### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00659- CV

Texas Depart m ent of Public Saf ety, A ppellan t

v. Stephen Joseph Caruana, Appellee

F ROM CO UNTY COURT AT LAW NO . 1 O F H AY S CO UNTY NO. 12,0 77- C, H ONO RAB LE H OW ARD S. WARNER, I I, J UDGE P RESIDING

D I S S E N T I N G O P I N I O N

I respe ctfully

dissent. I do not believe that section 524.011(b)( 4) of the transporta tion code and SOAH rule 159.23(c) (7), individually or toge ther, bar admis s i o n of an office r’s unsworn repor t at a license- suspension hear ing, particula rly under the fac ts of the prese nt case . Fi rst , SOAH rule 159

. 2 3 (c )( 7 ) d o es not bar the admission of an unsworn repor t. The rule is one of inclusion, providing that an o ff

i ce r’ s sworn repor

t shall be admitted as a public rec ord. The rule does not, howeve r, either on its fac e o r b y i nfer ence , prohibit admission of an unsworn repor t that would otherwise be admis sible as a public rec ord under the Tex as R ules of Eviden ce . Second, although the transporta tion code require s an office r to deliver a “sworn repor t” to the Depa

rtment afte r a DWI

arr est, the code provides no sanction if the office r fails to comply or makes a mistake in his attempt
to comply

. Moreove r, the rele vant provision does n o t ad d ress the admissibili ty of evidenc e in alicense- suspension hear ing. Consequently , even if we assume that the leg islature intended to impose

a sanction for an office r’s failure to send a “sworn” repor t, it i s n o t at al l clea

r that barr ing the repor t’s admission in a li cense -susp ensi on hear ing is what the leg islature int ended. Third, ex cept

as otherwise provided by statute or SOAH ru l e, the rules of evidenc e apply in license- suspension hear ings. See Tex. Gov’t Code Ann. § 2001.081 (W es t 2008); 1 Tex. Admin. Code § 159.23(b) (2008) ( State Offic e of A dmin. Hear ings, H ear ing) , repeale d by 34 Tex. Reg. 329 ( 2009).

Our task is to decide whether , in light of the fore g oing, the AL J abused his discretion by admitting Troope r F lores’s unswor n repor t. G iven that no rule or

statute barr ed admission and that the document was otherwise admissible, I would hold that the AL J did not abuse his discretion by admitting the repor

t. Acc ording ly , I would hold that th e agency order was supported by substantial evidence and that the tria l court should have a ffirme d the administrative dec ision.
(i) SOAH’s Ru les Do Not Prohibit A dm ission of an Unsworn Report as a Publi c Rec ord

We construe administrative rules in the same manner as statutes since they have the forc e and eff

ect of statutes. Rodriguez v. Servic e Lloyds Ins. Co. , 997 S.W .2d 248, 254 (Tex. 1999). Unless the ru l e is ambig uous, we follow the rule’s clea r lang uag e. Id. Our primary objective in interpre ting a rule is to g ive eff ect to the ag ency ’s intent. Id. We defe r to an ag ency ’s interpre tation of its own rule unless it is inconsistent with the rule or is plainly err oneous. Id. at 255. “We s hould not interpre t a rule in a way that rende rs i ts lang uag e meaningle ss.” R.K. v. Ramirez , 887 S.W .2d 836, 842 (Tex. 1994).

SOAH rule 159.23( c)( 7) states:

2An office r’s sworn repor t of rele vant informa t i o n s h al l be admissible as a public rec ord. Howeve r, the defe ndant shall have the rig ht to subpoena the o ff i cer in acc ordanc e wi t h § 1 59.17 of this title (re lating to Request for Subpoenas). I f the defe ndant timely sub p o en as t h e office r and the office r does not appea r at the schedule d hear ing, the office r’s re port shall not be admissible.

1 Tex. Admin. Code § 159.23(c) (7) (2008). The rule does two things. First, it confirms that a sworn repor t i s ad m i ssible as a public rec ord. Second, it provides a sanction if the arr esting office r is

s u b p o en aed but fails t o appea r at the hearing

. Nothing in the rule sug g ests that SOAH’s int ent i n

cra fting the rule w as to prohibit the admission of unsworn re ports as public re cords, pr ovided that the repor ts otherwise meet the require ments of the Texas Rules of Evidence

. The majority rea ds an exclusionary provision into the rule wher e none exis ts. See Rodriguez , 997 S.W .2d at 254 (unless rule is ambig uous we follow its plain lang uag e).

The majority attache s signific ance to the fac t that SOAH specific ally provided for the admission of a “sworn repor t” as a public rec ord, y et did not make rules for the admission of other evidenc e. The majority rea ds this ru l e, in conjunction with section 524.011(b)( 4) of the transporta tion code’ s require ment that an office r send a “sworn” repor t to the Depa

rtment, to exclude repor ts that are unsworn. This conclusion assumes either that SOAH rule 159.23(c) (7) is the basis for admission of the repor t— i.e. , that it rende rs an otherwise inadmissible document admissible as

a public rec ord—or that, by wording the rule as it did, SOAH at l ea s t i n t en ded to highlig ht something about the

form of the document that was require d to make it admissible as a public rec ord, presumably in light of section 524.011(4) of the tr an s p o rt at i o n code, which arguably require s an office r to transmit to the Depa rtment a repor

t under oath. Another implicit assumption is that SOAH presumably would not have bothere d to make this rule if the repor t was alre ady ad m i s s i b l e as a
3public rec ord—it woul d not just restate the obvious. I disag ree with those assumptions and the

ultimate conclusion they are used to buttress, beca use they wande r bey ond the confine s of two basic
tenets of rule interpre tation. First, unless the rule is ambig uous—which this one is not—we follow its plain lang uag e. Rodriguez , 997 S.W .2 d at 2 5 4

. He re, the rule’s plain lang uag e does not bar admission of an u n s wo rn repor t. Second, we defe r to an ag ency ’s interpre tation of its own rule unless it is inconsistent with the rule or is pla inly err oneous. Id. at 255. Her e, the AL J interpre ted the rule not to prohibit the admis sion of an unsworn report as a public rec ord, a c onclusion that is neither inc onsistent with the plain langua g e of the rule nor plainly err oneous. These two tenets of rule interpre tation, applied here , could and should end our analy sis. Ye t we have, in addition, definitive evidenc e of SOAH’s intent in making this rule from the Texas Reg ister, which the Texas Supreme Court has c alled “[o]ur best source f or the [ag ency ’s] int ent.” Id. at 254.

Wit h reg ard to §159.23(c) (7), one commenter indicated that the form of the “sworn repor t” should com p l y with the descr iption of an aff idavit pursuant to Texas Gover nment Code §312.011. The commenter stated his c oncer n that amending the lang uag e from “af

fidavit conce rning probable cause to arr est...” in §159.23(c) (6) to
“ s worn repor

t of rele vant information...” in §159.23(c) (7) w o u ld e r r o n e o u s ly b r o a d e n the admissibili ty of this repor t. SOAH disag ree s with the comments and arg uments advanc ed

. . . . The statute [t ranspor tation c ode section 524.011(b)( 4)(D) ] re fer s to a “sworn repor

t,” not to an aff

idavit.

. . . The admissibili ty of the sworn repor t is based on its status as a public rec ord per case law, Porter v. Texas Dep’ t of Transp. , 712 S.W .2d 263 (Tex. App. San Antonio 1986), and not on any perc eived simil arity to an af fidavit.
24 Tex. Reg. 1324- 25 (F eb. 26, 1999).

I n light of the comments in the Texas Reg ister, it is clea r that SOAH never intended
to prohibit admission of an “unsworn” repor t, but rathe r understood that an office r’s repor t was

4admis s i b l e b ec ause it was a public rec ord, not beca use it bore any rese mblance to an aff idavit. SOAH’s intent when adopting the term “sworn repor t” appar ently was to adopt the nomenclatur e of the transporta tion code, not to insist that an office r’s repor t be sworn in order to be admissible. See id. at 1325 (“[T]his subsection was amende d to more closely trac k t h e lang uag e in Texas Transpor tation C o de §524,011(a) (2)( B) [si c] and §524.011 (b)( 1-4) [si c].”). Rule 159.23(c) (7), there fore , mere ly restate s the law as SOAH understood it: an office r’s repor t on the circ umstances of a DWI arr est—reg ardle ss of what it is called—is admissible as a public rec ord. I n sum, the rule 1 d o es not bar admission of an unsworn repor t, and, g iven SOAH’s intent in enac ting the rule, i t i s improper to infer that SOAH’s provision for the admissibili ty of a “sworn repor t” nece ssarily implies that it meant to exclude a re port that is not sworn.
Officer Flores’s Testimony Bolsters the Re port’s Authenticity and Credibility Even taking as true the majo ri t y ’s assumptions that SOAH, in cra fting the rule to admit “sworn reports,” meant som ehow to cabin the introduction of ot her re p o rts not made under oath, i t was sti ll not an abuse of di scre tion for the AL J to admit the uns worn report i n this case in light of Offic er Flore s’s live testimony at the hear ing. I f we assume the majority ’s logic is corr ect, 2 there must have been some rea son why SOAH chose to admit only a sworn repor t as a public rec ord.

I need not specula

te why SOAH felt the need to restate the l aw in its ru l e. I wo uld note 1 only that to preva il at a hear ing, the Depa rtment must establish by a preponde ranc e of the evidenc e that there was probable cause for stopping t h e d ef en d ant and that the defe ndant failed a blood or brea th test. See Tex. Transp. Code. Ann. § 524.035(a) (1)( A), (b) (West 2007). The office r’s repor t may be a key piece of evidenc e offe red for admission at most hear ings. A convenie nt reiter ation of the law with re spect to such a common piece of evide nce mig ht streamline the he aring proce ss. I am n o t s u g g esting that his testimony conver ted the document into a “sworn repor t,” 2 althoug h I do not discount the possibil ity

. 5Allowing admission of a public rec ord is an exception to the hear say rule, see Tex. R. Evid. 803(8),

so it is conce ivable, though I t h i n k u n l i k ely , that SOAH considered an unsworn report t o lack the trustworthiness or cr edibility that would come f

rom having the re port made unde r oath. Concern about admitting h ea rs ay stems from problems with evalua ting the perc eption, m em o ry , narr ation, and sincerity of a witness who is not prese nt at the proce eding

. 3 2 Kenne th S. Br oun, et al., McCormick on Evidence § 245 (6th ed. 2006). Traditionally , courts have

overc ome these problems by (1) administering an oath, (2) requiring the witness’s prese nce at trial, and (3) subjecting the witness to cross-e x amination. Id. The public-re cords exception to the hear say rule allows such rec ords to be admitted in spite of those problems beca use the circ umstances of their

cre ation lead to a hig h probability of trustworthiness and a ccur acy . Id. § 295. I n the prese nt case , any problems with the perc eption, memory , narr ation, or sincerity of the fac ts stated in the unsworn repor t wer e overc ome by Officer Flore s’s live testimony , under oath and subject to cross-e x amination, that the fac ts stated in the repor t wer e true and corr ect. Whil e his testimony may or may not ha ve transfor

med his “ unsworn repor

t” into a “sworn repor

t,” it wa s sufficie nt to permit the AL J to conclude that the problems inhere nt with hear say —perc eption, memory , narr ative, and sincerity —wer e overc ome. I n light of this, I cannot say that the AL J abused his discretion in admitting the unswor n repor t.

The narr ation problem involves evalua ting if a non-pre sent witness’s lang uag e acc urate ly 3 convey s the impression of his or her perc eption of th e ev en t s . 2 Kenne th S. Br oun, et al., McCormick on Evidenc e § 245 (6th e d. 2006). 6(ii) Section 524.011 of the Transportat ion Code Does Not Bar Adm ission of an Unsworn Report “I n construing a statute, our objective i s to deter mine and g ive eff

ect to the L egislature’ s intent. We look first to the plain and common meaning of the statute’s word s . W e deter mine leg is l at i v e i ntent from the statute as a whole and not from isolated portions.” Harris County Hosp. Dist. v. Tomball Reg’l Hosp. , 283 S.W .3d 838, 842 (Tex. 2009) (citations and internal quotation marks omitted).

Section 524.011(b)( 4) of the transporta tion code states t h at , afte r arr esting an individual for DWI , a pea ce of fice r shall:
(4) send to the [D] epar

tment not later than the fifth business day afte r the date of the arr est: (A) a copy of the drive r’s lice nse suspension notice; (B ) any driver’ s license take n by

the offic er unde r this subsection; (C) a copy of any temporar y driving permit issued under this subsection; and (D) a sworn report of i nformation relevant to the arrest.
Tex. Transp. Code Ann. § 524.011(b) (4) ( West 2007) (emphasis adde d).

Whil e it appea

rs that section 524

. 0 1 1 is mandatory , see Tex. Gov’t Code Ann. § 311.016 (West 2005) (“‘ Shall’ imposes a duty .”), it i s we ll settled that many statutes containing such lang uag e ar e, i n fa ct , direc tory

. As the supreme court noted in Schepps v. Presby terian Hospital : [I ]f the statute direc ts, authorizes or commands an act to be done within a cer tain time, the absenc e of words restra ining the doing there of afte rwa rds or stat ing the conseque nces of failure t o ac t within the time specifie d may be considere d as a circ umstance te nding to support a direc tory construction.

7652 S.W .2d 934, 936 (Tex. 1983)

. Fur thermore , “[p] rovisions w hich are not of the esse nce of the thing to be done, but which are intended for the purpose of promoting the proper , order ly and prompt conduct of business, are not g ener ally reg arde d as mandatory .” Id. That is the case here

. The statute commands an arr esting office r to send cer tain items, including the arr esting office r’s sworn repor t,
to the Department wit hin five busines s d ay s of t he arrest. The statute does not , howeve r, provide

a sanction for failing to comply wi t h t h e p ro v ision. Moreove r, the provision does not g o to the “esse nce of t h e t h i n g to be done” in this case —allowing or barr ing admission of the repor t at a license- suspension hear ing.

I n a case simil ar t o t h e prese nt one, the Four teenth Court of Appea ls held that subsections 524.011(a) and (b) wer e direc tory and that an office r’s failure t o t i m el y compl y with 524.011(b)( 4) did not allow the defe ndant to preva il in a license-suspe nsion he aring

. Texas Dep’ t of Pub. Safety v. Cortinas , 996 S.W .2d 885, 889 (Tex. App.—Houston [14t h Dist.] 1998, no pet.). The prese nt case is simil ar to Cortinas , except here the officer m ad e an er ror in form rathe r than timing. Thus, there is an equally strong arg ument i n t he prese nt case that 524.011(b) should be construed as direc tory

. Her e, the statutory provision require s the office r to submit a “sworn repor t,” which arg uably means that it must be made und er o at h

. T h e statute provides no sanction for the office r’s failure to comply with that require ment, just as in Cortinas , wher e the transporta tion code provided no sanc tion for fa iling to meet the f ive-da y deadline. The majority d i s cusses and relies on the rea soning in Texas Departme nt of Public Safety v. Pruitt , 75 S.W .3d 634 (Tex. App.—San Antonio 2002, no pet.). I do not think that relianc e

8is justified. Wit hout revisiting the fac ts, Pruitt held that in a ref usal cas e i t wa s n o t an abuse of 4 discretion for an AL J to a dmit an unsworn re port in lig ht of the fac t tha t the statute did not require the officer to file a sworn report. Id. at 639. The majority conclude s that a l o gi ca l implication of Pruitt is that when the “statute specific ally require s a ‘sworn repor t,’ as opposed to mere ly a written
one, [t he repor

t] must be proper ly sworn in order to be admis s i ble.” Slip op., supra , at 7. The court’s actua l holding in Pruitt , howeve r, was much narr ower than the majority ’s rea ding of it here

. Pruitt held that it was not an abuse of discretion to admit an unsworn repor t u n d er the rules of evidenc e when no other statutory require ment, administrative rule, or rule of evidenc e require d the repo rt to be sworn in order to be admissible. That holding does not nece ssarily imply the

conver se— i.e. , that it is an abuse of discretion to admit, as a public rec ord, an unsworn repor t when (1) a statute that is entirely unrela ted to the admissibili ty of evidenc e in a license- suspension hear ing require s, for whateve r rea son, that a “sworn repor t ” b e sent to the Depa

rtment, but provides no sanction for failure to comply , (2) there is no other rule prohibiting its admission, and (3) the repor t is otherwise a dmissibl e as a public rec ord.
(iii) The Transportat

ion C ode in Concert with the SOAH Rul e Does Not Prohibit

Adm ission of an Unsw orn Report

The majority conclude s that “whe re the leg islature require s an arr esting office r to provide a ‘sworn rep o rt,’ and wher e SOAH’s rules specific ally provide that this ‘sworn repor t’ is admissible as a public rec ord

. . . an unsworn repor t cannot also be admissible

. . . .” Slip op., supra ,

See Tex. Transp. Code Ann. §§ 724.031-.064 (West 1999 & Sup p . 2009) (g overning 4 license suspension in case s wher e arreste d individual refuse s to provide blood or bre ath spec imen for testing ). 9at 7

. Under the rules of statutory interpre tation, courts are not at liberty to infer such leg islative

intent wher e it is not discerna ble from the plain l an gu age o f an unambig uous statute. See Texas Dep’ t of Transp. v. City of Sunset Valley, 146 S.W .3d 637 , 6 4 2 (Tex. 2004) (“I f the statutory lang uag e is unambig uous, we must interpre t it acc ording to its terms, g iving meaning to the lang uag e consistent with other provisions in the statute.”). L ikewise, rule-inter preta tion princip l es do not allow us to rew rite SOAH rule 159.23(c) (7), which unambig uously provides for the admissibili ty of

a sworn repor

t, to bar the admission of an unsworn repor t that would be otherwise admissible under the rules of

evidenc e. See R odriguez , 997 S.W .2d at 254.
(iv) The Department

of Public Safety’s Rules Are Not Applicable to This C ase Finally , the m ajority notes that, in failure case s such as this, the Depa rtment’s own rules require that the office r provide a repor t that “shall be sworn to” and must contain, among other things, the “off

icer ’s sworn repor

t.” 37 Tex. Admin. Code § 17.4(2)( B) (2008) (Texas Dep’ t of Pub. Safety , AL R Reports). I t is clea r that the Depa

rtment’s rule require s the office r’s repor t to be sworn, but the Depa

rtment’s rules are not rele vant to our decision here

. First, the Depa rtment’s rules do not purport to g overn the admissibil ity of the repor t at a license- suspension hear ing; that duty is entrusted
to SOAH by statute. See Tex. Transp. Code Ann. § 524.033 (West 2007) (hea ring shall be held by SOAH). Second, even if we ref er to the Depa

rtment’s rules to provide insight into the Depa rtment’s interpre tation of the transpor tation code, we find littl e g uidance , as the Department’ s rules are not consistent with the code. I n the re fusal conte x t, the Depa rtment’s rules r equire the officer to send

a “s worn repor

t or probable cause aff

idavit” with other require d documents in the adminis t ra t i v e license- revocat i o n re port, see 37 Tex. Admin. Code § 17.4(1)( B) (2008), even though the
10transporta tion code re quires only that the arresting office r file a “wr itten report,” see Tex. Transp. Code Ann. § 724.032(a) (4) (West Supp. 2009). I n the failure context, whe re the code require s the office r t o send a “sworn report,” see id. § 524.011(b)( 4)(D) (West Supp. 2009), t he Department ’s rules require that the office r send a sworn repor t along with the administ ra t i v e license revoc ation repor t that must itself “be sworn to by the arr esting office r,” see 37 Tex. Admin. Code § 17.4(2)( B) (2008). These seeming ly contra dictory uses of the term “swor n re p ort” either mean that, to the Depa rtment, “sworn report” is a term of art simply naming the form that an arresting office r m ust complete and transmit—a theory advanc ed by the Depa rtment here

— o r, at least, that we must be

war y of using the Depa

rtment’s rules to infor

m our construc tion of the transporta tion code.
(v) The Report in the Present Case M ee t s t h e Requirem ents of a Self-Auth enticating Public Record Essential to my conclusion in this case is the fac t that the unsworn repor t was admissible as a public rec ord under the rele vant rules of evidenc e. See Tex. R. Evid. 803(8) (re port detailing matters observe d by the office r that he had a duty to repor t and containing fac tual finding s resulting from investiga tion admissible as public reco rd ), 902(1) (domestic public documents authentic when filed with seal of state ag ency ), 1005 (copie s of public documents admissible if they comply with authenticity

require ments of rule 902( 1)).

CONCLUSION Neither the applicable transporta tion code section nor the applicable SOAH rule prohibited admission of Trooper Flore s’s unsworn repor t at Caruana ’s license- suspension hear ing, and the repor

t was otherwise admissible as a public rec ord. Acc ording ly , I would hold that the AL J
11did not abuse his discretion by admitting the unsworn repor t. Be cause the repor

t was p ro p er ly in evidenc e, there was substantial evidenc e to support the AL J ’s decision; there fore , the district court

err ed by reve rsing it. I would reve rse the district c ourt’s judg ment and re nder judg ment aff irming the administrative dec ision.

__________________________________________ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Waldrop and He nson Filed: F ebrua

ry 12, 2010

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