Texas Driver License Suspension Administrative Hearing
Following a suspension of a driver's license, the driver is entitled to an administrative hearing as well as judicial review of the decision. See id. 524.031, .041.
Proceedings under chapter 524 are governed by the Administrative Procedure Act ("APA") as long as no conflict arises. See id. 524.002(b).
If a conflict does arise, the provision within chapter 524 takes priority over the APA provision. See id.
Under the APA, a court may reverse an agency determination only if the substantive rights of the appellant have been prejudiced because the administrative findings are in violation of a constitutional or statutory provision, are in excess of the agency's statutory authority, are made through unlawful procedure, are affected by other error of law, are not reasonably supported by substantial evidence, or are arbitrary or capricious. See Tex. Gov't Code Ann. 2001.174 (West 2000).
These grounds for reversal present questions of law which we review de novo. See Texas Dep't of Pub. Safety v. Stanley, 982 S.W.2d 36, 37 (Tex. App.--Houston [1st Dist.] 1998, no pet.).
While no case has directly addressed the notice requirement established in section 524.032(a) of the Code, at least one court has considered the application of a notice requirement with identical language, namely, section 724.041(b) of the Code. See Stanley, 982 S.W.2d at 36 (considering whether the Department's notice satisfied the requirement established in section 724.041(b)).
Section 724.041 of the Code provides the right to a hearing for a person whose license is suspended by the Department following a refusal to submit to an intoxilyzer breath test; section 524.032(a) establishes the right to a hearing for a person whose license is suspended by the Department following a failure of an intoxilyzer breath test. Compare Tex. Transp. Code Ann. 724.041(b) (West 1999), with id. 524.032(a).
The common language of these two Code provisions mandates that such hearings "shall be held not earlier than the 11th day after the date" of notice. Compare Tex. Transp. Code Ann. 524.032(a) ("A hearing requested under this subchapter shall be held not earlier than the 11th day after the date on which the person requesting the hearing is notified of the hearing unless the parties agree to waive this requirement.
The hearing shall be held before the effective date of the suspension."), with id. 724.041(b) ("A hearing shall be held not earlier than the 11th day after the date the person is notified, unless the parties agree to waive this requirement, but before the effective date of the notice of suspension or denial.").
Both sections are silent with respect to the date from which the eleventh day is calculated. See id. 524.032(a), 724.041(b); see also Stanley, 982 S.W.2d at 38.