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Texas Department of Public Safety v. Guerra4/30/1998
Guerra immediately responded by informing the Department of the mistake and noting that the correct arrest date (December 24, 1996) indicated that his December 31st request was timely. Recognizing the mistake, the Department granted Guerra a hearing.
On February 24, 1997, 62 days after the Department had served Guerra his notice of suspension, Guerra's hearing was held before the State Office of Administrative Hearings ("SOAH"). See id. § 524.033 (hearing under Code chapter 524 shall be heard by an administrative law judge employed by SOAH). At this hearing, Guerra contended that the Department was precluded from suspending his license because it failed to hold a hearing within 40 days after he received his notice of suspension. To support his contention, Guerra directed the ALJ to the interplay between sections 524.021 and 524.032(a) of the Code. Section 524.021 provides:
Suspension Effective Date
driver's license suspension under this chapter takes effect on the 40th day after the date the person receives a notice of suspension.
Code § 524.021 (emphasis added). Section 524.032(a) provides:
Hearing Date; Rescheduling
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.
Code § 524.032(a) (emphasis added).
Guerra argued before the ALJ, as he does here, that when construed together, the last sentence of section 524.032(a)--"hearing shall be held before the effective date of the suspension"--requires that the licensee's hearing be held before the "40th day after the date the person receives a notice of suspension." See Code §§ 524.021, .032(a). In other words, Guerra's contention to the ALJ was that the "effective date of suspension" as used in section 524.032(a) is defined in section 524.021 as the 40th day after notice of suspension. Therefore, Guerra contended that pursuant to section 524.032(a), the Department's failure to hold a hearing within 40 days of Guerra's notice of suspension precluded the Department from suspending his license.
The ALJ rejected Guerra's contention and rendered an administrative order sustaining the Department's petition to suspend Guerra's license. That order became final and appealable when the ALJ signed it on February 24, 1997. See Code § 524.035(e) (ALJ decision final when issued and signed).
Guerra sought judicial review of the ALJ's order in Travis County Court at Law No. 1. See Code § 524.041. At trial, Guerra reiterated his argument that the proper construction of the Code mandated a 40-day maximum time frame for the Department to hold a hearing. The trial court agreed with Guerra's construction of sections 524.021 and 524.032(a), finding that, when requested, a hearing must be held within 40 days of the notice of suspension or the Department is precluded from suspending the license. Therefore, because the SOAH hearing was held 62 days after notice of suspension, the trial court entered judgment prohibiting the Department from suspending Guerra's license.
On appeal, the Department challenges the trial court's construction of sections 524.021 and 524.032(a). Specifically, the Department argues in a single point of error that although sections 524.021 and 524.032(a) require a hearing within 40 days of the notice of suspension, such a requirement is directory and not mandatory.
Discussion
Although section 524.032(a) does not specifically state that a hearing be held wi
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