Opinion issued August 29, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00259-CV

———————————

ROBERT FRANKLIN HODGE, Appellant

V.

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee

On Appeal from the County Civil Court at Law No. 1

Harris County, Texas

Trial Court Case No. 994675

MEMORANDUM OPINION ON REHEARING

Appellant Robert Franklin Hodge has filed a motion for rehearing of our 

December 20, 2012 opinion. Appellee the Texas Department of Public Safety has 

filed a response. We grant the motion, withdraw our opinion and judgment of 

December 20, 2012, and issue this opinion in its stead.
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Hodge appeals the trial court’s judgment upholding the suspension of his 

license. After Hodge was arrested for driving while intoxicated, the Department of 

Public Safety initiated an administrative license suspension proceeding against 

Hodge. The administrative law judge (ALJ) upheld the suspension of Hodge’s 

license. On appeal to this court, Hodge contends that the ALJ erred by quashing 

Hodge’s subpoena to the arresting officer and that the trial court erred in affirming 

the ALJ’s decision. We affirm.

Background

Hodge was arrested for suspicion of driving while intoxicated. Hodge’s

breath sample registered a blood alcohol concentration of 0.22, which is over the 

legal limit of 0.08. See TEX. PENAL CODE ANN. § 49.01(2)(B) (West 2011). 

Accordingly, the Department of Public Safety (“Department”) administratively 

suspended Hodge’s driver’s license. See TEX. TRANSP. CODE ANN. 

§ 524.012(b)(1) (West 2013). Hodge requested a hearing before an ALJ. See id.

§ 524.031 (West 2013). Hodge’s attorney issued a subpoena to the arresting 

officer. The officer, however, had left the Houston Police Department and moved 

to Oregon, where he worked for a sheriff’s department. The Department moved to 

quash the subpoena. The ALJ quashed the subpoena, adopting the 150-mile limit 

for issuing subpoenas found in Texas Rule of Civil Procedure 176.3. See TEX. R.

CIV. P. 176.3. Evidence against Hodge included the results of the analysis of the 
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breath sample he provided showing a blood alcohol concentration of 0.22. The 

ALJ upheld the Department’s suspension of Hodge’s license. Hodge appealed and 

the county court at law remanded for the ALJ to “consider more evidence.” On 

remand, the ALJ again upheld the suspension, and the trial court affirmed the 

ALJ’s decision. Hodge appeals. 

The ALJ did not Err in Quashing the Subpoena

Hodge contends the ALJ erred by quashing his subpoena to the arresting 

officer on the basis of the “150-mile rule” in Texas Rule of Civil Procedure 176.3.

A. Governing Law and Standard of Review

The Department may administratively suspend a person’s driver’s license if 

that person is arrested on suspicion of DWI and subsequent testing indicates the 

person had a blood alcohol concentration in excess of the legal limit. TEX.

TRANSP. CODE ANN. § 524.012(b)(1). If the person timely requests a hearing, a 

hearing before an ALJ with the State Office of Administrative Hearings is held. 

Id. §§ 524.031, 524.033 (West 2013). The legislature has authorized the SOAH to 

promulgate rules governing these hearings. See id. § 524.002(a) (West 2013).

Chapter 159 of the Texas Administrative Code (TAC) governs hearings on 

administrative license suspensions. 1 TEX. ADMIN. CODE § 159.1(a) (West 2013)

(“This chapter applies to contested hearings before SOAH concerning 

administrative suspension . . . of drivers’ licenses under the Administrative License 
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Revocation (ALR) Program governed by Texas Transportation Code, Chapters 

522, 524, and 724.”). Section 159.7 of the TAC provides that the provisions of 

Chapter 155, which sets forth general rules governing the procedure for SOAH

hearings, apply to an ALR hearing unless they conflict with a specific provision of 

Chapter 159. 1 TEX. ADMIN. CODE § 159.7 (West 2013); see also TEX. TRANSP.

CODE ANN. § 524.002(b) (“Chapter 2001, Government Code [the Administrative 

Procedures Act (APA)], applies to a proceeding under this chapter to the extent 

consistent with this chapter.”). Section 155.3 acknowledges that the APA and 

SOAH rules will not cover “all contested procedural issues” and therefore provides 

that an ALJ “will consider . . . the Texas Rules of Civil Procedure as interpreted 

and construed by Texas case law,” among other authority, in resolving procedural 

questions. 1 TEX. ADMIN. CODE § 155.3(g) (West 2013).

Section 159.103 of the TAC sets forth the rules governing subpoenas at an 

ALR hearing. As pertinent to this appeal, an attorney may issue one subpoena for

the officer “who was primarily responsible for the defendant’s stop or initial 

detention” and one for “the peace officer who was primarily responsible for 

finding probable cause to arrest the defendant.” 1 TEX. ADMIN. CODE § 159.103(b)

(West 2013). Where, as here, the same officer was primarily responsible for both 

the stop and the arrest, the attorney may issue one subpoena. Id. Neither Chapter 

159 nor 155 sets forth any geographic limitations for subpoenas. Cf. TEX R. CIV.
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P. 176.3 (stating person may not be compelled to appear or produce documents in a 

county that is more than 150 miles from where the person resides or is served).

“[C]ourts review administrative license suspension decisions under the 

substantial evidence standard.” Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 

101, 103 (Tex. 2006) (quoting Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 

131 (Tex. 1999)). Under a substantial evidence 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.” TEX. GOV’T CODE ANN. § 2001.174

(West 2008). This case, however, does not involve a question of the weight of the 

evidence, but rather the ALJ’s decision to quash a subpoena. A reviewing court 

“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 . . . arbitrary or capricious or characterized by abuse 

of discretion or clearly unwarranted exercise of discretion.” Id. § 2001.174(2)(F); 

see also Hallum v. Hallum, No. 01-09-00095-CV, 2010 WL 4910232, at *8 (Tex. 

App.—Houston [1st Dist.] Dec. 2, 2010, no pet.) (mem. op.) (citing In re CSX 

Corp., 124 S.W.3d 149, 152 (Tex. 2003)) (stating trial court’s determination of 

motion to quash subpoena is reviewed for abuse of discretion). An abuse of 

discretion occurs when the ALJ acts arbitrarily or unreasonably, without reference 
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to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 

S.W.2d 238, 241–42 (Tex. 1985).

B. Analysis

The Trial Court’s Application of Rule 176.3 was Not an Abuse of Discretion

Hodge argues that it was an abuse of discretion for the ALJ to apply Rule 

176.3’s 150-mile limitation, because the Texas Rules of Civil Procedure expressly 

state that they apply to justice, county, and district courts, but do not state that they 

apply to administrative hearings before the SOAH. See TEX R. CIV. P. 2. Hodge 

cites Texas Department of Public Safety v. Cantu, 944 S.W.2d 493 (Tex. App.—

Houston [14th Dist.] 1997, no pet.), to support that proposition. Cantu, however, 

was decided before the current version of sections 159.7 and 155.3 were enacted. 

See 34 Tex. Reg. 329 (Jan. 16, 2009) (stating effective date of section 159.7 is 

January 20, 2009); 33 Tex. Reg. 9451 (Nov. 21, 2008) (stating effective date of 

section 155.3 is November 26, 2008). Section 159.7 states that, except in the case 

of a conflict, the general procedural rules of Chapter 155 for conducting 

administrative hearings apply. 1 TEX. ADMIN. CODE § 159.7. Section 155.3 states 

that an ALJ “will consider” the Texas Rules of Civil Procedure in determining 

questions of procedure not covered by SOAH rules in Chapter 155 or the APA. Id.

§ 155.3(g). Because the ALJ was expressly authorized to consider the Texas Rules 

of Civil Procedure, the ALJ did not act without reference to any guiding rules or 
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principles when he applied the 150-mile limit in Texas Rule of Civil Procedure 

176.3. Accordingly, we hold that the ALJ’s application of the 150-mile limit 

Texas Rule of Civil Procedure 176.3 was not an abuse of discretion. See TEX.

GOV’T CODE ANN. § 2001.174(2)(F); Downer, 701 S.W.2d at 242–43 (finding trial 

court’s choice of sanction did not amount to abuse of discretion, in part, because 

sanctions rule authorized sanction imposed by trial court). 

Hodge’s Constitutional Rights were not Violated in this Civil Proceeding

Hodge contends that adopting the “150-mile rule” violated his constitutional 

rights by depriving him of the ability to cross-examine Officer Hattan. The source 

of the right Hodge claims was violated is not clear from Hodge’s brief. 

To the extent that Hodge’s argument rests on the confrontation clauses of the 

United States and Texas Constitutions, his argument fails. U.S. CONST. amend. VI; 

TEX. CONST. art. I, § 10. An administrative license suspension proceeding is a civil 

proceeding. TEX. TRANSP. CODE ANN. § 524.012(e)(1); Tex. Dep’t of Pub. Safety 

v. Walter, 979 S.W.2d 22, 26 (Tex. App.—Houston [14th Dist.] 1998, no pet.). 

There is no constitutional right to confront witnesses in a civil proceeding. See

U.S. CONST. amend. VI (“In all criminal prosecutions, the accused shall enjoy the 

right . . . to be confronted with the witnesses against him . . . .”); TEX. CONST. art. I, 

§ 10 (“In all criminal prosecutions the accused . . . shall be confronted by the 
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witnesses against him . . . .”); Walter, 979 S.W.2d at 26 (holding no right to 

confrontation in ALR proceeding because it is civil, not criminal, proceeding). 

Hodge’s argument also fails to the extent it rests on the due process clauses 

of the United States and Texas Constitutions. U.S. CONST. amend. XIV; TEX.

CONST. art. I, § 19. We agree with Hodge’s contention on rehearing that the right 

to cross examine adverse witnesses applies in administrative hearings. Rector v. 

Tex. Alcoholic Beverage Comm’n, 599 S.W.2d 800, 800 (Tex. 1980); see also

Phillips v. Tex. Dep’t of Pub. Safety, 362 S.W.3d 252, 257 (Tex. App.—Beaumont 

2012, no pet.) (stating right to cross-examine adverse witnesses applies in ALR 

proceeding). But Hodge essentially urges us to hold that this right is without 

limits. The right to cross-examine adverse witnesses in an administrative hearing 

is not unlimited. See Ex Parte Taylor, 957 S.W.2d 43, 44–47 (Tex. Crim. App. 

1997) (holding no due process violation where hearing officer in parole revocation 

hearing limited right to cross-examine witness); Phillips, 362 S.W.3d at 258

(holding no due process violation in ALR hearing from ALJ’s refusal to issue 

subpoena for breath test technician, where statute provided for admissibility of 

affidavit and issuance of subpoena only if defendant showed good cause to require 

attendance of technician). Even a criminal defendant’s right to compel the 

attendance of witnesses is limited. See Emenhiser v. State, 196 S.W.3d 915, 921

(Tex. App.—Fort Worth 2006, pet. ref’d) (holding “the right to compulsory 
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process is not absolute”). We do not believe that due process requires that Hodge 

have an unlimited right to compel the attendance of witnesses for an ALR hearing 

when a criminal defendant does not. And Hodge has cited to no specific authority 

supporting his assertion that the application of a 150-mile geographical limit on 

subpoenas violates due process. Accordingly, we conclude that the application of 

the 150-mile limit does not deprive Hodge of due process. See Ex Parte Taylor, 

957 S.W.2d at 44–47; Phillips, 362 S.W.3d at 258. 

Admissible Evidence Supports the ALJ’s Decision

Finally, Hodge complains of the admission of evidence obtained from the 

arresting officer. Specifically, Hodge contends that, because the officer was served 

with a subpoena but failed to appear at the hearing, the ALJ was prohibited from 

considering information obtained from the officer, such as the results of Hodge’s 

breath test. The TAC specifies that “[a]n officer’s sworn report of relevant 

information shall be admissible as a public record.” 1 TEX. ADMIN. CODE

§ 159.211(c)(2) (West 2013). However, “[i]f the defendant timely subpoenas an 

officer and the officer fails to appear without good cause, information obtained 

from that officer shall not be admissible.” Id. Having determined that the ALJ did 

not err in quashing the subpoena, we conclude that the ALJ did not err in admitting 

the complained-of evidence. And, because the evidence was properly admitted, 
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the trial court correctly concluded that substantial evidence supported the ALJ’s 

decision.

Conclusion

We overrule Hodge’s sole issue. We affirm the trial court’s judgment.

Rebeca Huddle

Justice 

Panel consists of Chief Justice Radack and Justices Bland and Huddle.