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Texas Department of Public Safety v. Guerra4/30/1998
ment is subject to another agency's timetable. It is plausible that on occasion there could be so many cases waiting to be heard that it would be impracticable for SOAH to hear all of them within the 40 day time frame prescribed by section 524.032(a). If such a scheduling problem were to arise, it would be unreasonable to punish the Department for acts that are not within its control.
Guerra's rejoinder to this argument is primarily based on two cases, Texas Department of Public Safety v. Meredith, 753 S.W.2d 191 (Tex. App.-Dallas 1988, no writ), and Balios v. Texas Department of Public Safety, 733 S.W.2d 308 (Tex. App.-Amarillo 1987, writ ref'd). These cases, however, are readily distinguishable from the instant cause.
In both Meredith and Balios, the mandatory statute required the Department to request a hearing within ten days of the licensee's demand for a hearing. See Meredith, 753 S.W.2d at 193; Balios, 733 S.W.2d at 310. In the present case, the statute in question not only requires the hearing be set, but actually held. Moreover, in Merideth and Balios the act to be performed (i.e., requesting a hearing) was simply ministerial in nature and was completely within control of the Department. As noted above, the act required by section 524.032(a) (i.e., holding the hearing) is not ministerial in nature and requires the significant involvement of SOAH.
Furthermore, a mandatory reading of section 524.032(a) could lead to the manipulation of the Chapter 524 provisions. As seen in the present case, an apparent mistake concerning Guerra's arrest date caused the Department to disregard Guerra's request as untimely. By the time the mistake was recognized, the only practicable time to set a hearing was outside the 40-day time frame required by section 524.032(a). Under such facts, it would be disingenuous for us to allow a licensee to take advantage of a mistake which may have been caused by his own neglect or inadvertence.
Third, the Legislature's failure to attach a consequence to a situation where a hearing is held outside the 40 days of the notice of suspension persuades us to hold section 524.032(a) directory. As stated in Chisholm, "absence of words stating the consequences of a failure to act within the time specified" supports a directory construction. See Chisholm, 287 S.W.2d at 945; see also Texas Department of Public Safety v. Mendoza, 956 S.W.2d 808, 812 (Tex. App.-Houston [14th Dist.] 1997, no pet. h.) (provision specifying a time period for performance of a duty by public officer but containing no language specifying a consequence for failure to act is generally directory). If the Legislature had intended for section 524.032(a) to be mandatory, it could have easily provided consequences for noncompliance. See Nash v. Civil Serv. Comm'n, Palestine, 864 S.W.2d 163, 166 (Tex. App.-Tyler 1993, no writ) (if not made explicit by Legislature to the contrary, statute requiring commission to hold hearing and render decision within 30 days of receiving notice of appeal does not deprive court of jurisdiction to hear case outside the 30 days).
Finally, we are not persuaded by Guerra's argument that he is left in "limbo" and deprived of due process if the 40 day time period to hold the hearing is not made mandatory. First, Chapter 524 provides various safeguards protecting the licensee when the Department seeks to suspend one's license. For example, sections 524.032(d) and 524.042 stay the Department's suspension until the ALJ renders a final decision or until 90 days after an appeal is filed with the county court. These safeguards were obviously placed within chapter 524 to protect the licensee from having his license suspended without the opportunity for a f
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