Opinion issued August 29, 2013

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 12 - 00259 - CV

——————————— ROBERT FRANKLIN HODG E , Appellant V. TEXAS DEPARTMENT OF PUBLIC SAFETY , Appellee On Appeal from the County Civil Court at Law No. 1 Harris County, Texas Trial Court Ca se 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.2 Hodge appeals the trial court ’ s judgment upholding the suspensi on 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 suspen sion of Hodge ’ s licens e . 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 i ntoxicated. Hodge ’s breath sample registered a blood alcohol concentration of 0.22 , which is over the legal limit of 0 .08. See T EX . P ENAL C ODE A NN . § 49.01(2)(B) (West 2011). Accordingly, the Department of Public Safety ( “ Department ” ) administratively suspended Hodge ’ s driver ’ s license
. See T EX . T RANSP . C ODE A NN . § 524.012(b)(1) (West 2013 ). Hodge requested a hearing before an ALJ. See i d. § 524.031 (West 2013 ). Ho dge ’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 , adopt ing the 150

- mile limit f

or issuing subpoenas found in Texas Rule of Civil Procedure 176.3
. See T EX . R. C IV . P. 176.3. Evidence against Hodge included the results of the analysis of the3 breath sample he provided showing a blood alcohol concentration of 0.22. The ALJ upheld the Department ’ s suspen sion of Hodge ’ s lic e nse. Hodge appealed and the county court at l a w remanded for the ALJ to “ consider more evidence. ” On remand, the ALJ again upheld the suspension , and t he 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 Texa s 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. T EX . T RANSP . C ODE A NN . § 524 .01 2 (b)(1). If the person timely requests a hearing, a hearing before an ALJ wit h 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 h earings on administrative license suspensions
. 1 T EX . A DMIN . C ODE § 159.1 (a) (West 2013 ) ( “ This chapter applies to contested hearings before S OAH concerning administrative suspension
. . . of drivers ’ licenses under the Administrative License4 Revocation (ALR) Program governed by Texas Transportation Code, Chapters 522, 524, and 724. ” ). Section 159. 7 of the TAC provides that the provisions of Ch apter 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 T EX . A DMIN . C ODE § 159.7 (West 2013 ) ; see also T EX . T RANSP . C ODE A NN . § 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 co ntested 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 T EX . A DMIN . C ODE § 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 detenti on ” and one for “ the peace officer who was primarily responsible for finding probable cause to arrest the defendant. ” 1 T EX . A DMIN . C ODE § 15 9
. 10 3 (b) (West 2013 )
. W he re , 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 subpoena s . Cf. T EX R. C IV .5 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
. ” T EX . G OV ’ T C ODE A NN . § 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 rig hts 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.

— Hous ton [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 s ubpoena is reviewed for abuse of discretion). An abuse of discretion occurs when the ALJ acts arbitrarily or unreasonably, without reference6 to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 24 1

– 4 2 (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 T EX R. C IV . 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 th e current version of sections 159.7 and 15 5.3 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 15 5 .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 T EX . A DMIN . C ODE § 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)
. B ecause the ALJ was expressly authorized to cons ider the Texas Rules of Civil Procedure, the ALJ did not act without reference to any guiding rules or7 principles when he applied the 150

- mile limit in Texas Rule of Civil Procedure 176.3 . Accordingly, we hold that t he ALJ ’ s application of the 150

- mile li mit Texas Rule of Civil Procedure 176.3 was not an abuse of discretion
. See T EX . G OV ’ T C ODE A NN . § 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 discreti on, 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

- exami ne 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 Constitution s , his argument fails. U.S. C ONST . amend. VI; T EX . C ONST . art. I, § 10. An administrative license suspension proceeding is a civil proceeding. T EX . T RANSP . C ODE A NN . § 524.012 (e)(1); Tex
. Dep ’ t of Pub. Safety v. Walter , 979 S.W.2d 22, 26 (Tex. App.

— Hous ton [14th Di st.] 1998, no pet.)
. There is no constitutional right to confront witnesses in a civil proceeding. See U.S. C ONST . amend. VI (“ In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him . . . .”); T EX . C ONST . art. I , § 10 (“ In all criminal prosecutions the accused
. . . shall be confronted by the8 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 argu ment also fails t o the extent it rests on the due process clauses of the United States and Texas Constitutions
. U.S. C ONST . amend. XIV; T EX . C ONST . art. I, § 19. We agree with Hodge’s contention on rehearing that t he right to cross examine adverse witnes ses 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 Tay lor , 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 comp el 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 compulsory9 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 def endant 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, w e 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 D ecision 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 ob tained 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 T EX . A DMIN . C ODE § 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 d id not err in admitting the complained

- of evidence. And, because the evidence was properly admitted,10 the trial court correctly concluded that substantial evidence supported the ALJ’s decision. Conclusion We overrule Hodge’s sole issue. We affirm the tri al court ’ s judgment.

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