Notice Requirement of Drivers License Suspension Hearing In Texas

After a party requests a hearing to review a license suspension imposed after failing an intoxilyzer test and is notified of the setting, the proceeding is conducted by an administrative law judge (ALJ). See Tex. Transp. Code Ann. 524.033. The Legislature has conferred authority on State Office of Administrative Hearings ("SOAH") to promulgate agency rules concerning administrative license suspension hearings. See id. 524.002(a), 724.003. Accordingly, SOAH has established agency rules pertaining to such hearings. See generally 1 Tex. Admin. Code ch. 159 (1999). These rules, unlike the Code provisions, expressly address the calculation of the notice requirement for license suspension hearings. Compare id. 159.9(d), with Tex. Transp. Code Ann. 524.032(a), 724.041(b). In particular, section 159.9 of the Texas Administrative Code ("TAC") provides that a hearing may be held "no sooner than ten days after the date the notice of hearing was sent to the defendant." 1 Tex. Admin. Code 159.9(d) (emphasis added). With respect to section 724.041(b) of the Texas Transportation Code, section 159.9 of Title 1 of TAC serves to "fill a gap . . . as to how the minimum notice of hearing requirement is calculated." Stanley, 982 S.W.2d at 38 (discussing the interaction of section 159.9(d) of Title 1 of TAC and section 724.041(b) of the Code). Given the identical language and purposes of sections 724.041(b) and 524.032(a), no rational basis exists to conclude that section 159.9(d) serves a function other than that of a "gap-filler" with respect to section 524.032(a) of the Transportation Code as well. We hold that the notice requirement established in section 524.032 of the Code is calculated from the date that notice is sent.