Jamie Ann Curry v. Texas Department of Public Safety , 472 S.W.3d 346 ( 2015 )

Opinion issued August 4, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00585-CV
———————————
JAMIE ANN CURRY, Appellant
V.
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee
On Appeal from the County Civil Court at Law No. 4
Harris County, Texas
Trial Court Case No. 1044653
OPINION
In her suit for judicial review, 1 appellant, Jamie Ann Curry, challenges the
judgment of the trial court affirming an administrative law judge’s (“ALJ”) order
granting the petition of the appellee, Texas Department of Public Safety (“DPS”),
1
See TEX. TRANSP. CODE ANN. § 524.031 (Vernon 2007).
to suspend her driver’s license for 180 days. 2 Curry argues that (1) the ALJ abused
its discretion by entertaining and granting an oral motion to quash the witness
subpoena for the arresting officer on the day of the hearing; (2) the ALJ abused its
discretion by failing to dismiss the case against her when the arresting officer
failed to appear at the hearing; (3) the trial court abused its discretion by failing to
reverse the suspension of Curry’s license and remand the case to the ALJ for
further proceedings to determine whether the arresting officer had been properly
served in advance of the administrative hearing; and (4) the ALJ abused its
discretion in erroneously quashing the subpoena issued to the arresting officer
because the ALJ “was fully informed of the lawful means of service and [it]
recognized that the return of service was compliant with State Office of
Administrative Hearings (“SOAH”) rules.”
We affirm.
Background
Curry was involved in a one-vehicle accident in which she struck a curb,
causing two flat tires, and collided with a light pole. Harris County Deputy Sheriff
J. Mayorga responded to the accident and found Curry buckled into the driver’s
seat and noted that the only other passenger was a small child. Curry was unable
to perform field sobriety tests and refused to provide a blood or breath specimen.
2
See id. § 724.035 (Vernon 2008); id. § 724.042 (Vernon 2008).
2
Deputy Mayorga arrested Curry for driving while intoxicated with a child
passenger and obtained a search warrant for a blood specimen. Testing of her
blood specimen indicated that she had a blood alcohol concentration of
0.29mg/100mL.
DPS later filed a petition to suspend Curry’s driver’s license based on her
refusal to provide a breath or blood specimen, and she filed a request for a hearing
to be held before an ALJ. Prior to the hearing, Curry subpoenaed Deputy Mayorga
to testify at the hearing. The return of service indicated that the process server
“executed this subpoena by delivering a copy to Patrol Group, Sheriff’s Office in
person” at 1200 Baker Street, Houston, Texas. Service was accepted by an
employee of the Patrol Group.
At the hearing before the ALJ, DPS offered Deputy Mayorga’s sworn report,
the offense report, copies of the statutory warning forms provided to Curry,
Mayorga’s affidavit provided in support of the search warrant for obtaining a blood
specimen, and the results of her blood alcohol level test. Curry objected to the
admission of this evidence on the basis that Deputy Mayorga “was properly
served” but did not appear at the hearing. DPS then objected to the subpoena of
Deputy Mayorga and moved to quash based on improper service, arguing that the
return of service was not signed by Mayorga, and, thus, Curry failed to show that
the subpoena was properly served in person to the witness. Curry asked to contact
3
her process server to discuss the service of the subpoena, which the ALJ allowed.
She then argued that the subpoena was served in compliance with the Harris
County Sheriff’s Office’s protocol for receiving these types of subpoenas and that
the return of service was made using the form required by SOAH’s procedural
rules. In response, DPS argued that the service of the subpoena to Deputy
Mayorga was improper because the return of service did not indicate that service
was accomplished by alternative means—it stated that service was done “in
person,” but Deputy Mayorga was not the person who signed the acknowledgment
of receipt of the subpoena.
The ALJ found that “[t]here was insufficient evidence that the subpoena was
served pursuant to SOAH Rule 159.103(f)(1)”3 and, accordingly, gave “full
weight” to Deputy Mayorga’s report. It further found the evidence sufficient to
uphold the suspension of Curry’s driver’s license.
Curry sought judicial review in the trial court. The clerk’s record for this
case contains a complete copy of the administrative record. However, Curry failed
to file a reporter’s record indicating the nature of the evidence presented to or
3
See 1 TEX. ADMIN. CODE § 159.103(f)(1) (Vernon 2013) (“The party who issues
or is granted a subpoena shall be responsible for having the subpoena served in
accordance with Texas Rule of Civil Procedure 176.5, or by accepted alternative
methods established by a peace officer’s law enforcement agency.”); see also TEX.
R. CIV. P. 176.5(b) (“Proof of service must be made by filing either: (1) the
witness’s signed written memorandum attached to the subpoena showing that the
witness accepted the subpoena; or (2) a statement by the person who made the
service stating the date, time, and manner of service, and the name of the person
served.”).
4
considered by the trial court. The trial court affirmed the suspension of Curry’s
driver’s license.
Standard and Scope of Review
A person whose driver’s license is suspended following an administrative
hearing is entitled to judicial review of the decision. TEX. TRANSP. CODE ANN.
§ 524.041(a) (Vernon 2013); Patel v. Tex. Dep’t of Pub. Safety, 409 S.W.3d 765,
767 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Judicial review of such
decisions is governed by the substantial evidence rule. Tex. Dep’t of Pub. Safety v.
Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam); Patel, 409 S.W.3d at 767–
68. Under this standard, reviewing courts must determine whether the agency’s
findings were supported by substantial evidence or whether the order was invalid
for some other reason. See TEX. GOV’T CODE ANN. § 2001.174 (Vernon 2008)
(setting out specific grounds for reversal of administrative order); Patel, 409
S.W.3d at 768. Whether substantial evidence supports an administrative order is a
question of law. Alford, 209 S.W.3d at 103; Patel, 409 S.W.3d at 768. “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.’” Patel, 409 S.W.3d at 768 (quoting Mireles v. Tex. Dep’t of Pub.
Safety, 9 S.W.3d 128, 131 (Tex. 1999)).
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We must presume that the agency’s decision is supported by substantial
evidence, and we must affirm the ALJ’s decision if more than a scintilla of
evidence supports it. Id.; see also Mireles, 9 S.W.3d at 131 (reviewing court may
affirm “even if the evidence preponderates against” administrative order so long as
there is more than scintilla of evidence to support order). “We may not substitute
our judgment for the ALJ’s judgment ‘on the weight of the evidence on questions
committed to agency discretion.’” Patel, 409 S.W.3d at 768 (quoting TEX. GOV’T
CODE ANN. § 2001.174).
Curry’s Failure to Provide a Reporter’s Record
In its appellate brief, DPS argues that we must affirm the trial court’s ruling,
which affirmed the administrative decision, because Curry failed to arrange for the
filing of a reporter’s record and there is no evidence that Curry offered the
administrative record into evidence at the hearing before the trial court.
A. Necessity of Reporter’s Record
Generally, the appellant bears the burden to present a sufficient record to
show error requiring reversal. Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing Christiansen v. Prezelski,
782 S.W.2d 842, 843 (Tex. 1990)). The appellate record consists of the clerk’s
record and, if necessary to the appeal, the reporter’s record. TEX. R. APP. P. 34.1.
When there is no reporter’s record, we indulge every presumption in favor of the
6
trial court’s findings. Bryant v. United Shortline Inc. Assurance Servs., N.A., 972
S.W.2d 26, 31 (Tex. 1998); see also Willms v. Ams. Tire Co., 190 S.W.3d 796, 803
(Tex. App.—Dallas 2006, pet. denied) (“[W]hen an appellant fails to bring a
reporter’s record, an appellate court must presume the evidence presented was
sufficient to support the trial court’s order.”). Furthermore, without a complete
record brought forward by the appellant, the court will conclude that the appellant
has waived the points of error dependent on the state of the evidence. Favaloro v.
Comm’n for Lawyer Discipline, 994 S.W.2d 815, 820 (Tex. App.—Dallas 1999,
pet. struck).
Despite receiving notice from this court, Curry—who is not entitled to
proceed without payment of costs—failed to pay for the reporter’s record and it
was never filed. See TEX. R. APP. P. 37.3(c). In her third issue, Curry argues that
the trial court abused its discretion by failing to reverse the suspension of Curry’s
license and remand the case to the ALJ for further proceedings to determine
whether the arresting officer had been properly served in advance of the
administrative hearing. However, Curry has provided no record demonstrating that
she actually presented this argument to the trial court, nor has she presented a
record demonstrating that she identified for the trial court the evidence she
believed should have been considered. See Nicholson, 226 S.W.3d at 583 (holding
that appellant bears burden to present sufficient record to show error requiring
7
reversal). Accordingly, we presume that Curry waived this point of error, and we
indulge every presumption in favor of the trial court’s findings. See Bryant, 972
S.W.2d at 31; Favaloro, 994 S.W.2d at 820.
We overrule Curry’s third issue.
However, even in light of Curry’s failure to file the reporter’s record, we
may consider and decide those issues or points that do not require a reporter’s
record for a decision. See TEX. R. APP. P. 37.3(c). Thus, we now turn to DPS’s
argument that we may not consider the remainder of Curry’s issues challenging the
ruling of ALJ because she has not filed a record establishing that she offered the
administrative record into evidence in the trial court proceeding.
B. Admission of Administrative Record
The Administrative Procedure Act (“APA”), which governs here, provides
that a party seeking judicial review of an agency’s decision “shall offer, and the
reviewing court shall admit, the state agency record into evidence as an exhibit.”
TEX. GOV’T CODE ANN. § 2001.175(d) (Vernon 2008). This provision is
mandatory. See Nueces Canyon Consol. Indep. Sch. Dist. v. Cent. Educ. Agency,
917 S.W.2d 773, 776 (Tex. 1996) (“[A]n administrative record must be offered
into evidence at the trial court in an appeal for judicial review brought under the
[APA].”); Tex. Dep’t of Pub. Safety v. Monroe, 983 S.W.2d 52, 55 (Tex. App.—
8
Houston [14th Dist.] 1998, no pet.) (citing Tex. Dep’t of Pub. Safety v. Lavender,
935 S.W.2d 925, 929 (Tex. App.—Waco 1996, writ denied)).
The APA further provides that “[a] court shall conduct the review sitting
without a jury and is confined to the agency record, except that the court may
receive evidence of procedural irregularities alleged to have occurred before the
agency that are not reflected in the record.” TEX. GOV’T CODE ANN.
§ 2001.175(e); Nueces Canyon, 917 S.W.2d at 776. Regarding appeals from the
trial court’s judgment, the APA provides that they are taken “in the manner
provided for civil actions generally”; however, “the appellate courts habitually
review the agency order itself, not the trial court’s judgment.” TEX. GOV’T CODE
ANN. § 2001.901 (Vernon 2008); Lavender, 935 S.W.2d at 929 n.13; see also, e.g.,
Patel, 409 S.W.3d at 767–68 (analyzing sufficiency of evidence supporting ALJ’s
determination).
An appellant may bring an administrative record in an appeal governed by
the APA to an appellate court as part of either the reporter’s record or clerk’s
record “so long as a court reporter’s certificate or other evidence demonstrates the
trial court admitted the record.” Nueces Canyon, 917 S.W.2d at 776; Monroe, 983
S.W.2d at 55. “Other evidence” demonstrating that the trial court admitted the
record includes a reporter’s record that indicated that the administrative record was
effectively admitted even if it was not actually admitted or a recitation in the trial
9
court’s judgment indicating that it reviewed the administrative record. See
Monroe, 983 S.W.2d at 55; Tex. Dep’t of Pub. Safety v. Stacy, 954 S.W.2d 80, 83
(Tex. App.—San Antonio 1997, no writ); Tex. Dep’t of Pub. Safety v. Latimer, 939
S.W.2d 240, 243–44 (Tex. App.—Austin 1997, no writ).
Texas courts have also held that in some circumstances a reporter’s record
from the trial court is unnecessary, such as when there was no indication that the
trial court received or considered additional evidence independent of the
information contained in the agency record. Tex. Dep’t of Pub. Safety v. Raffaelli,
905 S.W.2d 773, 776 (Tex. App.—Texarkana 1995, no writ). The court in
Raffaelli observed that the “trial court’s review is confined to the agency record
which, by law, the party seeking review must submit, and the trial court must
admit, into evidence.” Id. (citing TEX. GOV’T CODE ANN. § 2001.175(d)–(e)); see
also TEX. GOV’T CODE ANN. § 2001.175(b) (requiring agency to send reviewing
court entire record of proceeding under review, to be filed with clerk of court).
DPS relies on Lavender to contend that we must affirm the trial court’s
ruling here solely based on Curry’s failure to establish that the trial court admitted
the administrative record into evidence. In Lavender, DPS argued that the trial
court committed an error of law by reversing the administrative order without the
record from that hearing being admitted into evidence. 935 S.W.2d at 929. The
court noted that an agency order is presumed to be legal and valid and that “[t]he
10
burden is on the contestant to demonstrate that the order is erroneous.” Id. It held,
“Without the record from the agency hearing, we are unable to find that the
administrative order is not supported by substantial evidence or that it is infected
with some other error of law.” Id. The Lavender court concluded that “we must
have the record before us for examination” and that “[a]bsent evidence that the
court admitted the record into evidence, we have nothing to review and the
presumption of validity prevails.” Id. at 930. The court thus reversed the trial
court’s judgment, which reversed the agency’s suspension of Lavender’s license,
on the basis that “Lavender failed to place the agency record in evidence before the
trial court,” and it rendered judgment upholding the administrative suspension of
Lavender’s driver’s license. Id.
Here, by contrast with Lavender, we do have the agency record before us as
part of the clerk’s record, as it was transmitted to the trial court clerk by the agency
pursuant to the provisions of the APA. See TEX. GOV’T CODE ANN. § 2001.175(b).
Furthermore, the trial court here affirmed the ALJ’s suspension of Curry’s license,
unlike the trial court in Lavender, which reversed the ALJ’s suspension. Thus, the
reporter’s record was not necessary to demonstrate the sufficiency of evidence to
overcome the presumption that the agency’s order was valid. See Lavender, 935
S.W.2d at 929.
11
We conclude that this case is more similar to Raffaelli. Although the record
on appeal does not contain any statement or certification establishing that the
administrative record was admitted into evidence during the hearing before the trial
court, the provisions of the APA limited the scope of the trial court’s review to the
agency record. See TEX. GOV’T CODE ANN. § 2001.175(e). By law, the party
seeking review must submit this record to the trial court, and the trial court must
admit it into evidence. See id. § 2001.175(d); Raffaelli, 905 S.W.2d at 776. There
is no indication that the trial court received or considered additional evidence
independent of the information contained in the agency record, and, without
evidence to the contrary, we must presume that the trial court fulfilled its statutory
duties to admit and consider the administrative record in ruling on Curry’s petition
for judicial review. See S. Ins. Co. v. Brewster, 249 S.W.3d 6, 13 (Tex. App.—
Houston [1st Dist.] 2007, pet. denied) (“Well-settled law compels that we presume
that proceedings in the trial court, as well as its judgment, are regular and
correct.”); Raffaelli, 905 S.W.2d at 776 (“We presume the trial court proceedings
to be regular and in compliance with the law. Thus, we presume that the trial court
followed the law and admitted the agency record into evidence.”) (citations
omitted). As in Raffaelli, there is “no logical conclusion other than this: the
agency record—including a complete transcription of the administrative
12
proceedings against [Curry]—is before us as part of the [clerk’s record] and can be
examined as part of the appellate review process.” See 905 S.W.2d at 776.
Furthermore, we observe that the scope of our review requires us to examine
the decisions of the ALJ on Curry’s remaining issues, not the judgment of the trial
court. Lavender, 935 S.W.2d at 929 n.13; see, e.g., Patel, 409 S.W.3d at 767–68
(analyzing sufficiency of evidence supporting ALJ’s determination). The complete
administrative record is before us as part of the clerk’s record. We also observe
that Curry referenced the administrative record in her filings in the trial court, and
DPS did not object to these references even though it did object to other aspects of
Curry’s case, such as her attempt to take a deposition.
The presumptions of law and evidence before us indicate that the
administrative record was at least constructively considered by the trial court, in
compliance with the requirements of Nueces Canyon that an appellant may bring
an administrative record in an appeal governed by the APA as part of either the
reporter’s record or clerk’s record so long as some evidence demonstrates that the
trial court admitted the record. 917 S.W.2d at 776; see also Tex. Health Enters.,
Inc. v. Tex. Dep’t of Human Servs., 949 S.W.2d 313, 314 (Tex. 1997) (discussing
requirements of Nueces Canyon and holding that where administrative record was
filed with district court clerk but not formally offered into evidence and statement
of facts and trial court order “leave no doubt . . . that both parties relied on the
13
administrative record in their arguments and that the court based its decision on the
administrative record,” appeals court should treat administrative record as if it had
been admitted); Monroe, 983 S.W.2d at 56 (“Because there is some evidence the
county court at law considered the record of the administrative hearing, we find the
parties treated the record as admitted and this court will consider such record on
appeal.”); Tex. Dep’t of Pub. Safety v. Guajardo, 970 S.W.2d 602, 605 (Tex.
App.—Houston [14th Dist.] 1998, no pet.) (applying Nueces Canyon and Texas
Health Enterprises in treating administrative record as if it had been admitted into
evidence because administrative record had been filed with county court clerk even
if not formally admitted into evidence, “both parties’ contentions were based on
the materials in the administrative record, and both sides and the court proceeded
as if the record was in evidence”); Stacy, 954 S.W.2d at 83 (“Under these
circumstances, when there is no confusion about the record before the trial court
[despite the failure to admit the administrative record into evidence in the trial
court], we may review the administrative record that appears in our transcript.”).
And we are mindful of the admonition that we “cannot avoid [our] obligation to
‘address every issue raised and necessary to final disposition of the appeal’ by
elevating form over substance.” Nueces Canyon, 917 S.W.2d at 775–76 (quoting
Office of Pub. Util. Counsel v. Pub. Util. Comm’n, 878 S.W.2d 598, 599 (Tex.
1994) (per curiam)).
14
We conclude that we may consider the merits of Curry’s first, second, and
fourth issues in light of the administrative record before us.
ALJ’s Ruling Quashing Subpoena of Deputy Mayorga
In her first, second, and fourth issues, Curry argues that the ALJ erred in
quashing her subpoena of Deputy Mayorga to appear at the agency hearing,
effectively challenging the ALJ’s fact finding that “[t]here was insufficient
evidence that the subpoena was served pursuant to SOAH Rule 159.103(f)(1)” and
its subsequent decision to give “full weight” to the deputy’s report. Specifically,
she argues that DPS’s objection to the subpoena was untimely and that the oral
motion to quash made at the hearing was inappropriate; that the ALJ erred in
finding that Deputy Mayorga was not properly served and in granting the motion to
quash; and that the ALJ erred by giving full weight to Deputy Mayorga’s report
because he failed to comply with the subpoena.
A. Timeliness and Form of Objection to Subpoena and Motion to Quash
In her first issue, Curry complains that the ALJ erred in considering DPS’s
objection to the subpoena because it was untimely and was made orally on the
record at the hearing. However, Curry did not object on this basis before the ALJ.
She asked that she be able to contact her process server to seek information about
the details of the service, which the ALJ allowed her to do. She then argued that
15
the service was done in accordance with HCSO’s policies and was therefore
proper.
A timely, specific objection is required to preserve a complaint for review on
appeal, and any complaint made on appeal must comport with the objection made
in the trial court. See TEX. R. APP. P. 33.1(a); Religious of Sacred Heart of Tex. v.
City of Houston, 836 S.W.2d 606, 614 (Tex. 1992); J.C. Penney Life Ins. Co. v.
Heinrich, 32 S.W.3d 280, 290 (Tex. App.—San Antonio 2000, pet. denied).
Because Curry failed to complain about the timeliness or form of the motion to
quash before the ALJ, she waived these complaints for consideration on appeal.
We overrule Curry’s first issue.
B. The ALJ’s Ruling Quashing the Subpoena
In her fourth issue, Curry argues that the ALJ abused its discretion in
quashing the subpoena issued to Deputy Mayorga because the ALJ “was fully
informed of the lawful means of service and [it] recognized that the return of
service was compliant with [SOAH] rules.” In her second issue, she argues that
she properly served Deputy Mayorga and that the ALJ erred in failing to dismiss
her case when he did not appear at the hearing.
Texas Administrative Code (“TAC”) chapter 159 governs hearings on
administrative license suspensions. 1 TEX. ADMIN. CODE § 159.1(a) (West 2015);
Hodge v. Tex. Dep’t of Pub. Safety, No. 01-12-00259-CV, 2013 WL 4680378, at
16
*1 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.). TAC
section 159.103 provides the rules governing subpoenas at an administrative
license suspension hearing. Section 159.103(f)(1) provides that “[t]he party who
issues or is granted a subpoena shall be responsible for having the subpoena served
in accordance with Texas Rule of Civil Procedure 176.5, or by accepted alternative
methods established by a peace officer’s law enforcement agency.” 1 TEX. ADMIN.
CODE § 159.103(f)(1) (West 2015). Rule of Civil Procedure 176.5(a) provides
generally that “[a] subpoena must be served by delivering a copy to the witness
and tendering to that person any fees required by law.” TEX. R. CIV. P. 176.5(a).
Rule 176.5(b) provides, “Proof of service must be made by filing either: (1) the
witness’s signed written memorandum attached to the subpoena showing that the
witness accepted the subpoena; or (2) a statement by the person who made the
service stating the date, time, and manner of service, and the name of the person
served.” TEX. R. CIV. P. 176.5(b).
Here, the ALJ found that the evidence was insufficient to prove that Deputy
Mayorga was properly served. We must presume that the ALJ’s finding is
supported by substantial evidence and affirm the ALJ’s decision if more than a
scintilla of evidence supports it. See Patel, 409 S.W.3d at 768; see also Mireles, 9
S.W.3d at 131 (reviewing court may affirm “even if the evidence preponderates
17
against” administrative order so long as there is more than scintilla of evidence to
support order).
Curry’s issue involves not just the weight of the evidence regarding service
of the subpoena on Deputy Mayorga, but also the ALJ’s decision to quash the
subpoena. A reviewing court “shall reverse or remand the case for further
proceedings if substantial rights of the appellant have been prejudiced because the
administrative findings, inferences, conclusions, or decisions are . . . arbitrary or
capricious or characterized by abuse of discretion or clearly unwarranted exercises
of discretion.” TEX. GOV’T CODE ANN. § 2001.174(2)(F); Hodge, 2013 WL
4680378, at *2; see also In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003) (orig.
proceeding) (stating that trial court’s determination of motion to quash subpoena is
reviewed for abuse of discretion). An abuse of discretion occurs when the ALJ
acts arbitrarily or unreasonably, without reference to any guiding rules or
principles. Hodge, 2013 WL 4680378, at *2 (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)).
Here, the return of service stated that service of the subpoena was made in
person. However, the “acceptance of service” was executed by an employee of the
HCSO’s patrol group—not by Deputy Mayorga. Thus, the return of service here
did not comply with Rule 176.5(b). It did not contain a signed written
memorandum of the witness showing that he accepted the subpoena, nor did it
18
contain a statement by the person who made the service stating that service was
made in an alternative manner. See TEX. R. CIV. P. 176.5(b).
Curry argues that she established at the hearing that Deputy Mayorga was
properly served because she followed the procedure required by the Harris County
Sheriff’s Office for serving deputies with subpoenas to appear at administrative
hearings and because she used the return of service form required by the SOAH
rules. However, the ALJ expressed a concern on the record at the hearing that she
could not be sure that Deputy Mayorga was actually employed at the patrol group
where service was made, and Curry offered no evidence on this issue. The ALJ
also recognized that Curry used the form required by the SOAH rules, but
observed that Curry’s process server could have made a notation on that form that
service was accomplished by an alternative method. Curry failed to provide any
argument or evidence indicating why that was not necessary.
We conclude that at least a scintilla of evidence supports the ALJ’s finding
that the evidence was insufficient to prove that Deputy Mayorga was properly
served and that the ALJ did not abuse its discretion in quashing the subpoena on
this basis. See TEX. GOV’T CODE ANN. § 2001.174(2)(F); Hodge, 2013 WL
4680378, at *2. Because the ALJ did not abuse its discretion in quashing the
subpoena, we conclude that it likewise did not err in giving Deputy Mayorga’s
report full weight. See 1 TEX. ADMIN. CODE § 159.211(c)(2) (West 2015) (“If the
19
defendant timely subpoenas an officer and the officer fails to appear without good
cause, information obtained from that officer shall not be admissible.”) (emphasis
added); Tex. Dep’t of Pub. Safety v. Caruana, 363 S.W.3d 558, 564–65 (Tex.
2012) (holding that ALJ acted within its discretion in admitting unsworn report of
officer who did not appear at hearing).
We overrule Curry’s second and fourth issues.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Massengale.
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