On an appeal from DPS hearing examiner of a denial of a hardship license application, the appeal was to county court and DPS sent me(as the county atty. in the county) an answer to file and wants me to appear on behalf of DPS to contest the application.
What authority controls this situation other than the county atty. being the State's atty. in criminal matters? I do not particularly want to appear in this matter as it appears to be a DPS administative issue. Any thoughts?

[This message was edited by mhartman on 12-15-03 at .]

DPS tried similar stunts with me several years ago. I told them I'd get to it when I had time...which has yet to happen. In the grand scheme of the one attorney office, those are so far back on the back burner that they never feel the heat. Guess I convinced them, as none have been offered to me in about 24 months!

You might suggest to DPS that you will deputize a DPS attorney as an assistant county attorney and they can go in your stead

If you object to representing DPS in appeal hearings on DL matters, you better watch out during the 2005 session. One of the interim issues the Criminal Justice Committee is looking at is the idea first brought up by Rep. Jack Stick in of his bills last session--moving ALR hearings out of SOAH and into the criminal court where the DWI is pending. That means that most likely YOU will get ALR in addition to the criminal case. Of course, who cares about double jeopardy/collateral estoppel (except the defense attorney of course).

Janette

I don't have a real problem in assisting DPS when I can, however, when a packet arrives on my desk with directions that I will appear on behalf of the department whether I want to or not and no one can point me to any authority to show that the county atty. represents DPS on D.L. matters, and the date of the hearing is set in the next few days, it appears to leave a prosecutor no discretion. I asked the judge to recuse me in this case because I was a potential witness, but it was just the way it was assumed that I had to represent the department and fight to uphold an appeal that I might not agree with.
I would be interested to know what gives the county atty. authority to handle these cases and what discretion one has deal with these cases.

For me, the solution would be easy. I would dismiss all ALR proceedings and decline to pursue them. It is a big waste of time.

What is the point of paying a judge, a police officer, and a couple of lawyers to pursue a short suspension of a DL that then gets reinstated with an occupational license? Statistics are not showing an increase in people providing breath samples because of ALR.

Isn't it more productive to purse the criminal case, obtain a conviction, get a longer DL suspension, and oppose the occupational license?

We wouldn't have this problem (and spend nearly as much money) if the Legislature had the courage to make refusal to provide a breath sample a crime (misdemeanor). So, I say abandon ALR and do some real work to collect evidence and prosecute DWI.

As long as we are at it, how about passing a presumption of intoxication if the BT is provided within 2 hours of the driving?

Took a quick look-see and found the following annotation to CCP 2.01:

"County attorneys and criminal district attorneys shall represent the State Department of Public Safety in local courts in appeals and actions resulting from acts and orders of the Department of Public Safety pursuant to the Safety Responsibility Act (Vernon's Ann.Civ.St. art. 6701h) the duties of district attorneys in this respect depend upon the specific legislative act creating their positions. Op.Atty.Gen.1957, No. WW-325."

(The Safety Responsibility Act as you know is the mandatory insurance provision known now as the Transportation Code Chapter 601.)

Took a look at Attorney General Opinion cited WW-325 and thought this tid-bit was priceless:

"The statutes of the State of Texas are very confusing concerning the powers, rights, and duties of county attorneys, district attorneys and criminal district attorneys."

WW-325 summarizes the CA's duties generally: "Any county attorney has the duty to represent the State in appeals and actions resulting from the operations of the Safety-Responsibility Act, since the Department of Public Safety is the agency affected and is an agency of the State of Texas. Criminal district attorneys, because of their succession to the powers of the county attorneys In the counties in which they are created, have the same duties as county attorneys with respect to actions arising from the Safety-Responsibility Act. District attorneys have duties with respect to the civil actions arising from the operation of the Safety-Responsibility Act in accordance with the Individual statutes creating their position, there being no general statute concerning or governing their duties in the realm of representation of the State."

I'm not saying I like it, but perhaps DPS is relying on this reasoning as authority to stuff their license cases down your throat?

Like I said, just another in the long, long list of things that can drive you to four letter words in 0 to 60...........

I understand,and correct me if I'm wrong, but an application for a 15 yr. old for a hardship license has nothing to do with safety responsiblilty does it?
To further John's point, I have a DWI pending now with test result of .082 &.083. The guy has a prior and does not seem willing to plead so we are going to have a battle over whether he was above .08 at the time he was driving 20-30 minutes before the test was given and I have no idead whenhe had his last drink. A presumption would be nice.
Additionally, it seems the test refusal rate has at least doubled and maybe tripled in the last few months.

John, I live in Williamson County, so I know how tough your office is on DWI offenders. (Remind me to tell you sometime about the lady who burst into tears when the officer told her she was in Williamson County, not Travis County after being arrested for DWI). Unfortunately, from my own experience as an ALR attorney several years ago, not all prosecutors pursue DWI offenders with your degree of zeal. I used to contact officers to come testify, and when I apologized for having to make them drive 60 or 65 miles for teh hearing, the officer would reassure me that they didn't mind because their county/district attorneys hadn't actually prosecuted a DWI case in years. At the time, a couple of county attorneys apparently plea-bargained DWI cases as PI. I agree that making refusal to take the breath test an offense and enacted a decent presumption clause in the DWI law would be preferable, but .....will we ever get it??? (What happened to those highway funds ALR was tied to at the time??)

FYI, I put together a chart and summary of the states' DWI/DUI laws which breaks down those who have presumptions and time of test laws. Very interesting.

Finally, if you have questions on county/county court at law or JP court DL-related hearings, give Becky Blewett at call (512-424-2000).

Janette Ansolabehere

Janette,

I certainly don't mean to criticize your efforts. You have done a fabulous job with what you have been given. And you have infinitely more patience than I have.

I just end up blurting out my concerns for the big picture in the hope that someday things will change for the better. And, they have changed slowly. But we need to get on to that last big step.

Culturally, Texans just aren't ready yet to stop drinking and driving. May a couple more hundred years of evolution...

What about Section 264.009, Family Code, entitled: Legal Representation of the Department: "...The department shall be represented in court by the county attorney in the county where the action is brought, unless the district attorney or criminal district attorney of the county elects to provide representation...."

Believe me when I say that I understand why prosecutors aren't happy to be handed a packet and simply told they need to be in court on "x" day at "y" time. Prosecutors are typically running like crazy just to keep up with their day to day case load. When I did appeal hearings on DL cases and needed a assistant county or district attorney (when we weren't deputized), I always tried to work with the attorney to accomodate his or her schedule. If you need help, please do contact either Becky Blewett or our Director of Hearings for the Driver License Division, Angela Parker. Both can reached through the 512-424-2000 number. They will be happy to assist you and can refer you to the Assistant Director of Hearings for the region in which your county or district is located.

Janette Ansolabehere

Hartman, you are right. The my post was information about another facet of DPS representation. You had asked, in a previous post in this thread, if you had to represent DPS. I was surmising that DPS may be using the same logic expressed in the authority I found for your representation in the hardship case.

OK, just ignore my last post....I saw DPRS, not DPS, which is what this thread is about. Never mind!

Tina, thanks as always.
There was also a case under the annotations that dealt with expungments that, if read broadly, could stand for the proposition that in civil cases the prosecutor does not have the right or the duty to represent DPS in such matters. Which brings me back to my original question, what is the law on this issue?
The prior AG cite you provided caused me to laugh and could qualify as one of the great understatements of Texas Jurisprudence, however, that may be the best answer available on this subject.

As long as your on the subject of what we gotta do, a new TDPRS-adult Protective services person came across a statute that says:
(a) Except as provided by Subsection (b), the prosecuting attorney representing the state in criminal cases in the county court shall represent the department in any proceeding under this chapter unless the representation would be a conflict of interest. Human Resources Code �48.040.
So, now we gotta be up on probate/guardianship law. Where will it end??