Opinion issued July 23, 2013

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-12-00439-CV

———————————

SHASHIKANT C. PATEL, Appellant

V.

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee

On Appeal from the County Civil Court at Law No. 2

Harris County, Texas

Trial Court Case No. 1006593

O P I N I O N

In his suit for judicial review,1

appellant, Shashikant Patel, challenges the 

order of the county court at law affirming an administrative law judge’s (“ALJ”) 

 1 See TEX. TRANSP. CODE ANN. § 524.031 (Vernon 2007).
2

order granting the petition of the Texas Department of Public Safety (“DPS”) to 

suspend his driver’s license for ninety days.2

 In two issues, Patel contends that the 

ALJ authorized suspension of his driving privileges without evidence of a valid 

alcohol test record and failed to grant his request for a continuance.

We affirm.

Background

Houston Police Department (“HPD”) Officer C. Guiran-Garzon stopped and 

arrested Patel for suspicion of driving while intoxicated. DPS later filed a petition 

to suspend Patel’s driver’s license, and Patel filed a request for a hearing to be held 

before an ALJ. At the hearing, DPS offered into evidence Guiran-Garzon’s sworn 

report in which he indicated that HPD Officer Tomeo saw Patel fail to signal while 

changing lanes on three separate occasions. When he stopped Patel, Tomeo 

noticed that Patel exhibited “slurred speech” and “red eyes.” Patel also exhibited 

six signs of intoxication during a horizontal gaze nystagmus test (“HGN” test). 

DPS also offered into evidence a notice of suspension of Patel’s driver’s license, 

indicating that Patel had “provided a Specimen of blood or breath and an analysis 

of the Specimen showed an alcohol concentration of .08 or greater, following an 

arrest for an offense involving the operation of a motor vehicle.” 

 2 See id. § 542.022 (Vernon Supp. 2012); id. § 542.041 (Vernon 2007).
3

Finally, DPS offered into evidence a “Breath Test Technical Supervisor 

Affidavit DIC-56.” In the affidavit, Lee Anne Spino, custodian of records for the 

Texas Breath Alcohol Testing Program, testified that on September 22, 2011, a 

breath test was administered to Patel by “J. Gomez.” Spino noted that “[a]nalytical 

results of the aforesaid test disclosed alcohol concentrations of 0.167 and 0.173, 

both of which were valid analytical results.” Patel objected to the admission of 

Spino’s affidavit, arguing that because there was “no actual breath test slip 

attached to the documentation,” a “breath test slip is a testimonial document,” and

“anything on that breath test slip would be just testimonial.” DPS asserted that, 

although a breath test slip alone is not admissible evidence, a sworn affidavit with 

testimony about its results is admissible evidence. The ALJ ruled that “even 

though there’s no breath test slip,” the affidavit contained “all the information” 

needed; thus, it admitted the affidavit into evidence “subject to [Patel’s] argument 

as to weight and sufficiency.” Patel then asked for a continuance so that he could 

“properly subpoena the officers involved or look at the documents and make a 

determination on new strategy.” After DPS asserted that a continuance would be 

improper and untimely, the ALJ denied Patel’s request. 

The ALJ then found that Officer Guiran-Garzon had reasonable suspicion to 

stop Patel and probable cause that Patel was operating a motor vehicle in a public 

place while intoxicated. The ALJ further found that Patel was “operating a motor 
4

vehicle in a public place with an alcohol concentration of 0.08 grams or greater of 

alcohol per 100 milliliters of blood as determined by [his] submission to a 

blood/breath test as requested.” The ALJ then concluded that Patel’s license was 

subject to suspension, and it ordered that DPS be authorized to suspend Patel’s 

driving privileges for ninety days.

Patel filed an “Appeal Petition and Stay of Suspension” in the county court 

at law, arguing that the ALJ had erred in considering Spino’s affidavit as evidence 

of the breath test. After a hearing, the court found that the ALJ’s decision was 

reasonably supported by substantial evidence, affirmed the ALJ’s decision, and 

ordered that the suspension of Patel’s license continue. Patel then filed a new-trial 

motion, arguing that DPS “did not establish that [his] breath test was valid, as 

required by Statute,” and, after a hearing, the trial court denied his motion. 

Sufficiency of the Evidence

In his first issue, Patel argues that the county court at law erred in affirming 

the ALJ’s decision because DPS presented no evidence of a valid breath alcohol 

test record and, thus, the ALJ’s decision was not reasonably supported by 

substantial evidence.

A person whose driver’s license is suspended following an administrative 

hearing is entitled to judicial review of the decision. See TEX. TRANSP. CODE ANN.

§ 524.041 (Vernon 2007). Judicial review is governed by the substantial evidence
5

rule. See Tex. Dep’t of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) 

(per curiam) (quoting Mireles v. Tex. Dep’t of Pub. Safety, 9 S.W.3d 128, 131 

(Tex. 1999)); Tex. Dep’t of Pub. Safety v. Guajardo, 970 S.W.2d 602, 604 (Tex. 

App.—Houston [14th Dist.] 1998, no writ). When reviewing an administrative 

decision under the substantial evidence rule, the reviewing court “may affirm the 

agency decision in whole or in part.” TEX. GOV’T CODE ANN. § 2001.174(1)

(Vernon 2008). It must reverse or remand the case if the challenger’s substantial 

rights have been prejudiced because the administrative findings, inferences, 

conclusions, or decisions are (1) in violation of a constitutional or statutory 

provision, (2) in excess of the agency’s statutory authority, (3) made through an 

unlawful procedure, (4) affected by other error of law, (5) not reasonably 

supported by substantial evidence when considering the reliable and probative 

evidence in the record as a whole, or (6) arbitrary or capricious or characterized by 

abuse of discretion or clearly unwarranted exercise of discretion. See id.; see also 

Guajardo, 970 S.W.2d at 604–05.

Whether substantial evidence supports an administrative order is a question 

of law. Alford, 209 S.W.3d at 103. The dispositive issue for the reviewing court is 

not whether the ALJ’s order was correct, but “whether the record demonstrates 

some reasonable basis for the agency’s action.” Mireles, 9 S.W.3d at 131. We 

must presume that the agency’s decision is supported by substantial evidence. Tex. 
6

Dep’t of Pub. Safety v. Walter, 979 S.W.2d 22, 27 (Tex. App.—Houston [14th 

Dist.] 1998, no pet.). Furthermore, the reviewing court must affirm the ALJ’s 

decision if more than a scintilla of evidence supports it and may affirm “even if the 

evidence preponderates against it.” Mireles, 9 S.W.3d at 131. We may not 

substitute our judgment for the ALJ’s judgment “on the weight of the evidence on 

questions committed to agency discretion.” TEX. GOV’T CODE ANN. § 2001.174

(Vernon 2008).

DPS must suspend the driving privileges of anyone the department 

determines had an alcohol concentration level of .08 grams or greater while 

operating a motor vehicle in a public place. TEX. TRANSP. CODE ANN. § 

524.012(b)(1) (Vernon Supp. 2012); see also TEX. PENAL CODE ANN.

§ 49.01(2)(B) (Vernon 2011) (defining “intoxicated” as having alcohol 

concentration of 0.08 or more). In order to prevail at a license-suspension hearing, 

DPS is required to prove by a preponderance of the evidence that (1) the operator

had an alcohol concentration of a level of .08 or greater, while operating a motor 

vehicle in a public place, and (2) there existed “reasonable suspicion to stop or 

probable cause to arrest” the operator. See TEX. TRANSP. CODE 

ANN. § 524.035(a)(1)(A), (2) (Vernon Supp. 2012).

Patel argues that DPS did not establish to the ALJ that his breath alcohol test 

was valid under the Texas Administrative Code and, thus, there is no evidence that 
7

he was operating a motor vehicle with an alcohol concentration level of .08 or 

greater. The Texas Administrative Code provides,

(b) For purposes of an ALR suspension or disqualification 

based on a breath test failure, a valid breath alcohol test 

record is required. To be considered valid, the breath test 

record must meet the following criteria:

(1) There must be no “invalid” message.

(2) Results must be clearly printed.

(3) All air blanks must be 0.000.

(4) The test record must bear the signature of the 

breath test operator.

37 TEX. ADMIN. CODE § 17.5(b) (2012) (Tex. Dep’t of Pub. Safety, Intake). The 

Code further provides that “[n]o additional report, memo, record, or maintenance 

record is required to validate the breath alcohol test.” Id. § 17.5(c). Patel asserts

that “the record is devoid of any evidence that a valid breath alcohol test record” as 

provided by section 17.5(b) “actually existed.”

Reading section 17.5(b) in context with the rest of the subchapter, we note 

that the previous section, entitled “ALR Reports,” lists the documents that a peace 

officer is required to submit to DPS after a motor vehicle operator has failed a 

breath or blood alcohol test. Id. § 17.4(2) (2012) (Tex. Dep’t of Pub. Safety, ALR 

Reports). Among the documents to be included in the report is “a copy of the 

analysis of the specimen, such as a photocopy of the breath test result.” Id. § 
8

17.4(2)(E). Although the section requires the peace officer to submit certain 

documents to DPS, it is not “intended to imply that any specific documents are 

necessary to be in evidence in a contested hearing for the department to meet its 

burden.” Id. § 17.4(4). 

The next section, entitled, “Intake,” provides that DPS “may reject an ALR 

report and decline to prosecute any ALR suspension.” Id. § 17.5(a). It then 

requires a valid breath alcohol test record and lists the four criteria cited by Patel 

for a valid breath alcohol test. Id. § 17.5(b). And a later section, entitled, 

“Hearings,” provides that all administrative hearings are governed in accordance 

with the Texas Transportation Code and Title 1, Chapter 159 of the Texas 

Administrative Code. Id. §17.9 (2012) (Tex. Dep’t of Pub. Safety, Hearings). 

Thus, it is apparent that the four requirements listed in section 17.5(b) are for 

DPS’s internal use when it is making an initial determination as to whether to 

proceed with a license revocation. There is no indication that the legislature 

intended the requirements of section 17.5(b) be met at the administrative hearing. 

Cf. Tex. Dep’t of Pub. Safety v. Cortinas, 996 S.W.2d 885, 890 (Tex. App.—

Houston [14th Dist.] 1998, no pet.) (holding that DPS was not required to prove 

officer’s compliance with administrative or statutory provisions directing him to 

provide defendant copy of criminal complaint). 
9

Rather, the Texas Transportation Code requires only that DPS establish at 

the administrative hearing, by a preponderance of the evidence, that (1) the 

operator had an alcohol concentration level of .08 or greater, while operating a 

motor vehicle in a public place, and (2) there existed “reasonable suspicion to stop 

or probable cause to arrest” the operator. See TEX. TRANSP. CODE ANN.

§ 524.035(a)(1)(A), (a)(2). And the Texas Transportation Code specifically 

provides that:

(a) The reliability of an instrument used to take or analyze a 

specimen of a person’s breath to determine alcohol 

concentration and the validity of the results of the analysis may 

be attested to in a proceeding under this subchapter by affidavit 

from the certified breath test technical supervisor responsible 

for maintaining and directing the operation of breath test 

instruments in compliance with department rule.

(b) An affidavit submitted under Subsection (a) must contain 

statements on:

(1) the reliability of the instrument and the analytical results; 

and

(2) compliance with state law in the administration of the 

program.

TEX. TRANSP. CODE ANN. § 524.038 (Vernon 2007) (emphasis added).

At the administrative hearing, the ALJ admitted into evidence Spino’s 

affidavit, wherein she testified:

I am the custodian of the records and the Certified Technical 

Supervisor for Area 003, Texas Breath Alcohol Testing Program. . . .
10

On or about 0255 CDT on 9/22/11 a breath test was administered to a 

subject by the name of SHASHIKANT C. PATEL . . . .

The test was conducted by a certified breath test operator who is 

trained in the required methodology for breath testing, namely J. 

GOMEZ, Certificate No. 22229.

The records show that the test was administered in compliance with 

the laws of the State of Texas and Regulations of the Breath Alcohol 

Testing Program. Further, the records show that the aforesaid 

instrument was reliable and in proper working condition at the time of 

the test. The test is, therefore, a valid test according to the aforesaid 

Regulations.

Analytical results of the aforesaid test disclosed alcohol 

concentrations of 0.167 and 0.173, both of which were valid analytical 

results.

(Emphasis added). The affidavit contained Spino’s statements concerning the 

reliability of the testing instrument and compliance with state law; thus, it was 

admissible as evidence of the validity of the blood alcohol test. Id. And the ALJ

also admitted into evidence Officer Guiran-Garzon’s sworn report, in which he 

noted that Patel had provided a breath alcohol specimen with results of blood 

alcohol concentration at 0.16 and 0.17. 

Thus, DPS presented more than a scintilla of evidence that Patel operated a 

motor vehicle with a blood alcohol concentration of over 0.08. See Mireles, 9 

S.W.3d at 131. Accordingly, we hold that the county court at law did not err in 

affirming the ALJ’s order authorizing suspension of Patel’s driver’s license on the 
11

ground that DPS presented no evidence that Patel’s blood alcohol concentration 

was greater than .08.

We overrule Patel’s first issue.

Denial of Continuance

In his second issue, Patel argues that the county court at law erred in 

affirming the ALJ’s decision because he was entitled to a continuance of the ALJ 

hearing after receiving Spino’s affidavit only two days before the hearing. He 

argues that his substantial rights were prejudiced as a result of the ALJ’s denial of

his motion because he could have subpoenaed the involved officers to question 

them about his breath alcohol test.

A defendant in a license-suspension hearing “shall be allowed to review, 

inspect and obtain copies of any non-privileged documents or records in DPS’s 

ALR file or in possession of DPS’s ALR Division.” 1 TEX. ADMIN. CODE

§ 159.151(1) (2013) (State Office of Admin. Hearings, Prehearing Discovery). “If 

a document is received by the defendant fewer than ten calendar days prior to the 

scheduled hearing, the judge shall grant a continuance on the request of a party.” 

Id.

Whether an administrative agency failed to follow its own regulation is a 

question of law. BFI Waste Sys. of N. Am., Inc. v. Martinez Envtl. Grp., 93 S.W.3d 

570, 575 (Tex. App.—Austin 2002, pet. denied). Administrative rules are 
12

construed in the same manner as statutes. Rodriguez v. Serv. Lloyds Ins. Co., 997 

S.W.2d 248, 254 (Tex. 1999). To determine whether an administrative rule is 

mandatory or directory, the reviewing court’s primary objective is to determine 

and give effect to the agency’s intent. Lewis v. Jacksonville Bldg. & Loan Ass’n,

540 S.W.2d 307, 310 (Tex. 1976). Although there is no bright-line test, provisions 

which are primarily for the purpose of promoting proper, orderly, and prompt 

conduct of business are not generally regarded as mandatory. See id. Also, if the 

provision directs that a certain act be done at a certain time and does not provide 

for consequences should the act not be performed, the provision is usually 

directory. See id.

Here, the administrative hearing was held on December 1, 2011. At the 

hearing, Patel asserted that DPS did not provide him with Spino’s affidavit until 

November 29, 2011, two days before the hearing, and he requested that the ALJ 

grant him a continuance. DPS argued that the request was “improper and 

untimely” because Patel had already announced that he was ready to proceed and 

had “made a decision not to subpoena anyone.” 

In Texas Department of Public Safety v. Pierce, the defendant argued that 

the ALJ abused its discretion in denying his fourth request for a continuance when 

DPS provided him a second copy of the offense report only two days before the 

suspension hearing. 238 S.W.3d 832, 834 (Tex. App.—El Paso 2007, no pet.). 
13

Under a predecessor version to the current rule, the Texas Administrative Code 

provided that an ALJ “shall” grant a request for continuance if a document was 

received by the defendant fewer than seven calendar days prior to the scheduled 

hearing. Id. at 835. The El Paso Court of Appeals concluded that the provision 

was directory, rather than mandatory, because it was designed to facilitate prompt 

and orderly hearings, it did not provide a sanction in cases of non-compliance, it 

did not specify a consequences for a denial of a continuance, and it did not identify 

a further procedure for the party whose request for a continuance is refused. Id. at 

836.

Furthermore, we note that the code later provides that the “granting of 

continuances shall be in the sound discretion of the judge, provided however, that 

the judge shall expedite the hearings whenever possible.” 1 TEX. ADMIN 

CODE § 159.207(c) (2012) (State Office of Admin. Hearings, Continuances). “A 

party requesting a continuance shall supply three dates on which the parties will be 

available for rescheduling of the hearing.” Id. “Failure to include a certificate of 

service, a certificate of conference, and three alternative dates may result in denial 

of the continuance request. . . .” Id.

Though Patel, citing section 159.191, which is listed under the heading 

“Prehearing Discovery,” asserts that he was entitled to a continuance, he did not 

request a continuance until after the hearing had already commenced. And he did 
14

not supply the ALJ with three alternative dates for a rescheduling of the hearing, as 

required by section 159.207. Accordingly, we hold that the county court at law did 

not err in affirming the ALJ’s order authorizing suspension of Patel’s driver’s 

license on the ground that the ALJ abused its discretion in denying Patel’s motion 

for continuance.

We overrule Patel’s second issue.

Conclusion

We affirm the judgment of the trial court.

Terry Jennings

Justice 

Panel consists of Justices Jennings, Brown, and Huddle.