dissenting.
I disagree with the majority concerning point of error one. I would sustain it and hold that the trial judge erred by not granting appellant’s motion to suppress based on collateral estoppel.
For several reasons, I believe that this case is not controlled by State v. Brabson, 966 S.W.2d 493 (Tex.Crim.App.1998). Eight months before Brabson, the court decided State v. Aguilar, 947 S.W.2d 257 (Tex.Crim.App.1997). In Aguilar, the Court of Criminal Appeals stated that “the Court of Appeals was correct in finding that the doctrine of collateral estoppel might, in principle, bar the State from relitigating fact issues found in a previous administrative license revocation proceeding_” Id. at 261. Although Brabson generated four opinions, only the dissenting opinion mentioned Aguilar. Thus, despite the holding in Brabson, Aguilar has not been distinguished or overruled, at least expressly. Because the statement quoted above from Aguilar was obviously important, to Texas law, because the Brabson holding rests on at least one basis that had nothing to do with the issues in Aguilar, and because I doubt that a Court of Criminal Appeals intent on rapidly abandoning Aguilar would not do so expressly, I would decline to hold that Aguilar was implicitly overruled in Brabson.
One reason for the Brabson holding was that the controlling statute did not authorize the administrative law judge to make the finding on probable cause to arrest that Brabson then sought to use as a collateral estoppel bar. At 496. As the Brabson court noted, that statute has now changed. The new statute, which controls this ease, authorizes the administrative law judge to find whether “reasonable suspicion or probable cause existed to stop or arrest the person.” Brabson, at 497 n. 6 (citing Tex. Transp. Code Ann. § 724.042(1) (Vernon Pamph. 1998)). It is hardly surprising for Brabson to hold that if an administrative law judge makes unauthorized findings, those unauthorized findings will not constitute a collateral estoppel bar. See Church v. State, 942 S.W.2d 139, 140 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd) (refusing to give collateral estoppel effect to a finding of fact that was outside the ALJ’s power to adjudicate). That has no bearing on this case, of course, because this administrative law judge had authority to find that police lacked reasonable suspicion to stop appellant.
The Brabson court held, however, that this did not matter because the legislature has so stated. The court noted that “the legislature has expressly provided that the determination of the administrative judge ‘does not preclude litigation of the same or similar facts in a criminal prosecution.’ See Tex. Transp. Code Ann. § 724.048(a)(3) (Vernon Pamph. 1998)...: ” At 497 n. 6. Section 724.048(a)(3) is the same as the statute in State v. Aguilar, 947 S.W.2d at 261 n. 5. It is also the same as the now repealed Tex. Rev.Civ. Stat. Ann. art. 6687b-1, § 5(d),1 which this Court declared unconstitutional in Arnold v. State, 920 S.W.2d 704, 708 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd). I *497believe these statutes are all unconstitutional for the same reason. When, as here, we are dealing with an issue of constitutional law, “It is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176, 2 L.Ed. 60 (1803).
The Brabson court held that these statutes are valid, citing United States Supreme Court authority that “Congress may provide by statute that common-law collateral estoppel principles do not apply to findings of administrative agencies acting in a judicial capacity.” Brabson, at 497 n. 6. I doubt that that principle controls this case. I doubt that we are dealing here with common-law collateral estoppel that Congress or the Texas Legislature may declare inapplicable. In Aguilar, the court said it was dealing with collateral estoppel as “given effect through the double jeopardy clause_” Aguilar, 947 S.W.2d at 259. Contra Brabson, at 495 n. 2.
Yet another basis for the Brabson holding is that the issue of probable cause for arrest is not an ultimate fact, and therefore, a finding of no probable cause could not generate a collateral estoppel bar. At 497. I agree that in Brabson, probable cause was not an ultimate fact before the administrative law judge; it was not even an issue within his power to decide. But the opposite is true here. It was an ultimate issue here because the statute changed and authorized the administrative law judge to decide it. Probable cause was also an ultimate issue at appellant’s motion to suppress hearing, although not an element of the driving while intoxicated (DWI) offense. I have always assumed that we limited collateral estoppel to findings of ultimate fact in order to guarantee that we barred relitigation only of issues actually litigated in the first proceeding. If that is our policy, it was followed in this case. The administrative law judge found an ultimate fact in the hearing before him.2
The final basis for the Brabson opinion concerns me the most. It is that collateral estoppel does not apply because the Texas Department of Public Safety and the Dallas County District Attorney are not “the same parties.” At 496. I believe they are not parties at all. They are different parts of the executive branch of the State of Texas.3 The Brabson opinion states that an underlying principle of collateral estoppel is that “a party should have an opportunity to litigate an issue of ultimate fact” and “the Dallas County District Attorney had no opportunity to litigate the issue of probable cause for appellee’s arrest in the administrative proceed-ing_” At 496 n. 4. The Dallas County District Attorney did not have that opportunity. The Dallas County District Attorney is simply that, a lawyer. His client, the State of Texas, was the party, and it had notice and motive to aggressively prosecute the issue of ultimate fact in the license revocation proceeding, just as it might do by and through its lawyer, the Dallas County District Attorney, in the DWI case. The concurring opinion in Brabson elaborates on this theme. It emphasizes that Texas is big and its government decentralized. This is surely true, as it is of almost every other state. In fact, only authority from other states, not from Texas, is cited for this proposition in Brabson. Such a holding is, in my opinion, at least questionable under Waller v. Florida, 397 U.S. 387, 394-95 90 S.Ct. 1184, 1188-89, 25 L.Ed.2d 435 (1970).
I would follow Aguilar, sustain the first point of error, reverse the judgment, and remand the cause.
. Act of Jan. 19, 1993, 73rd Leg., R.S., ch. 866, § 1, 1993 Tex. Gen. Laws 3516, 3517.
. The Court of Criminal Appeals has stated that collateral estoppel applies to evidentiary facts, as well as to ultimate facts. Dedrick v. State, 623 S.W.2d 332, 336 (Tex.Crim.App.1981) ("Facts so established in the first trial may not be used in the second trial as ultimate or as evidentiary facts."). That statement seems broader than the holding in Dedrick, which concerned the ultimate fact of identity. Id. at 336 n. 1. Moreover, such a holding regarding evidentiary facts would be doubtful. See Grady v. Corbin, 495 U.S. 508, 521-22, 110 S.Ct. 2084, 2093, 109 L.Ed.2d 548 (1990) (inquiry is what conduct the State must prove, not the evidence it will use), overruled by United States v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 2860, 125 L.Ed.2d 556 (1993).
. Contra State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 928 (Tex.Crim.App.1994) (plurality opinion).