TURNAGE v. JPI MULTIFAMILY INC

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Court of Appeals of Texas,Houston (1st Dist.).

Donald TURNAGE, Appellant, v. JPI MULTIFAMILY, INC., Appellee.

No. 01-01-00163-CV.

Decided: December 20, 2001

Panel consists of Justices COHEN, HEDGES, and TAFT. John Lindsley McCraw, McKinney, for Appellant. Philip Robert Brinson, Brown Sims, P.C., Houston, for Appellee.

OPINION

Appellant, Donald Turnage, appeals a take-nothing summary judgment rendered against him.   We affirm.

Background

This lawsuit arises out of a confrontation between Turnage and off-duty Houston Police Department (HPD) Officer Borza in an apartment complex at about 2:30 in the morning.   Appellee JPI MultiFamily, Inc. (JPI) managed the apartment complex, and Borza provided security for the apartments.   Turnage was arrested for driving while intoxicated (DWI) and for attempting to disarm a peace officer.   At a license-suspension hearing, the parties disputed (1) whether Turnage drove his car recklessly into the parking lot, almost ran the car into an apartment building, left the car running in the middle of the lot, or argued loudly with his wife upon arriving at or entering his apartment and (2) whether Turnage or Borza instigated the fight that ensued when Borza then went to Turnage's apartment to investigate.   The administrative law judge (ALJ) found against Turnage and suspended Turnage's license;  Turnage did not appeal the suspension.   He was later acquitted of attempted disarming of a peace officer, and the State dismissed the criminal DWI charge.

Turnage sued on theories of (1) assault, battery, and trespassing against Borza, and against the apartment owner and JPI under the doctrine of “rule of force” and respondeat superior;  (2) negligent hiring and supervision against the apartment owner and JPI;  (3) negligence in “directing Borza to confront Mr. Turnage ․ who was peaceably occupying his apartment” against the apartment owner and JPI;  and (4) breach of express and implied warranty, for allegedly warranting “the right to peacefully occupy [Turnage's] leased apartment,” against JPI and the apartment owner.

JPI moved for 166a(c) summary judgment against Turnage on the following grounds:  (1) collateral estoppel barred relitigation of whether Borza acted with reasonable suspicion and probable cause leading up to Turnage's arrest;  (2) when Borza acted under reasonable suspicion and probable cause, he was as a matter of law performing the public duties of a police officer, precluding his then being JPI's agent;  (3) JPI was thus not liable for Borza's torts under any pled theory;  (4) Texas does not recognize causes of action for breach of express or implied warranties “to peacefully occupy a leased premise”;  and (5) Texas does not recognize separate causes of action for negligent direction or supervision of an employee, apart from negligent hiring.   Turnage also moved for 166a(i) summary judgment in the same motion, asserting there was no evidence showing (1) the proximate cause, act or omission, or knowledge elements of negligent hiring of Borza;  (2) malice;  or (3) an express warranty of a right peacefully to occupy the apartment.   The trial judge granted JPI's summary judgment motion without specifying grounds.   The trial judge severed Turnage's claims against JPI from Turnage's claims against the other defendants.

Discussion

A. Unchallenged Ruling

Turnage does not challenge on appeal the 166a(i) summary judgment rendered against his claims for (1) breach of express and implied warranty;  (2) negligent hiring, direction, and supervision;  and (3) exemplary damages.   Neither does he attack the 166a(c) summary judgment rendered against the first two claims.   We thus affirm summary judgment rendered on all three of those claims.   See Garcia v. Nat'l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

B. Collateral Estoppel

In issue one, appellant claims collateral estoppel does not bar relitigation of probable cause.

 “A party seeking to assert the bar of collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action;  (2) those facts were essential to the judgment in the first action;  and (3) the parties were cast as adversaries in the first action.”   E.g., Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994).  “Application of collateral estoppel also involves considerations of fairness not encompassed by the ‘full and fair opportunity’ inquiry.”  Id. at 804.   We follow the usual standard of review of a 166a(c) summary judgment motion rendered on an affirmative defense like this.   See Tex.R. Civ. P. 166a(c);  Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997).

1. Whether the Suspension Order was Final

 Turnage first argues that the ALJ's suspension order is not “final” and thus cannot estop him because the order was automatically rescinded by Turnage's later acquittal for attempting to disarm a peace officer.   We disagree.

Chapter 724 of the Transportation Code applies because appellant's license was suspended for refusing to take a breathalyzer test.   See Tex. Transp.   Code Ann. § 724.002 (Vernon 1999).   Chapter 724 provides that

If a criminal charge arising from the same arrest as the suspension under this chapter results in an acquittal, the suspension under this chapter may not be imposed.   If suspension under this chapter has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the individual.

Tex. Transp.   Code Ann. § 724.048(c) (Vernon 1999).   Turnage, however, was acquitted of attempting to disarm an officer, and the DWI charge against him was then dismissed.   Turnage was not acquitted of DWI.

At the time applicable to this case, Chapter 724's license-suspension provisions applied only to one arrested for an offense involving the operation of a motor vehicle.   See id. at § 724.002, amended by Act of May 16, 2001, 77th Leg., R.S., ch. 444, § 7, 77 Tex. Gen. Laws 877, 878 (amending section 724.002 to read, “The provisions of this chapter ․ apply only to a person arrested for an offense involving the operation of a motor vehicle or watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above.”) (effective Sept. 1, 2001).   Disarming a peace officer is not an offense involving the operation of a motor vehicle.   See Tex. Penal Code Ann. § 38.14(b) (Vernon Supp.2002) (defining the offense).   Turnage cites no authority providing that an acquittal for an offense not involving the operation of a motor vehicle would trigger section 724.048(c), and we have found none.

The only published cases we have found discussing section 724.048(c) or its predecessors did so in the context of DWI prosecutions.   See Texas Dep't of Pub. Safety v. Stockton, 53 S.W.3d 421, 423-24 (Tex.App.-San Antonio 2001, pet. denied);  Texas Dep't of Pub. Safety v. Norrell, 968 S.W.2d 16, 18-19 (Tex.App.-Corpus Christi 1998, no pet.);   cf.  Arnold v. State, 920 S.W.2d 704, 714 (Tex.App.-Houston [1st Dist.] 1996, pet. ref'd) (in dicta and in different context:  “Moreover, the suspension statute contains an ‘innocent driver’ defense․ Under [section 724.048(c)'s predecessor], if the DWI case results in acquittal, a suspension shall not be imposed․”);  Ex parte Tharp, 912 S.W.2d 887, 893 (Tex.App.-Fort Worth 1995) (in dicta and in different context, noting that section 724.048(c)'s predecessor “mandates that a suspension be expunged from the record of the driver if the driver is ultimately acquitted at trial of driving while intoxicated.”), aff'd, 935 S.W.2d 157 (Tex.Crim.App.1996).

The Transportation Code incorporates the Code Construction Act,1 which (1) allows us to consider the statute's object and the proposed construction's consequences and (2) creates a presumption that the legislature intended a just and reasonable result.   Tex. Gov't Code Ann. §§ 311.021(3), 311.023(1), (5) (Vernon 1998).   Turnage's construction would mean that a defendant acquitted of an offense completely unrelated to the objectives of the Transportation Code, such as assault, capital murder of a police officer, or, as here, disarming an officer, would receive as a benefit reinstatement of his driver's license and expunction of the license suspension.   That is an absurd benefit to give to one acquitted of such crimes because being innocent of them does not imply one is fit to drive.   Rescission and expunction make sense only as benefits of acquittal on traffic offenses arising “under this Chapter [724].”   Such an interpretation takes into account the statute's object and achieves a reasonable result.   See Tex. Gov't Code Ann. §§ 311.021(3), 311.023(1), (5).

 In fact, the Texas Department of Public Safety (DPS) has now interpreted section 724.048(c) as we do here:

Upon notification that a criminal charge under Texas Penal Code, § 49.04, § 49.07, § 49.08, or Texas Alcoholic Beverage Code, § 106.041, has resulted in an acquittal, the department shall not impose a suspension arising out of the same conduct or transaction.   If a suspension has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the defendant.

37 Tex. Admin.   CodeE § 17.13(a) (2001) (emphasis added).2  The laws that Administrative Code section 17.13 refers to all concern intoxication offenses involving motor vehicles, aircraft, watercraft, or amusement rides.   See Tex. Penal Code Ann. §§ 49.04, 49.07, 49.08 (Vernon Supp.2002);  Tex. Alco. Bev.Code Ann. § 106.041 (Vernon Supp.2002).   The interpretation of a statute by the administrative agency charged with enforcing it is a factor courts consider when construing the same statute.   E.g., Texas Water Comm'n v. Brushy Creek Mun. Util. Dist., 917 S.W.2d 19, 21 (Tex.1996).

Put in the above context, the evolution of section 724.048(c)'s language supports our reading.   The original statute provided that if a person

be found “not guilty” of the offense of driving while under the influence of intoxicating liquor or if said cause be dismissed, then the Director of the Texas Department of Public Safety shall in no case suspend such person's driver's license;  or, in the event that proceedings had been instituted resulting in the suspension of such person's driver's license, then the Director of the Texas Department of Public Safety shall immediately reinstate such license upon notification of such acquittal or dismissal․

Act of May 21, 1969, 61st Leg., R.S., ch. 434, 61 Tex. Gen. Laws 1468, 1469 (emphasis added).   The same language was carried forward into the next amendment.   Act of May 25, 1971, 62nd Leg., R.S., ch. 709, § 2, 62 Tex. Gen. Laws 2340, 2342.   Although this “innocent driver” defense was removed altogether in 1983,3 it was added back in 1993:

Provided, that if a criminal charge under Article 6701l 1, Revised Statutes, or Section 19.05(a)(2), Penal Code, results in an acquittal, a suspension under this article shall not be imposed.   If a suspension under this article has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the individual.

Act of May 29, 1993, 73rd Leg., R.S., ch. 886, § 9, 73 Tex. Gen. Laws 3515, 3526 (emphasis added).  “Article 6701 l -1, Revised Statutes, or Section 19.05(a)(2), Penal Code” were the predecessors to those parts of current Penal Code chapter 49 concerning DWI, intoxication assault, and intoxication manslaughter, each of which involves operating a motor vehicle.   See Tex. Penal Code Ann. §§ 49.04, 49.07, 49.08.

When the Transportation Code was enacted in 1995, it read in pertinent part as follows:

Sec. 724.048 ․ (c) If a criminal charge under Chapter 49, Penal Code, 4 results in an acquittal, a suspension under this chapter [724] may not be imposed.   If a suspension under this chapter has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving record of the individual.   (V.A.C.S. Art. 6701 l -5, Sec.2(r)).

Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 1, 74 Tex. Gen. Laws 1025, 1825 (now codified, as amended, at Tex. Transp.   Code Ann. § 724.048(c)).  No substantive change was intended,5 and none was made.   Finally, section 724.048(c) was amended in 1997 to read as it has since the time it was applied to Turnage:

If a criminal charge arising from the same arrest as a suspension under this chapter results in an acquittal, the suspension under this chapter may not be imposed.   If suspension under this chapter has already been imposed, the department shall rescind the suspension and remove references to the suspension from the computerized driving records of the individual.

Act of June 1, 1997, 75th Leg., ch. 1013, § 36, 75 Tex. Gen. Laws 3686, 3699 (now codified at Tex. Transp.   Code Ann. § 724.048(c)) (emphasis added).

In a vacuum, the emphasized, 1997 language could be read either as Turnage argues or as we hold today.   But we do not interpret that language in a vacuum.   Instead, given the Code's purpose, the rules of construction, the presumption that the legislature intended a reasonable result, and the DPS's interpretation of section 724.048(c), we hold that section 724.048(c) applies to acquittals of intoxication offenses involving operation of motor vehicles.6  In this context, we do not believe the legislature intended the 1997 amendment substantively to alter the longstanding, consistent, and express meaning given previous versions of section 724.048(c) and its predecessors.

We overrule this argument under issue one.

2. Whether the Facts Were Fully and Fairly Litigated in the License Suspension Hearing

Turnage next contends the facts concerning reasonable suspicion and probable cause were not fully and fairly litigated because the administrative hearing (1) did not allow him full discovery;  (2) had to be held quickly after notice of suspension was issued;  and (3) was held before a judge, not a jury.   Alternatively, Turnage argues applying collateral estoppel on these issues would be unfair.

 “Collateral estoppel applies to administrative agency orders when the agency is ‘acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.’ ”  Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 830 (Tex.App.-Dallas 1994, writ denied).7

 Turnage does not argue that the ALJ was not acting in a judicial capacity, and we believe that she was by deciding disputed fact issues.   Although extensive discovery is not allowed, and the license-suspension hearing is held relatively soon after the offense, we hold that Turnage had an “adequate opportunity to litigate” both probable cause and reasonable suspicion.   Both parties to the revocation hearing were adversaries represented by counsel, each put on witnesses, and each cross-examined the other's witnesses thoroughly.   See Muckelroy, 884 S.W.2d at 831 (holding collateral estoppel applied to agency's factual determination when the commissioner held full hearing, both parties were represented by counsel and were adversaries, and the parties had adequate opportunity to litigate the issue fully).   The rules of evidence applied, limited pre-hearing discovery was allowed, third-party subpoenas were allowed, the proceedings were recorded, they were open to the public, the preponderance-of-the-evidence standard applied, and Turnage had the right to appeal, but did not.8  Turnage did not explain here or below what witnesses he would have called had he had more discovery or time in the license-revocation hearing.   Accordingly, we hold Turnage had an “adequate opportunity to litigate” reasonable suspicion and probable cause.   We further hold that nothing makes the application of collateral estoppel under these circumstances unfair.

Accordingly, we overrule this challenge under issue one.

We affirm the judgment.

The discussion of the remaining issues does not meet the criteria for publication.   See Tex.R.App. P. 47.4.   Accordingly, the remainder of the opinion is not designated for publication.   See id.

3. Whether Applying Collateral Estoppel Would Violate the Texas Constitution's Right to a Jury Trial

Turnage also argues applying collateral estoppel would violate the Texas Constitution by depriving him of a jury trial.   See Tex. Const. art.   V, § 10.   He argues as follows on appeal:

No court has ruled that an administrative magistrate may make a ruling in a proceeding in which the litigants cannot have a jury, and have that ruling collaterally estop a party from having the fact determined in another forum by another jury.   Simply stated, fact issues are reserved for a jury in Texas, if one is timely requested.   Although the Texas Supreme Court has attempted to leave this very question open, see Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 n. 7 (Tex.1994) and Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 525 (Tex.1998), the Texas Supreme Court has recognized by implication that it takes a fact finding of a ultimate issue of fact in the litigation by a jury to collaterally estop a party in subsequent litigation.   See Tarter v. Metropolitan Sav. & Loan Ass'n, 744 S.W.2d 926, 928 (Tex.1988).   In Tarter, the Supreme Court recognizes that collateral estoppel only applies to those ultimate issues in the first case that supports the judgment.   The case then defines “ultimate issue” in the underlying case as factual determinations submitted to a jury that are necessary to form the basis of the judgment.  Tarter v. Metropolitan Sav. & Loan Ass'n, 744 S.W.2d 926, 928 (Tex.1988).   Implicit in that ruling is the foundational principle that a party must at least have a right to have factual determinations submitted to a jury, even if that right is waived and a court makes the fact finding, before collateral estoppel will be applied.   Although there is no mandate from the Texas Supreme Court settling this issue, the Tarter case clearly indicates authority for that position that Mr. Turnage's Texas Constitutional right to a jury trial is required in the first action before collateral estoppel will be applied in the second action.   Collateral estoppel should not be employed to deny Mr. Turnage's access to a jury trial to establish these hotly contested facts.

(Emphasis in original.) 9

The opinions Turnage cites do not hold that applying collateral estoppel to an administrative ruling violates the Texas Constitution. The Johnson & Higgins Court merely recognized as “open” the question of whether issues decided by a judge in a federal trial could collaterally estop a state court litigant, but did not reach the issue because it was not raised.  Id., 962 S.W.2d at 525.   The Trapnell Court merely noted that, because it thought collateral estoppel should not be applied for other reasons, the Court would not reach the issue of whether a difference in federal and state collateral estoppel law affected the right to a jury trial under the Texas Constitution;  the Court also noted, however, that it perceived “little difference between the federal courts' formulation of the doctrine [of collateral estoppel] and our own.”  Id., 890 S.W.2d at 801 n. 7. The Tarter Court was not considering the issue before us because no constitutional argument was raised concerning the right to a jury trial.   See id., 744 S.W.2d at 927-28.   Thus, the Court's passing statement that “[u]ltimate issues are those factual determinations submitted to a jury that are necessary to form the basis of a judgment” does not hold the weight that Turnage claims.   See id. at 928.   None of these cases held that collateral estoppel would not apply in a case like this.

The United States Supreme Court “has previously rejected the position that collateral estoppel violates a party's Seventh Amendment right to trial by jury.”  Johnson & Higgins, 962 S.W.2d at 525 (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 333-37, 99 S.Ct. 645, 652-55, 58 L.Ed.2d 552 (1979)).   Turnage does not contend that his right to a jury trial under the Texas Constitution is broader than the same right under the federal constitution.   Thus, that issue is not before us.  Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993) (“[C]ourts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error.”).   Moreover, although they may not have expressly held that collateral estoppel from administrative determinations does not violate the Texas Constitution, Texas courts have repeatedly applied the doctrine of collateral estoppel to administrative findings.  Muckelroy, 884 S.W.2d at 830;  Cianci v. M. Till, Inc., 34 S.W.3d 327, 330 (Tex.App.-Eastland 2000, no pet.);  Bryant v. L.H. Moore Canning Co., 509 S.W.2d 432, 434 (Tex. Civ.App.-Corpus Christi 1974, no writ), cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 74 (1974);  see also Coalition of Cities for Affordable Util. Rates v. Pub. Util. Comm'n of Texas, 798 S.W.2d 560, 563-65 (Tex.1990) (applying collateral estoppel to historical fact issues determined at administrative hearing);  cf.  Ex parte Tarver, 695 S.W.2d 344, 353 (Tex.App.-Houston [1st Dist.] 1985) (concluding collateral estoppel effect of probation revocation barred related criminal prosecution), aff'd, 725 S.W.2d 195, 198-99 (Tex.Crim.App.1986) (same).

We overrule this challenge under issue one.

4. Whether the Ultimate Fact Issue Was Identical and Essential to the judgment

Turnage next argues that the ultimate factual issues in the two proceedings are not identical.   Specifically, Turnage claims that the ultimate issue in the trial court was whether probable cause existed before the alleged trespass and assault occurred;  in contrast, he argues the ultimate issue in the license-revocation hearing was only whether probable cause existed “at all during that day.”   Because Turnage did not raise this “timing” argument below, he is limited on appeal to arguing the legal sufficiency of JPI's summary judgment grounds and evidence.  McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993).   We construe this argument as challenging the legal sufficiency of JPI's motion's grounds.

The issues at the license-revocation hearing included whether (1) reasonable suspicion or probable cause existed to stop or arrest Turnage and (2) probable cause existed to believe that Turnage was driving while intoxicated.   Tex. Transp.   Code Ann. § 724.042(1)-(2)(A) (Vernon 1999), as amended by Act of May 16, 2001, 77th Leg, R.S., ch. 444, § 12, 77 Tex. Gen. Laws 877, 880.   In Turnage's suit, the issue was whether Borza was acting as a police officer, and not JPI's agent, before the alleged torts.   However, Turnage admits that this “agency” issue turns on whether he committed a crime in Borza's presence before Borza committed the alleged torts, i.e., whether Borza had probable cause to arrest Turnage before that point.

Police officers have a duty to prevent crime and arrest offenders 24 hours a day,10 and that public duty is triggered any time an officer observes a crime, even outside the hours of his official work.   Accordingly, when working for a private employer, a police officer ceases being the private employer's agent when his public duty is triggered.   See City of Dallas v. Half-Price Books, Records, Magazines, Inc., 883 S.W.2d 374, 377 (Tex.App.-Dallas 1994, no writ).11  “If the officer is performing a public duty, such as the enforcement of general laws, the officer's private employer incurs no vicarious responsibility for that officer's acts, even though the employer may have directed the activities.   If the officer was engaged in protecting the employer's property, ejecting trespassers, or enforcing rules and regulations promulgated by the employer, however, the trier of fact decides whether the officer was acting as a public officer or as a servant of the employer.”   Mansfield v. C.F. Bent Tree Apt. Ltd. Partnership, 37 S.W.3d 145, 150 (Tex.App.-Austin 2001, no pet.) (deciding issue as matter of law).

The ALJ's suspension order found as follows:

1) On 10-30-97 reasonable suspicion to stop the Defendant existed, in that Officer Borza observed Defendant operate a Ford at 1333 Eldridge Parkway, a public road in Houston, Harris County, TX, drive recklessly in the parking lot by sliding sideways and almost striking an apartment building.   This information was relayed to Sgt. Morton and Officer Smith.

2) On the same date, probable cause to arrest the Defendant existed, in that probable cause existed to believe that Defendant was operating a motor vehicle in a public place while intoxicated, because in addition to the facts in No. 1:  Defendant was observed by Officer Borza to exhibit bloodshot, glassy eyes, mumbled speech and to have a very strong odor of alcoholic beverage on his person and breath, Defendant admitted to Officer Borza to have had 3 beers.   No field sobriety tests were able to be conducted due to Defendant's combativeness.

(Emphasis added.)

Turnage's argument overlooks the facts leading to reasonable suspicion.   Once Borza had reasonable suspicion to stop Turnage for suspected DWI-caused by Turnage's driving recklessly in the parking lot and then nearly sliding sideways into a building-Borza's public duty was triggered.   Turnage does not contend that his reckless driving occurred after Borza confronted and arrested him in his apartment.   The undisputed evidence is that the driving did not then occur.

Although the cases the parties cite generally address an officer's witnessing a crime as triggering his public duty, an officer's public duty can also be triggered by reasonable suspicion.   Peace officers have a duty to prevent and suppress suspected crime and to keep the peace.   See Tex.Code Crim. Proc. Ann. art. 2.13(a), (b)(1) (Vernon Supp.2002) (officers have duty to preserve the peace in their jurisdiction and, when authorized by the Code, to interfere without a warrant to prevent or suppress crime).   Part of crime prevention and suppression is investigating upon reasonable suspicion of a crime.   An officer may temporarily detain a person for investigation based on reasonable suspicion, even if the officer does not yet know facts justifying an arrest based upon probable cause.   See, e.g., Crockett v. State, 803 S.W.2d 308, 311 (Tex.Crim.App.1991).   Therefore, even if the license-suspension order does not show the timing of probable cause, that order necessarily shows reasonable suspicion arose before Borza approached Turnage.   Reasonable suspicion to detain temporarily is a lower standard than probable cause to arrest, and it is undisputed that Borza had at least reasonable suspicion when he approached Turnage.

Accordingly, we overrule this challenge under issue one.

C. Police Officer vs.   Security Guard

In issue two, appellant concedes that, “if there is undisputed evidence that Borza had probable cause that Mr. Turnage was committing an offense within Borza's view before Borza trespassed into the Turnage apartment and assaulted Mr. Turnage, then JPI has a defense as a matter of law because Borza would cease to be a security guard and become a police officer before the trespass and assault occurred.”  (Emphasis added.)   However, Turnage claims that nothing shows that the probable cause the ALJ found occurred before the alleged trespass and assault.   That is, Turnage argues JPI did not carry its burden on “timing” because nothing fixes probable cause as having occurred before Borza's torts.12  We reject this argument for the same reasons that we rejected Turnage's challenge that the ultimate factual issues in the two proceedings were not identical.

Turnage further argues that, even if JPI had carried its burden, there was evidence raising a fact issue on timing.   He relies on evidence from the license-revocation hearing (attached to JPI's summary judgment motion) that (1) Borza claimed he came to Turnage's apartment immediately after seeing Turnage drive recklessly, while Turnage's wife testified there was a five to 10 minute gap;  (2) Borza admitted Turnage was inside his apartment when Borza first touched Turnage and that Borza did not have permission to enter;  and (3) “Borza never indicated that he had probable cause to arrest Mr. Turnage for DWI before he confronted Mr. Turnage.”   How long it took Borza to reach Turnage's door has no bearing on whether Borza had reasonable suspicion to detain or probable cause to arrest.   The remaining facts all pertain to probable cause to arrest, but we have already held that the earlier-arising reasonable suspicion had already triggered Borza's public duty.

We overrule issue two.

Conclusion

We affirm the judgment.

FOOTNOTES

1.   Tex. Transp.   Code Ann. § 1.002 (Vernon 1999).

2.   Administrative Code section 17.13 applies to chapter 724 license suspensions.   37 Tex. Admin.   CodeE § 17.1 (2001).

3.   Act of May 27, 1983, 68th Leg., R.S., ch. 303, § 4, 68 Tex. Gen. Laws 1568, 1581.

4.   Penal Code chapter 49 concerns “Intoxication and Alcoholic Beverage Offenses.”   Tex. Penal Code Ann. §§ 49.01-.11 (Vernon Supp.2002).

5.   Act of May 1, 1995, 74th Leg., R.S., ch. 165, § 25, 74 Tex. Gen. Laws 1025, 1871 (so stating).

6.   Under the 2001 amendment to section 724.002, section 724.048(c) would also apply to acquittals of intoxication offenses involving operation of watercraft powered with an engine having a manufacturer's rating of 50 horsepower or above.   See Act of May 16, 2001, 77th Leg., R.S., ch. 444, § 7, 77 Tex. Gen. Laws 877, 878 (effective Sept. 1, 2001).   We need not decide whether section 724.048(c) applies to intoxication offenses involving aircraft, other watercraft, or amusement rides.   See 37 Tex. Admin.   CodeE § 17.13(a) (2001) (including these offenses by referencing Tex. Penal Code Ann. §§ 49.07, 49.08 (Vernon Supp.2002)).   Even if the section applies in these three situations, that does not affect the outcome of this case.

7.   Accord Cianci v. M. Till, Inc., 34 S.W.3d 327, 330 (Tex.App.-Eastland 2000, no pet.);  Bryant v. L.H. Moore Canning Co., 509 S.W.2d 432, 434 (Tex.Civ.App.-Corpus Christi 1974, no writ), cert. denied, 419 U.S. 845, 95 S.Ct. 79, 42 L.Ed.2d 74 (1974);  see also Coalition of Cities for Affordable Util. Rates v. Pub. Util. Comm'n of Texas, 798 S.W.2d 560, 563-65 (Tex.1990) (applying collateral estoppel to historical fact issues determined at administrative hearing);  United States v. Utah Constr. & Mining Co., 384 U.S. 394, 421-22, 86 S.Ct. 1545, 1559-60, 16 L.Ed.2d 642 (1966) (“When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.”);  Univ. of Tennessee v. Elliott, 478 U.S. 788, 797-98, 106 S.Ct. 3220, 3225-26, 92 L.Ed.2d 635 (1986) (citing Utah Constr. & Mining, concerning collateral estoppel);  Ex parte Tarver, 695 S.W.2d 344, 353 (Tex.App.-Houston [1st Dist.] 1985) (concluding collateral estoppel effect of probation revocation barred related criminal prosecution), aff'd, 725 S.W.2d 195, 198-99 (Tex.Crim.App.1986).

8.   See Tex. Transp.   Code Ann. § 724.003 (Vernon 1999) (ordering promulgation of rules for license-revocation hearings);  id. at § 724.041 (providing for hearing and its recording);  id. at § 724.047 (incorporating Transportation Code cha. 524 on appeals);  id. at § 524.041 (appeal from hearing);  id. at § 524.043 (allowing additional evidence to be taken upon appeal, at judge's trial discretion and under proper circumstances);  id. at § 524.044 (allowing party to obtain hearing's transcript for appeal);  1 Tex. Admin.   Code § 159.1(c) (2001) (Administrative Procedure Act applicable, unless conflict exists);  id. at § 159.13(1)-(5) (allowing defendant to have the following pre-hearing discovery:  (1) inspection and copying of department's non-privileged documents and records, with requirement that department supplement all discovery responses and with exclusionary rule if defendant is harmed because of non-disclosure, and (2) subpoena duces tecum for third parties);  id. at § 159.17 (allowing issuance of subpoenas or subpoenas duces tecum);  id. at § 159.23 (Administrative Procedure Act's provisions apply, unless they conflict with the TAC regulations;  rules of evidence applicable to non-jury trials apply;  witnesses testify under oath;  officer's report is admissible, unless officer does not show for hearing after being subpoenaed;  hearing is tape recorded);  id. at § 159.19(c) (preponderance of evidence burden on department);  id. at § 159.29(a) (same);  id. at § 159.35 (hearing generally open to the public);  id. at § 159.37 (providing for appeal, including allowing additional evidence to be taken at judge's trial discretion and under proper circumstances).

FN9.  Turnage also argues that allowing collateral estoppel to apply would give “abusive peace officers free reign to take whatever action their heart desires free of the possibility of civil liability” and that a “magistrate hired by the Texas Department of Public Safety could effectively insulate the officer's employers,” but these policy arguments have nothing to do with the doctrine's constitutionality..  FN9.  Turnage also argues that allowing collateral estoppel to apply would give “abusive peace officers free reign to take whatever action their heart desires free of the possibility of civil liability” and that a “magistrate hired by the Texas Department of Public Safety could effectively insulate the officer's employers,” but these policy arguments have nothing to do with the doctrine's constitutionality.

FN10. Wood v. State, 486 S.W.2d 771, 774 (Tex.Crim.App.1972);  Monroe v. State, 465 S.W.2d 757, 759 (Tex.Crim.App.1971)..  FN10. Wood v. State, 486 S.W.2d 771, 774 (Tex.Crim.App.1972);  Monroe v. State, 465 S.W.2d 757, 759 (Tex.Crim.App.1971).

FN11.  See also Tex.Code Crim. Proc. Ann. art. 2.13(a), (b)(1) (Vernon Supp.2002) (officers have duty to preserve peace and, when authorized by the Code, to interfere without a warrant to prevent or suppress crime);  id., art. 6.06 (Vernon 1977) (officers have duty to prevent person in officer's presence or view from committing offense against another's person or property or from injuring himself);  cf., e.g., Hafdahl v. State, 805 S.W.2d 396, 401 (Tex.Crim.App.1990) (off-duty officer was performing official duties when he was shot after stopping to assist in a traffic accident), overruled on other grounds, Madden v. State, 799 S.W.2d 683, 686 n. 3 (Tex.Crim.App.1990);  Wood, 486 S.W.2d at 774 (off-duty officers were in performance of official duties when they observed man commit misdemeanor);  Monroe, 465 S.W.2d at 759 (off-duty officer was in performance of his official duties when he arrested man for public intoxication);  Firemen's & Policemen's Civil Serv. Comm'n, City of Austin v. Burnham, 715 S.W.2d 809, 811 (Tex.App.-Austin 1986, writ denied) (“A police officer's off-duty status is not a limitation upon his discharge of police authority in the presence of criminal activity.”)..  FN11.  See also Tex.Code Crim. Proc. Ann. art. 2.13(a), (b)(1) (Vernon Supp.2002) (officers have duty to preserve peace and, when authorized by the Code, to interfere without a warrant to prevent or suppress crime);  id., art. 6.06 (Vernon 1977) (officers have duty to prevent person in officer's presence or view from committing offense against another's person or property or from injuring himself);  cf., e.g., Hafdahl v. State, 805 S.W.2d 396, 401 (Tex.Crim.App.1990) (off-duty officer was performing official duties when he was shot after stopping to assist in a traffic accident), overruled on other grounds, Madden v. State, 799 S.W.2d 683, 686 n. 3 (Tex.Crim.App.1990);  Wood, 486 S.W.2d at 774 (off-duty officers were in performance of official duties when they observed man commit misdemeanor);  Monroe, 465 S.W.2d at 759 (off-duty officer was in performance of his official duties when he arrested man for public intoxication);  Firemen's & Policemen's Civil Serv. Comm'n, City of Austin v. Burnham, 715 S.W.2d 809, 811 (Tex.App.-Austin 1986, writ denied) (“A police officer's off-duty status is not a limitation upon his discharge of police authority in the presence of criminal activity.”).

FN12.  Again, Turnage did not raise this aspect of his “timing” argument below, but, as above, we construe this as a permissible challenge on the legal sufficiency of JPI's motion's grounds.   See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993)..  FN12.  Again, Turnage did not raise this aspect of his “timing” argument below, but, as above, we construe this as a permissible challenge on the legal sufficiency of JPI's motion's grounds.   See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex.1993).

MURRY B. COHEN, Justice.

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