Opinion
No. 6230.
November 10, 1971.
Appeal from the County Court, Midland County, Barbara G. Culver, J.
Kerr, Fitz-Gerald Kerr, Wm. Monroe Kerr, James Fitz-Gerald III, Midland, for appellant.
Willie B. DuBose, County Atty., John A. Woodside, Asst. County Atty., Midland, for appellee.
OPINION
This is a driver's license revocation case, tried de novo, without a jury, in the County Court of Midland County under the provisions of Section 22(b) and 22(c) of Article 6687b, Vernon's Ann.Tex.Civ.Statutes, and wherein the Appellant's Texas Driver's License number 5481398 was revoked. The Department of Public Safety alleged that the Appellant was subject to immediate and uncontrollable sleeping spells, wherein he was unable to drive safely. The Appellant's primary point is to the effect that no evidence was offered in the trial Court to sustain these pleadings. The attorney for the Department candidly admits that there was no evidence to support the Court's finding of the Appellant's inability to drive an automobile, and a search of the record sustains that position. It is incumbent upon the Department to plead in writing its cause of action and to then carry its burden of proof upon the pleadings made. Knight v. Texas Department of Public Safety, 361 S.W.2d 620 (Tex.Civ.App. Amarillo 1962, no writ hist.); Department of Public Safety v. Guleke, 366 S.W.2d 662 (Tex.Civ.App. Amarillo 1963, no writ hist.). Accordingly, the judgment of the trial Court is reversed and judgment here rendered that revocation of the Appellant's driver's license be denied.