Texas Transportation Code § 524.035. Hearing

(a) The issues that must be proved at a hearing by a preponderance of the evidence are:

(1) whether:

(A) the person had an alcohol concentration of a level specified by Section 49.01(2)(B), Penal Code , while operating a motor vehicle in a public place or while operating a watercraft;  or

(B) the person was a minor on the date that the breath or blood specimen was obtained and had any detectable amount of alcohol in the minor's system while operating a motor vehicle in a public place or while operating a watercraft;  and

(2) whether reasonable suspicion to stop or probable cause to arrest the person existed.

(b) If the administrative law judge finds in the affirmative on each issue in Subsection (a), the suspension is sustained.

(c) If the administrative law judge does not find in the affirmative on each issue in Subsection (a), the department shall:

(1) return the person's driver's license to the person, if the license was taken by a peace officer under Section 524.011(b) ;

(2) reinstate the person's driver's license;  and

(3) rescind an order prohibiting the issuance of a driver's license to the person.

(d) An administrative law judge may not find in the affirmative on the issue in Subsection (a)(1) if:

(1) the person is an adult and the analysis of the person's breath or blood determined that the person had an alcohol concentration of a level below that specified by Section 49.01, Penal Code , at the time the specimen was taken;  or

(2) the person was a minor on the date that the breath or blood specimen was obtained and the administrative law judge does not find that the minor had any detectable amount of alcohol in the minor's system when the minor was arrested.

(e) The decision of the administrative law judge is final when issued and signed.


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