Opinion
NO. 03-17-00323-CV
03-21-2018
Texas Department of Public Safety, Appellant v. Taylor Allen Harrell, Appellee
FROM COUNTY COURT AT LAW NO. 1 OF COMAL COUNTY
NO. 2013CVA0069 , HONORABLE RANDAL C. GRAY, JUDGE PRESIDING MEMORANDUM OPINION
This is an appeal from the judgment of the county court at law of Comal County reversing the decision of an administrative-law judge in a driver-license suspension case. The appellant is the Texas Department of Public Safety (the Department) and appellee is Taylor Allen Harrell. We will reverse the judgment.
In September 2016, Officer Peter Carollo of the New Braunfels Police Department (the Officer) conducted a traffic stop that eventually resulted in Harrell's arrest for driving while intoxicated. Harrell's drivers license was suspended when he refused the Officer's request for a blood specimen. Harrell contested the license suspension in a hearing before the State Office of Administrative Hearings (SOAH). In September 2016, Harrell served a request for production upon the Department requesting, among other things, the Officer's report and the names of witnesses the Department intended to call.
The Department received the request for production, but in a mix-up, it was not delivered to the attorney handling the Harrell file. Sometime before the November 2016 hearing date, the Department's attorney attempted to send the Officer's report to Harrell's attorney, but this was also misdirected. Thus Harrell received neither the Officer's report nor the names of the prospective witnesses prior to the hearing.
At the hearing, the Department's counsel appeared with the Officer and announced ready. When the Officer's report was offered into evidence Harrell objected upon the ground that it had not been produced before the hearing per his request for production. Harrell also objected to any testimony from the Officer since the Department had not identified him as a witness. The administrative-law judge did not grant Harrell's objection but, instead, offered Harrell time to review the Officer's report. At this juncture, Harrell received the report and moved for a continuance, which was granted.
The administrative hearing was resumed in February 2017. As before, Harrell renewed his objection to the Officer's testimony. The objection was overruled and the Officer testified as to the facts surrounding the traffic stop and arrest. After hearing, the administrative-law judge rendered decision concluding that the Department was authorized to suspend Harrell's driving privileges for 180 days.
Harrell filed an appeal of the administrative decision to the county court at law of Comal County. After argument of counsel, that court rendered judgment reversing the decision.
Because the court did not specify the basis for its judgment, the Department has the burden on appeal to address each of the possible grounds for the court's reversal of the administrative decision. The Department argues, first, that the administrative-law judge did not err in admitting into evidence the Officer's report. We agree.
SOAH rules in effect at the time provided in part:
Upon a showing of harm by the defendant, and upon a showing of proper request for discovery, no document in the [Administrative License Revocation] Division's actual possession will be admissible unless it was provided to the defendant within five business days of the receipt of the request for production.1 Tex. Admin. Code § 159.151(1) (2016) (SOAH, Prehearing Discovery), amended 41 Tex. Reg. 9462 (2016) (proposed June 17, 2016) (emphasis added).
This Court observes, initially, that the Department's failure to provide the Officer's report was not the result of bad faith or callous disregard for the responsibilities of discovery under the rules. See TransAmerica Nat. Gas v. Powell, 811 S.W.2d 913, 918 (Tex. 1991). Rather, the failure to produce came about by intra-agency bungling. More to the point, Harrell failed to show harm resulting from the agency's failure to produce the Officer's report.
Harrell knew that the Department had not responded to his request for production within five days of its receipt as required by SOAH Rule 159.151(1). His apparent strategy was to wait and object to the admission of the report thereby attempting to adjudicate the merits of the case by discovery sanctions. We are of the opinion that failure of Harrell's trial strategy is not "harm" as contemplated by SOAH Rule 159.151(1). After his trial strategy failed, Harrell moved for a continuance, which was granted, thereby obviating any possible surprise or harm.
The Department argues next that upon resumption of the hearing in February 2017, the administrative-law judge did not err in allowing the Officer to testify. As before, Harrell objected because the Department had not timely filed a discovery response identifying him.
The parties have not shown the Court a rule for administrative license-suspension hearings that addresses discovery of names of persons expected to be called to testify at trial. In the absence of such provision, the Texas Transportation Code provides that the Administrative Procedure Act applies. See Tex. Transp. Code § 524.002. APA section 2001.092(a) allows discovery of the identity of a potential witness from papers in a party's possession. See Tex. Gov't Code § 2001.092(a). That section, however, does not speak to a party's failure to timely respond to production requests. Accordingly, we look to SOAH Rule 155.3(g), which permits, under such circumstances, consideration of the Texas Rules of Civil Procedure. See 1 Tex. Admin. Code § 155.3(g) (2016) (SOAH, Application and Construction of this Chapter); Hodge v. Texas Dep't of Pub. Safety, No. 01-12-00259-CV, 2013 WL 4680378, at *2 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.). Texas Rule of Civil Procedure 193.6 provides that a party may not offer the testimony of a witness who was not timely identified unless the failure to identify "will not unfairly surprise or unfairly prejudice the other parties." Tex. R. Civ. P. 193.6(a)(2).
The administrative-law judge properly overruled Harrell's objection. Having been identified as a possible witness at the November hearing, there was no surprise or undue prejudice to Harrell when the Officer appeared at the second hearing. Moreover, Harrell was in possession of the Officer's report from November 2016 to February 2017. The report identified the Officer as a member of the New Braunfels Police Department.
In its final issue, the Department argues that the administrative-law judge did not err in concluding that there was reasonable suspicion for the Officer to stop Harrell. Harrell did not brief this issue. Harrell's license was suspended under Chapter 724 of the Transportation Code. That chapter requires the Department to show four elements to sustain the license suspension: (1) reasonable suspicion or probable cause existed to stop or arrest the person; (2) probable cause existed to believe that the person was operating a vehicle in a public place while intoxicated; (3) the person was placed under arrest by the officer and was requested to submit to the taking of a specimen; and (4) the person refused to submit to the taking of the specimen. See Tex. Transp. Code § 724.042.
The only controverted element here was whether there was reasonable suspicion for Harrell's stop. The Officer testified that Harrell appeared to be driving "much faster than the speed limit." An officer's estimation that a driver is speeding is sufficient to justify a stop for that offense. Dillard v. State, 550 S.W.2d 45, 53 (Tex. Crim. App. 1977). Here, the Officer's estimation that Harrell was driving above the speed limit provided the officer with reasonable suspicion for the stop.
The judgment is reversed and here rendered affirming the decision of the administrative-law judge.
/s/_________
Bob E. Shannon, Justice Before Justices Puryear, Field, and Shannon Reversed and Rendered Filed: March 21, 2018 Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code § 74.003(b).