dissenting.
I respectfully dissent. Section 2001.174 of the Government Code, which defines the standard of review, provides that the court of appeals may not “substitute its own judgment for that of the state agency on the weight of the evidence on questions committed to agency discretion.” Tex. Gov’t Code Ann. § 2001.174 (Vernon 2000). The statute further provides that the court of appeals may affirm in whole or in part, but “shall reverse” when “substantial rights of the appellant have been prejudiced” for any of a number of listed reasons, including an error of law. Id. § 2001.174.
The majority rejects Moore’s necessity defense on the ground that the facts do not support it without having any witnesses before it, any description of how long it had been since Moore first got into his car until he was arrested (except that he stopped in front of the police responding to the 911 call and was immediately arrested), any information as to how recently the police had secured the dangerous situation, or any evidence as to how far Moore had traveled (except that he was still in the mobile home park).
I believe the majority has reweighed the evidence, focused solely on the administrative law judge’s finding that Moore “drove away but returned when police arrived and it was safe for him to do so,” interpreted that factual finding to require a legal conclusion that the necessity defense had evaporated, so that all other facts are irrelevant, and now reverses and renders judgment contrary to the conclusion of both fact finders — the administrative law judge and the trial court — as to the weight and preponderance of the evidence. Moreover, the majority reverses without any showing that any “substantial rights of the appellant have been prejudiced” by the ruling below.1
The majority’s opinion is in contrast to the two cases on which it relies] Bush v. State, 624 S.W.2d 377, 378 (Tex.App.-Dal*276las 1981, no pet.), and Gibbons v. State, 874 S.W.2d 164, 165 (Tex App.-Houston [14th Dist.] 1994, no pet.). In both cases, the facts show the lapse of a great deal of time and distance and intervening acts between the threatening situation giving rise to the defense and the defendant’s arrest for DWI. The facts of this case show the opposite.
In my view, the majority’s conclusion is so far-reaching as to nullify the protection afforded by the statute. I therefore respectfully dissent.
. The majority notes that the DPS’s substantial rights were prejudiced by the administrative law judge's “error in applying the law to the facts as she found them” because "the DPS was entitled to judgment, and to suspend the license it issued to Moore.” The denial of the appellant’s right to win through an error of law is not a violation of a substantial right. Cf. Texas Dep’t of Pub. Safety v. Kimbrough, 106 S.W.3d 747, 751 (Tex.App.-Fort Worth 2003, no pet.) (DPS’s substantial right to meet its evidentiary burden at license suspension hearing denied by administrative law judge’s erroneous exclusion of virtually all of DPS’s admissible evidence regarding reasonable suspicion to stop and probable cause to arrest motorist).