Wednesday, September 1, 2010

A new wrinkle in ALR practice?

I spent part of my morning at the State Office of Administrative Hearings on an ALR hearing for a DWI client. While observing some of the other hearings I noticed something I'd never seen before -- administrative law judges admitting documents even though an officer failed to appear after being subpoenaed.

Rule 159.211(c)(2) of the Texas Administrative Code states:
An officer's sworn report of relevant information shall be admissible as a public record. However, the defendant shall have the right to subpoena the officer in accordance with §159.103 of this title (relating to Subpoenas). If the defendant timely subpoenas an officer and the officer fails to appear without good cause, information obtained from that officer shall not be admissible. 
In each of these cases the officer who prepared the documents failed to appear after being subpoenaed by the defense. In each instance the attorney for the DPS sought to admit the documents as an offer of proof. The defense attorneys all objected on the grounds that the officer failed to appear after being subpoenaed. And, in each case, the administrative law judge admitted the documents but stated that any information provided by the officer who failed to appear would be disregarded.

In no case did the attorney for the DPS try to show that there was good cause for the officer's failure to appear. In no case did she raise any objection to the subpoena or its proof of service.

The old practice was for the DPS attorney to move for dismissal for the officer's failure to appear. Is this new practice designed to preserve evidence on the record in case the DPS chooses to appeal the finding of the administrative law judge? Is it being done so that the DPS can later raise the issue of sufficiency of service or show good cause for the officer's absence? Or is it yet another example of an administrative law judge who doesn't know the law?

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