actually violated section 545.058, reasonable
suspicion does not require proof that a traffic violation has occurred to justify a
traffic stop. See Derichsweiler, 348 S.W.3d at 916; Cook, 63 S.W.3d at 929.
Considering the totality of the circumstances and “the whole picture[,]” we
conclude that there was substantial evidence sufficient to support the ALJ’s finding
2
A speed in excess of the limit established by law “is prima facie evidence
that the speed is not reasonable and prudent and that the speed is unlawful.” Tex.
Transp. Code Ann. § 545.352(a).
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of fact that reasonable cause supported the traffic stop of Hargroder. See Cortez, 449
U.S. at 417; Terry, 392 U.S. at 29; Woods, 956 S.W.2d at 35. In other words, some
reasonable basis exists in the record for the ALJ’s decision. See Mireles, 9 S.W.3d
at 131. Finding no basis for the district court’s determination “that there was error
in the Judgment[]” based on the record before us, we sustain Appellant’s issue on
appeal. See Tex. Gov’t Code Ann. § 2001.174(2) (outlining the criteria for reversal
of an administrative decision). We conclude that the district court erred when it
reversed the ALJ’s decision and rendered judgment in favor of Hargroder.
Therefore, we reverse the district court's judgment and render judgment reinstating
the ALJ's order authorizing the suspension of Hargroder’s driving privileges.
REVERSED AND RENDERED.
_________________________
LEANNE JOHNSON
Justice
Submitted on July 15, 2021
Opinion Delivered August 26, 2021
Before Golemon, C.J., Horton and Johnson, JJ.
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