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  1. #1
    Join Date
    Mar 2010
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    Default Administrative Procedure Act

    My question involves a driver's license issued by the State of: Texas

    Does anyone here have experience using the Administrative Procedure Act (APA) with regards to their states Transportation Code?

    The thought process goes like this (Texas Specifically):
    The Texas Transportation Code (TTrC) is enforced by the Texas Department of Public Safety (DPS).
    Both of which are "Agencies" as stated within the APA.
    As an agency they are required to utilize the Administrative Hearing process for any contested cases.
    In order to initiate a contested case, you must send a letter to the issuing agency requesting an Administrative hearing.
    After this, they must then give notice of a contested case to the parties involved and conduct the hearing which operates much like civil court.
    The judicial court (traffic court) would only have appellate jurisdiction in all contested cases.
    The state must exhaust all administrative remedies before proceeding in judicial court.
    The judicial court has no subject matter jurisdiction as it only has appellate jurisdiction, therefore it must dismiss the case until an administrative hearing has taken place.

    I can point out all the specific relevant statutes and codes that say this. I've already drafted my motions for dismissal. I'm just wondering if anyone else has utilized this before and successes or lessons learned.

    Short story gist is the legislative branch (state congress) gives the executive branch (agencies) the ability to write it's own rules with the force of law (statutes) and the ability to adjudicate any issues (administrative hearings). The executive branch has basically the power to write laws, enforce laws, and then judge those laws... but all administrative hearings can be appealed to a true judicial branch court and thus bring back into play the separation of powers. If they "jump the gun" by trying to take you to court before exhausting their administrative remedies, you can call them on it, demand due process, and keep out of court.

    Other half of the story is that the Texas Transportation Code is for commercial motor vehicles not my private property or the utilization thereof for my travel upon the public roads and highways in a non-commercial sense. The state has the power to regulate commerce, not travel.

    Thoughts?

  2. #2
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    Default Re: Administrative Procedure Act

    You believe that the State of Texas has no power to regulate private travel on a public roadway?

  3. #3
    Join Date
    Mar 2010
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    Default Re: Administrative Procedure Act

    Absolutely. But even more so, that by taking people to court before having an administrative hearing they are bypassing the accused's due process of law and allowing for an administrative remedy as the state legislature has designed all agencies to utilize.

  4. #4
    Join Date
    Aug 2007
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    Default Re: Administrative Procedure Act

    Quote Quoting Redbeard
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    The state has the power to regulate commerce, not travel.
    I have this case in my cannon of cases, does it discredit your premise??

    In part:

    The movement of motor vehicles over highways, being attended by constant and serious dangers to the public and also being abnormally destructive to the highways, is a proper subject of police regulation by the state.

    In the absence of national legislation covering the subject, a state may prescribe uniform regulations necessary for safety and order in respect to operation of motor vehicles on its highways, including those moving in interstate commerce.



    http://supreme.justia.com/us/235/610/case.html

  5. #5
    Join Date
    Mar 2010
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    19

    Default Re: Administrative Procedure Act

    No, though it's a nice case too. All in all, as I stated earlier, the states ability to "charge" someone with violations of the Texas Transportation Code falls within the administrative procedure act (APA) guidelines, just as violations of the Labor code fall within the same procedures. The state must exhaust their administrative remedies before proceeding to a judicial court. This is plainly stated in SCOTUS as well as Texas Supreme Court rulings.

    Texas is not the only state where traffic "violations" fall under the APA... check your state government code and see for yourself. It's sometimes named a little different but they usually all are written about the same. I know California has one as well.

  6. #6
    Join Date
    Dec 2004
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    Default Re: Administrative Procedure Act

    I may be totally wrong, but I think you've got it bassackwards. The APA is NOT a mechanism through which a state agency can charge you with a violation. It is a mechanism through which YOU can file a grievance against a state agency (among other things, such as participate in rule making).

    As you indicated in your first post:

    Quote Quoting Redbeard
    View Post
    In order to initiate a contested case, you must send a letter to the issuing agency requesting an Administrative hearing.
    After this, they must then give notice of a contested case to the parties involved and conduct the hearing which operates much like civil court.

    YOU must originate the hearing -- not the state.

    So, let me get this straight. When you get pulled over for 80 in a 25 zone, say. YOU would go home and immediately file a grievance against the DOT for having such a ridiculous speed limit? Or against the police or DPS for daring to enforce it? Because that's what the APA is all about. It has NOTHING to do with the state filing charges against you.

    Of course, I've been known to be wrong -- just as my wife.
    Barry

  7. #7
    Join Date
    Mar 2010
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    19

    Default Re: Administrative Procedure Act

    Barry,

    The "agency" gives you the ticket first. If you don't contest it, then you end up paying (well, that or going to court).

    Yes, "you" have to initiate the contested case by sending the letter to the issuing agency, however they "charged" you first.

    If you believe the agency is wrong, or that the statute is wrong, or that it's misapplied then you contest the "ticket" and have an administrative hearing. This isn't a new concept. It's used all the time for DUI's with an administrative hearing conducted in front of an administrative law judge to have an administrative license revocation (ALR). It's clearly spelled out how they do this, all while operating within the executive branch and never utilizing the judicial courts.

    Here in Texas these are conducted according to the State Office of Administrative Hearings (SOHA). And our APA clearly states that if the agency is not specifically excluded from using the APA process, it falls within it, and this is the correct way to deal with "traffic tickets".

    So, in a way, you're correct. Though it's not a grievance you file, it's a letter to the agency that wrote the ticket stating you dispute the facts of the document ("ticket/citation") or something along those lines and that you are requesting an administrative hearing for a contested case. You tell them to provide you notice of the administrative hearing and go from there. The Administrative Procedure Act of the states is a very powerful tool that gets overlooked far too often.

    As to the reason why you use it, well... that's a long history lesson.

  8. #8
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    Default Re: Administrative Procedure Act

    Quote Quoting Redbeard
    View Post
    It's used all the time for DUI's with an administrative hearing conducted in front of an administrative law judge to have an administrative license revocation (ALR). It's clearly spelled out how they do this, all while operating within the executive branch and never utilizing the judicial courts.

    You may, indeed, be right, but you haven't convinced me. Even in your example, the admin hearing with the DMV over license revocation is the result of "statutory" administrative revocation -- not one due to the sentence imposed by the court. Examples of administrative revocation include: Failure to Respond, Failure to Appear, refusal to take a Breathalyzer test, etc. In these cases the Supreme Court has ruled that before the state can take your license, you MUST have the opportunity to request an administrative hearing (see Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971)). And THAT'S the source of most APA's.

    But, those admin hearings have NOTHING to do with the charges themselves. If you refuse a Breathalyzer test, your license WILL be revoked by statute. However, even if you DO NOT request an admin hearing concerning the revocation, there may still be a judicial hearing about the DUI charge (if the prosecutor believes there is still enough evidence even without the test). Even if you do request an admin hearing, the charges against you will proceed anyway. One is NOT conditional upon the other.

    But, feel free to test your theories in court. You may just run across a really stupid judge.

    Barry

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