dissenting.
[¶ 28.] I dissent on Issue I and concur on Issue II.
[¶ 29.] The Department, as an administrative agency, has only the authority the legislature expressly delegates to it. The legislature in SDCL § 32-12-52.1 does not expressly give the Department the authority to consider ten-year-old convictions in revoking drivers’ licenses. I find the Department exceeded its authority.
[¶ 30.] The statutory clause upon which the Department bases its authority states that the Department shall revoke the license of a person convicted of DUI “to the extent that the driver license or privileges should have been revoked, if the judgment and sentence of the trial court failed to invoke the mandatory provisions of §§ 32-23-2 to 32-23-4, inclusive, or the driver had been charged and convicted consistent with the records of the Department of Commerce and Regulation.” SDCL § 32-12-52.1. To interpret the statute to give the Department authority to look back ten years would require this Court to read words into the statute that are not there.
[¶ 31.] The majority opinion relies on Matter of Revocation of Driver License of Fischer, in which the Court in applying a prior version of SDCL § 32-12-52.1 allowed the Department to revoke Fischer’s operating permit for one year when he pleaded guilty to a first-offense DUI approximately one year after his conviction for a previous first-offense DUI. 395 N.W.2d 598, 599 (S.D.1986). I also believe that Fischer controls the case before us, however, disagree on its application. The look-back statute was not an issue in Fischer nor did the Court address it because the two convictions were within the four year limitation of SDCL § 32-12-49. The issue in Fischer was whether the statute allowed the Department to revoke a license in a case where the prosecutor had *735only charged a first offense DUI and the Department records indicated it could have been charged as a second offense DUI and where the court imposed the mandatory minimum revocation. The Fischer Court found that the Department had the authority to revoke the license based upon the language of that portion of the statute allowing the Department to revoke if the “operator had been charged and convicted consistent with Department records.” Id. at 600. In Fischer, the Court found that the statute was ambiguous and was not limited only to instances where the court had failed to impose mandatory minimum license revocations. Id. The Court determined that the statute allowed the Department to revoke a license not only when the trial court failed (1) “to impose the minimum statutory revocation,” but also (2) when the prosecutor had failed to charge as a second or subsequent offense. Id. The Court stated, “The statute as originally enacted gave Department authority to act in instances of judicial leniency. The amendment adds nothing in that regard but, where it refers to ‘charged and convicted,’ we believe that it is meant to deal with prosecutorial leniency or oversight.” Id.
[¶ 32.] Fischer was not a case of judicial leniency — the trial court properly imposed the mandatory mínimums for a first-offense DUI. Fischer was a case of prose-cutorial leniency. With prosecutorial leniency, the Court found the Department had authority to revoke under the second element of the statute which gave it the authority “to the extent it should have been revoked if: ... (2) the operator had been charged and convicted consistent with Department records.” Id. So too is the case before us. Maas was charged and convicted of two DUI, first offenses. The judge, as required by statute, imposed the mandatory thirty-day revocation — clearly not a case of judicial leniency.
[¶ 33.] This Court has consistently ruled that an agency has only the authority granted to it by statute.
The general rule is that administrative agencies have only such adjudicatory jurisdiction as is conferred upon them by statute. Furthermore, ‘[an administrative agency] may not acquire jurisdiction by estoppel or consent, and, where it acts without jurisdiction, its orders are void.’ An agency has only such power as expressly or by necessary implication is granted by legislative enactment; agency may not increase its own jurisdiction and, as a creature of statute, has no common-law jurisdiction nor inherent power such as might reside in a court of general jurisdiction.
O’Toole v. SD Retirement System, 2002 SD 77, ¶ 15, 648 N.W.2d 342, 346 (citations omitted).
[¶ 34.] The question, here, is what revocation authority has the legislature conferred upon the Department in SDCL § 32-12-52.1. This is one of several statutes in SDCL Ch. 32-12 and -12A wherein the legislature has defined the Department’s authority. By this delegation, the legislature gave the Department the power to revoke or suspend a driver’s license but only in certain circumstances. Some of the circumstances are described in SDCL § 32-12-^9 and in SDCL § 32-12-52.1. In SDCL § 32-12^49, the law lists eight categories under which the Department can suspend, revoke or cancel a driver’s license or privilege. In SDCL § 32-12-52.1, the law directs the Department to revoke the driver’s license of someone convicted of a DUI in the following instances, first, when the trial court failed to revoke it as mandated in “ §§ 32-23-2 to 32-23-4, inclusive” and, second, when someone is convicted of a DUI and the prosecutor had not charged it as a second or third offense. *736It is important to note that the legislature stopped short of authorizing the Department to revoke when a court fails to impose the mandatory two-year revocation for fourth and subsequent DUI’s in SDCL § 32-23^.6. Noteworthy also is the 'absence of any reference to the ten-year look-back statute allowed to prosecutors in SDCL § 32-23-4.1. Had the legislature intended to give the Department a ten-year look-back it could have amended the drivers’ license statutes at the same time it amended the criminal statutes.
[¶ 35.] In the first instance designated in SDCL § 32-12-52.1, the Department’s revocation authority arises after the driver has been charged and convicted as a second or third offender with all the corresponding rights and procedures of the criminal justice system and as this Court stated in Fischer when a lenient court failed to impose the mandatory minimum. In the second instance, the driver has not been charged or convicted as a second or subsequent offender in a court of law, that is, a prosecutor has chosen not to charge the offense as a second or subsequent DUI. In this case, the first element of the statute cannot apply because the court had imposed the mandatory revocation. Therefore, the Department can only revoke under the second element of the statute, as if “the driver had been charged and convicted consistent with the records of the Department of Commerce and Regulation.” SDCL § 32-12-52.1. The administrative authority to proceed based upon its own records is outlined in SDCL § 32-12-49 and specifies a person’s right to a chapter 1-26 administrative hearing. Without specific authority in SDCL § 32-12-51.1 to use ten-year old convictions, the Department must rely on its administrative authority in SDCL § 32-12-49 which prohibits the Department from considering offenses more than four years old. I would reverse the trial court and reinstate the ALJ’s decision on Issue I.