AUSTIN. TFCS 78711
November 29, 1973
The Honorable Robert W. Gage Opinion No. H- 164
County Attorney
Freestone County Re: Testimony by affidavit
Fairfield, Texas 75840 in driver’s license
suspension hearings
Dear Mr. Gage:
You have asked our opinion concerning the admissibility of an officer’s
affidavit in a driver’s license suspension proceeding under Article 802f.
Vernon’s Texas Penal Code, the “implied consent” law. Section 2 of that
article provides in part:
“If a person under arrest refuses, upon the
request of a law enforcement officer, to submit to
a chemical breath test designated by the law enforce-
ment officer as provided in Section 1, none shall be
given, but the Texas Department of Public Safety,
upon the receipt of a sworn report of the law enforce-
ment officer that he had reasonable grounds to believe
the arrested person had been driving or was in actual
physical control of a motor vehicle upon the public
highways of this State while under the influence of
intoxicating liquor and that the person had refused to
submit to the breath test upon the request of the law
enforcement officer, shall set the matter for a hear-
ing as provided in Section 22(a), Chapter 173, Acts of
the 47th Legislature, Regular Session, 1941, as amended
(Article 6687b, Vernon’s Texas Civil Statutes). . . . ”
Section 22(a), Article 6687b, of Vernon’s Texas Civil Statutes, establishes
a hearing procedure initiated by the Director of the Department of Public Safety.
The hearing is before a mayor, municipal judge or justice of the peace who reports
p. 757
The Honorable Robert W. Gage, page 2 (H-164)
his findings to the Department, which then has the authority to suspend
the license for the length of time recommended. In the event of an
adverse finding by the hearing officer, lhe licensee has the right to appeal
to the county court with the appeal to be tried de nova. On such appeal
the burden remains with the State. Department of Public Safety v. Guleke,
366 S. W. 2d 662 (Tex. Civ.App., Amarillo, 1963, no writ).
Although a driver’s license has been classified generally as a
privilege rather than a right, [Gillaspie v. Department of Public Safety,
259 S. W. 2d 177 (Tex. 1953), Lowe v. Texas Department of Public Safety,
423 S. W. 2d 952 (Tex. Civ.App., Houston [14th Dist. ] 1968, writ ref’d)],
it may not be revoked or suspended without the observance of the due
process g’uarantees of the Fourteenth Amendment to the United States
Constitution. Bell v. Burson, 402 U.S. 535 (1971).
The facts and conclusions alleged in the arresting officer’s affidavit
will involve the major, if not sole, point of contention of any hearing on
the suspension of a driver’s license for failure to submit to a chemical test
to determine the alcohol content of the blood. Due process requires that
the licensee be given an opportunity at some point to confront and cross-
examine the witness for the Department. If the licensee were not allowed
to challenge the sufficiency of the officer’s belief, he would not have an
effective right to be heard.
However, the requirements of due process do not tie the State to a
rigid procedural scheme. It has often been held that any deficiencies of
a hearing in the justice court are cured by the trial -- de novo. Texas Depart-
ment of Public Safety v. Richardson, 384 S. W. 2d 128 (Tex. 1964); Hall v.
Texas Department of Public Safety, 413 S. W. 2d 470 (Tex. Civ. App., Austin,
1967, no writ). The United States Supreme Court has impliedly adopted this
position by indicating that certain requisites of due process required in a
driver’s license suspension proceeding may be omitted at the administrative
hearing if they are afforded at the trial --
de novo. Bell v. Burson, s, at
543.
It is well established that the initial hearing before a municipal judge
or justice of the peace is an administrative rather than a judicial proceeding.
p. 758
The Honorable Robert W. Gage, page 3 (H-164)
See Attorney General Opinion M-653 (1970) and cases cited therein.
Administrative hearings are not limited by the strict rules of evidence,
and it is not error to permit the introduction of an ex parte affidavit.
Traders and General Insurance Co. v. Lincecum, 126 S. W. 2d 692
(Tex. Civ. App., Fort Worth, 1939, no writ).
Therefore, it is our opinion that it is not error to permit the intro-
duction of an officer’s affidavit at the administrative hearing on a driver’s
license suspension, where there is provision for a trial --
de novo in the
county court.
SUMMARY
Since administrative hearings are not limited to
the strict rules of evidence, introduction of an officer’s
affidavit at an administrative hearing on suspending a
driver’s license under Article 802f, Vernon’s Texas
Penal Code, is not error so long as there is an oppor-
tunity for a trial -- de novo in the county court.
APPRGVED:
Opinion Committee
p. 759