Opinion issued April 9, 2015

In The

Court of Appeals 

For The 

First District of Texas ————————————

NO. 01-14-00312-CV

———————————

THERESA G. STOWERS, Appellant

V.

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee

On Appeal from County Criminal Court at Law No. 9

Harris County, Texas

Trial Court Case No. 1941294-Y

O P I N I O N

Theresa G. Stowers challenges the judgment of the county criminal court at 

law, affirming an administrative law judge’s decision to suspend Stowers’s driver’s 

license for 90 days. In two issues, Stowers asserts that the county criminal court at 
2

law erred by affirming the administrative law judge’s order suspending Stowers’s 

driver’s license. 

We affirm.

Background

On June 8, 2012, while on patrol, Officer M. Silman of the Houston Police 

Department was driving behind a vehicle driven by Stowers. Officer Silman 

observed Stowers weaving out of her lane and hitting the curb. He initiated a 

traffic stop of Stowers’s vehicle. 

As he approached Stowers’s car, Officer Silman smelled a strong order of 

alcohol. He also observed that Stowers’s eyes were glassy. Stowers was very 

talkative and laughing. When she got out of her car, she could not stand up and 

had to hold onto her car. Officer Silman called the DWI unit to assist.

Sergeant Casares of the DWI unit arrived at the scene. He attempted to 

administer the HGN test to Stowers but could not because she was laughing and 

giggling. He also attempted to administer other field sobriety tests. Stowers was 

both uncooperative with the testing and, when cooperative, could not perform the

tests. Sergeant Casares arrested Stowers for the offense of driving while 

intoxicated. 

A person arrested for driving while intoxicated in Texas is deemed to have 

consented to submit to the taking of a breath or blood specimen to determine its 
3

alcohol concentration.1 Under the state Administrative License Revocation 

program, if the person refuses to provide a specimen, or if the specimen provided 

has an alcohol concentration in excess of the legal limit, the Texas Department of 

Public Safety (“the Department”) will automatically suspend the person’s driver’s 

license.2

Here, Sergeant Casares requested a blood specimen from Stowers and also

read her the statutory warning regarding the possible consequences of providing or 

refusing to provide a specimen.3 Stowers agreed to provide a blood specimen, 

which showed a blood-alcohol concentration of 0.162 grams per milliliter, twice 

the legal limit. 

 

1 See TEX. TRANSP. CODE ANN. § 724.011(a) (Vernon 2011).

2 See TEX. TRANSP. CODE ANN. § 724.035(a) (Vernon 2011) (“If a person refuses 

the request of a peace officer to submit to the taking of a specimen, the department shall: 

(1) suspend the person’s license to operate a motor vehicle on a public highway for 180 

days . . . .”), § 524.012(b) (“The department shall suspend the person’s driver’s license if 

the department determines that: (1) the person had an alcohol concentration of a level 

specified by Section 49.01(2)(B), Penal Code, while operating a motor vehicle in a public 

place. . . .”); TEX. PENAL CODE ANN. § 49.01(1) (Vernon 2011) (“‘Alcohol 

concentration’ means the number of grams of alcohol per: (A) 210 liters of breath; (B) 

100 milliliters of blood; or (C) 67 milliliters of urine.”); id. § 49.01(2) (“‘Intoxicated’ 

means: . . . (B) having an alcohol concentration of 0.08 or more.”).

3 See TEX. TRANSP. CODE ANN. § 724.015 (Vernon Supp. 2014) (providing that, 

before requesting that a person submit to the taking of a specimen, an officer shall inform 

the person, orally and in writing, that a refusal or overlimit determination will result in a 

license suspension).
4

After the Department suspended her driver’s license, Stowers requested an 

administrative hearing to challenge the suspension. The hearing was conducted by 

an administrative law judge (“ALJ”). Stowers and the Department were 

represented by counsel. 

At the hearing, the Department presented the testimony of Officer Stilman 

and Sergeant Casares. The Department also offered four exhibits into evidence:

the DIC–23 Peace Officer’s Sworn Report, the DIC–24 Statutory Warning, the 

DIC–25 Notice of Suspension/Temporary Driving Permit, and the “Forensic 

Alcohol Analysis Report.” The Forensic Alcohol Analysis Report indicated that

Stowers’s blood alcohol content was 0.162 grams per milliliter. Stowers’s counsel 

stated that he had no objection to the four documents’ admission into evidence as 

public records. 

After presenting the testimony of the two officers, the Department rested, 

and Stowers stated that she had no evidence to present. The ALJ then asked for 

closing argument. The Department asked for an affirmative finding and reserved 

time. In her closing argument, Stowers asserted that, pursuant to section 724.017 

of the Transportation Code, the Department had the burden to show that the blood 

specimen “was taken by . . . somebody that’s qualified to do so.” She pointed out 

that the Department had not shown who had taken the blood sample. Stowers 

asserted, [W]e cannot make an assumption that it was taken by somebody that’s 
5

qualified. . . .” She indicated that the blood-test results should not be given “any 

weight” and “without that we think there should be a negative finding.” 

In his written administrative decision, the ALJ made the following findings 

of fact and conclusions of law:

FINDINGS OF FACT

1) On 06/08/2012, reasonable suspicion to stop the Defendant existed, 

in that Officer Silman observed defendant operate a motor vehicle at 

3800 Hidden Pines fail to maintain a single lane.

2) On the same date, probable cause to arrest the Defendant existed, in 

that probable cause existed to believe that Defendant was operating a 

motor vehicle in a public place while intoxicated, because in addition 

to the facts in No. 1, Officer Casares observed defendant to have an 

odor of alcohol, red eyes, slurred speech, poor balance, swayed, and 

admitted consuming alcohol.

3) Defendant was placed under arrest and was properly asked to 

submit a specimen of breath or blood.

4) Defendant was operating a motor vehicle in a public place, Harris 

County, Texas, with an alcohol concentration of 0.08 grams or greater 

of alcohol as determined by Defendant’s submission to a blood test as 

requested.

CONCLUSIONS OF LAW

Based on the foregoing, the Judge concludes the Department proved 

the issues set out in Tex. Transp. Code Ann. § 524.035 and that 

Defendant’s license is subject to a suspension/denial for 90 days 

pursuant to Tex. Transp. Code Ann. § 524.022.
6

The ALJ’s administrative decision also ordered that “[t]he Department is 

authorized to suspend or deny [Stowers’s] driving privileges for the period 

indicated above.”

Stowers appealed the ALJ’s decision to the county criminal court at law. 

The court affirmed the ALJ’s administrative ruling. 4

 This appeal followed.

Stowers lists two issues in her brief. In her first issue, she questions 

“[w]hether the Administrative Law Judge’s finding that [Stowers’s] blood 

specimen was lawfully taken–without requiring the Department to comply with 

§ 724.017 of the Texas Transportation Code and produce information or evidence 

as to how or where the specimen was collected–was supported by substantial 

evidence.” Stowers’s second issue generally inquires, “Whether the trial judge 

erred in affirming the Administrative Law Judge’s decision to authorize the 

suspension of Appellant’s driving privileges.” 

Review of ALJ’s Decision

A. Scope and Standard of Review

An ALJ’s decision to suspend a driver’s license is reviewed under section 

2001.174 of the Texas Administrative Procedure Act. See Mireles v. Tex. Dep’t of 

Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999). Section 2001.174 requires that a 

reviewing court reverse or remand a case for further proceedings “if substantial 

 

4 See id. § 524.041 (Vernon 2013).
7

rights of the appellant have been prejudiced because the administrative findings, 

inferences, conclusions, or decisions” are

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency’s statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the 

reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or

clearly unwarranted exercise of discretion.

TEX. GOV’T CODE ANN. § 2001.174(2)(A)–(F). 

Stowers bases her challenges to the ALJ’s decision on subparagraphs (A) 

and (E). Stowers asserts that the ALJ’s decision violated a statutory provision, 

namely Transportation Code section 724.017, and was not supported by substantial 

evidence. 

The grounds for reversal stated in subparagraphs (A) and (E) present a 

question of law, which we review de novo. See Tex. Dep’t of Pub. Safety v. 

Stanley, 982 S.W.2d 36, 37 (Tex. App.—Houston [1st Dist.] 1998, no pet.). In 
8

other words, we afford no deference to the county criminal court’s review of the 

administrative decision. 

B. Analysis

The Transportation Code required the Department to suspend Stowers’s

driving privileges because she had an alcohol concentration level of 0.08 grams or 

greater while operating a motor vehicle in a public place. See TEX. TRANSP. CODE 

ANN. § 524.012(b)(1) (Vernon 2013); see also TEX. PENAL CODE ANN.

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

concentration of 0.08 or more). To prevail at the license-suspension hearing, the 

Department was required to prove by a preponderance of the evidence that (1) 

Stowers had an alcohol concentration of .08 grams or greater while operating a 

motor vehicle in a public place, and (2) Officer Stilman had “reasonable suspicion 

to stop” Stowers or Sergeant Casares had “probable cause to arrest” her. See TEX.

TRANSP. CODE ANN. § 524.035(a)(1)(A), (2) (Vernon 2013); see also TEX. PENAL 

CODE ANN. § 49.01(2)(B). 

Stowers’s complaint centers on the first element: whether the Department 

showed that she had a blood-alcohol concentration of .08 or greater. Stowers does 

not dispute that the laboratory results, as reflected in the Forensic Alcohol Analysis 

Report, admitted into evidence as a public record, showed that her blood-alcohol 

concentration was over .08 grams. Instead, Stowers asserts that the Department 
9

did not meet its burden to establish the blood-alcohol concentration element 

because it did not offer evidence to show that her blood had been drawn in 

compliance with section 724.017 of the Transportation Code. That statute 

provides, 

(a) Only the following may take a blood specimen at the request or 

order of a peace officer under this chapter:

(1) a physician;

(2) a qualified technician;

(3) a registered professional nurse;

(4) a licensed vocational nurse; or

(5) a licensed or certified emergency medical technicianintermediate or emergency medical technician-paramedic 

authorized to take a blood specimen under Subsection (c).

(a-1) The blood specimen must be taken in a sanitary place.

TEX. TRANSP. CODE ANN. § 724.017 (a), (a-1) (Vernon Supp. 2014).

Stowers points out that the Department did not offer evidence at the 

administrative hearing to establish that her blood had been drawn by a qualified 

person in a sanitary place. See id. She asserts that the Department was required to 

show compliance with section 724.017 as part of its burden to establish her bloodalcohol concentration. 
10

Stowers intimates that the ALJ’s decision to uphold the Department’s 

suspension of her driver’s license, based on its finding that her blood-alcohol 

concentration of 0.08 grams or greater, violated section 724.017 and prejudiced her 

“right to a hearing in which the Department was required to prove compliance with 

the blood specimen statute.”5 See TEX. GOV’T CODE ANN. § 2001.174(2)(A)

(providing that reviewing court must reverse or remand a case for further 

proceedings “if substantial rights of the appellant have been prejudiced because the 

administrative findings, inferences, conclusions, or decisions” are . . . in violation 

of a constitutional or statutory provision”). Stowers also asserts that, because the 

Department did not show compliance with section 724.017, the ALJ’s decision to 

uphold the suspension of her license was not supported by substantial evidence. 

See id. § 2001.174(2)(E) (providing that ALJ decision may be reversed if not 

supported by substantial evidence).

Stowers fully acknowledges that she agreed that the laboratory analysis 

document, showing her blood-alcohol concentration, could be admitted into 

 

5 In her brief, Stowers questions whether the ALJ’s “finding that [Stowers’s] blood 

specimen was lawfully taken–without requiring the Department to comply with 

§ 724.017 of the Texas Transportation Code and produce information or evidence 

as to how or where the specimen was collected–was supported by substantial 

evidence. However, the ALJ made no express finding that that the specimen was 

lawfully taken. We construe Stowers’s statement to refer to the ALJ’s finding that 

“[Stowers] was operating a motor vehicle in a public place, Harris County, Texas, 

with an alcohol concentration of 0.08 grams or greater of alcohol as determined by 

Defendant’s submission to a blood test as requested.”
11

evidence under the public records exception to the hearsay rule. Stowers claims, 

however, that to preserve her complaint regarding non-compliance with section 

724.017, she was not required to timely object. We disagree.

We acknowledge that courts have held that establishing the components of 

Transportation Code section 724.017 are a necessary predicate for the State’s 

admission of evidence regarding a person’s blood-alcohol concentration. See, e.g.,

Garcia v. State, 112 S.W.3d 839, 848 (Tex. App.—Houston [14th Dist.] 2003, no 

pet.) (stating that, for evidence of blood-alcohol concentration to be admissible, 

there must be evidence showing compliance with section 724.017); Cavazos v. 

State, 969 S.W.2d 454, 456 (Tex. App.—Corpus Christi 1998, pet. ref’d) (holding 

that it was error to admit blood sample taken by phlebotomist without evidence 

showing he was a qualified technician under section 724.017); see also State v. 

Robinson, 334 S.W.3d 776, 778 (Tex. Crim. App. 2011) (J., Cochran, concurring) 

(explaining that, when it seeks to admit blood-alcohol concentration evidence at 

trial, the State, as proponent of evidence, must fulfill all required evidentiary 

predicates and foundations, including those of section 724.017). However, none of 

foregoing cases, nor any cited by Stowers, stands for the proposition that a timely 

objection is not necessary to preserve a complaint regarding non-compliance with 

section 724.017. To the contrary, courts in criminal cases have held that a failure 

to timely object to non-compliance with section 724.017 results in a forfeiture of 
12

that right for appeal. See, e.g., Wininger v. State, No. 14–12–01161–CR, 2014 WL 

2048421, at *3 (Tex. App.—Houston [14th Dist.] May 15, 2014, no pet.) (mem. 

op., not designated for publication) (holding that appellant’s complaint regarding 

admission of blood-alcohol test results was not preserved when objection was first 

raised after parties had rested during closing argument); Herring v. State, No. 05-

08–01699–CR, 2010 WL 1713639, at *2 (Tex. App.—Dallas Aug. 25, 2010, pet. 

ref’d) (mem. op., not designated for publication) (“Because Herring failed to 

timely object to the use of the affidavit and the related blood test results, she 

waived any objection to the admission of these documents, including any 

complaint under section 724.017 of the transportation code about the qualifications 

of the person who conducted the blood draw.”). As we have recognized in 

criminal cases, “It is well established that almost every right, constitutional and 

statutory, may be waived by failing to object.” Solis v. State, 945 S.W.2d 300, 301 

(Tex. App.—Houston [1st Dist.] 1997, pet. ref’d).

We are mindful that the legislature has defined a driver’s license suspension 

proceeding as being “a civil matter.” TEX. TRANSP. CODE ANN. § 724.048(a)(1)

(Vernon 2011). Nonetheless, the Supreme of Texas has made clear that how issues 

are resolved in criminal drunk driving cases may influence how the issue is 

resolved in a civil driver’s license suspension proceeding. 
13

In Mireles v. Texas Department of Public Safety, Mireles argued that his 

breath-test results, indicating he was legally intoxicated, were no evidence of 

intoxication because the Department had not offered extrapolation evidence. 9

S.W.3d at 130. The supreme court noted, “The license-suspension statute serves 

the remedial purpose of protecting public safety by quickly removing drunk drivers 

from the road.” Id. at 130–31 (citing Ex parte Arnold, 916 S.W.2d 640, 642 (Tex.

App.—Austin 1996, pet. ref’d)). The court continued, 

This purpose would be thwarted if the driver’s license suspension 

statute were interpreted to impose a more stringent evidentiary 

standard than that required to prosecute criminal drunk-driving 

charges. In the criminal context, Texas courts have determined that 

unextrapolated breath-test results, even though obtained after a lag 

time between driving and administration of the test, are probative 

evidence for the trier of fact to consider and weigh.

Id. at 131. 

Similarly, if we were to hold that a suspected drunk driver could raise, on 

appeal, the Department’s lack of section 724.017 compliance evidence, without 

first making a timely objection, then we would be giving the driver more rights 

than she has in a criminal drunk driving case in which she must object to the lack 

of such evidence to preserve her complaint. As in Mireles, to treat the Department 

more stringently in a civil suspension proceeding than the State is treated in a 

criminal prosecution would serve to undermine the license-suspension statute’s 
14

“remedial purpose of protecting public safety by quickly removing drunk drivers 

from the road” by potentially protracting the proceeding. See id. at 130–31.

The supreme court also explained in Mireles that the Transportation Code 

required only that the Department show that the driver’s blood-alcohol level was at 

or above the legally defined limit in order to support the driver’s license 

suspension. See id. The court stated that “[n]othing in the statutory framework 

specifically mandates extrapolation evidence.” 

Likewise, although section 724.017 sets out the qualifications for a blood 

draw, no statutory provision mandates the Department to adduce section 724.017 

compliance evidence at the administrative hearing as a component of its required 

proof to uphold a driver’s license suspension. Rather, the legislature has 

specifically enumerated in Transportation Code section 524.035 that “[t]he issues 

that must be proved” by a preponderance of the evidence at the administrative 

hearing for the ALJ to sustain the Department’s suspension of driver’s license. See

TEX. TRANSP. CODE ANN. § 524.035. With respect to blood-alcohol concentration, 

section 524.035 expressly requires the Department to prove, by a preponderance of 

the evidence, that an adult driver had an alcohol concentration of a level of .08 

grams or greater; it requires nothing more. See TEX. TRANSP. CODE ANN.

§ 524.035(a)(1)(A). Section 524.035 contains no requirement that the Department 

must prove compliance with section 724.017 as a component to sustain the 
15

Department’s suspension of a driver’s license. See TEX. TRANSP. CODE ANN.

§ 524.035. 

In support of her position that the Department must offer proof of 

compliance with section 724.017 as a necessary component to support a 

suspension, Stowers relies on Texas Department of Public Safety v. Hutcheson, 

235 S.W.3d 312 (Tex. App.—Corpus Christi 2007, pet. denied). There,

Hutcheson, who had been arrested for driving while intoxicated, refused to provide 

a blood sample because he understood that the arresting police officer would draw 

the blood himself at the police station. Id. at 313. Because he refused to submit a 

blood specimen, Hutcheson’s driver’s license was suspended. Id. At the 

administrative hearing, Hutcheson defended against the license suspension by 

asserting that he had refused to give a blood specimen because the police officer 

did not seem qualified to draw blood, and the request was made in a jail cell that 

did not look sanitary. See id. 

The Department did not object to Hutcheson’s testimony and did not present 

rebuttal testimony showing that a qualified individual was available to draw the 

blood in a sanitary place. Id. The ALJ sustained Hutcheson’s driver’s license 

suspension. Id. Hutcheson appealed, and the district court reversed the ALJ’s 

decision. Id. The Department then filed an appeal. Id. 
16

The Corpus Christi Court of Appeals affirmed the district court’s judgment. 

Id. It held, “Because Officer Whitwell was not an authorized individual and 

because there is no evidence that he requested an authorized individual carry-out 

the drawing of Hutcheson’s blood specimen, we hold that the Department failed to 

present substantial evidence that there was an appropriate request.” Id. at 316. 

An important distinction exists, however, between Hutcheson and this case. 

In Hutcheson, the issue of section 724.017 was raised by Hutcheson’s testimony 

during the course of the administrative hearing and served as the basis for his 

refusal to give a blood specimen. As the Hutcheson court pointed out, “The 

Department did not object to Hutcheson’s testimony and did not present rebuttal 

testimony showing that a qualified individual was to draw the blood in a sanitary 

place.” Id. at 313. Nothing in Hutcheson suggests that the court would have 

reached the same conclusion had Hutcheson not raised the issue of section 724.017 

in his testimony. In contrast, the issue of section 724.017 compliance was not 

raised during the evidentiary portion of the administrative proceeding in this case. 

Rather, Stowers did not raise non-compliance until after the close of evidence. 

Thus, the holding in Hutcheson is inapposite to the instant case.

Lastly, Stowers intimates that it would have been futile for her to object to 

the admission of the Forensic Alcohol Analysis Report, which shows that her 

blood-alcohol concentration was over the legal limit of .08, because the report was 
17

properly admissible as a public record. She states that the report was properly 

authenticated pursuant to Rules of Evidence 902 and 1005 and was properly 

admitted under the public records exception to the hearsay rule found in Rule of 

Evidence 803(8). However, even though a document may be admissible under the 

public records exception, portions of the document may nonetheless be rendered 

inadmissible for noncompliance of another evidentiary rule. See Griffin v. Carson, 

No. 01–08–00340–CV, 2009 WL 1493467, at *4 (Tex. App.—Houston [1st Dist.] 

May 28, 2009, pet. denied) (mem. op.) (holding that, although accident report was 

generally admissible under Rule of Evidence 804(8), it may have contained expert 

opinions that were properly excluded); Wolfe v. Devon Energy Prod. Co., LP, 382 

S.W.3d 434, 450 (Tex. App.—Waco 2012, pet. denied) (“Rules of Evidence 901 

and 902 concern only authentication of evidence and do not concern the 

admissibility of the content of that evidence.”); Wright v. Lewis, 777 S.W.2d 520, 

524 (Tex. App.—Corpus Christi 1989, writ denied) (“Even though official public 

records or certified copies thereof may be admissible in evidence, that does not 

mean that ex parte statements, hearsay, conclusions and opinions contained therein 

are admissible.”). Thus, the lab report’s status as a public record did not absolve 

Stowers from raising a timely complaint regarding section 724.017 noncompliance in order to target the test results contained in the document.
18

In sum, to preserve the issue of section 724.017 non-compliance, Stowers 

was required to timely raise that issue during the administrative hearing. Raising 

the complaint for the first time during closing argument and after the laboratory 

report had been admitted into evidence did not preserve the complaint. See TEX. R.

APP. P. 33.1.

We conclude that Stowers has not shown that the ALJ violated section 

724.017 by his decision to sustain the suspension of Stowers’s driver’s license. 

See TEX. GOV’T CODE ANN. § 2001.174(2)(A). We further conclude that the

Forensic Alcohol Analysis Report, containing the results of Stowers’s blood test,

constituted substantial evidence supporting the ALJ’s finding that Stowers

operated a motor vehicle with an alcohol concentration of 0.08 grams or greater.

See TEX. GOV’T CODE ANN. § 2001.174(2)(E); see Mireles, 9 S.W.3d at 132 

(holding that breath-test results were substantial evidence supporting ALJ’s finding 

that blood-alcohol concentration exceeded legal limit). We hold that the trial court 

did not err when it affirmed the ALJ’s decision. 

We overrule Stowers’s first and second issues.
19

Conclusion 

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Huddle.