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Administrative/Government Law No. 02-02-280-CV, 4/24/2003. Click here for the full text of this decision FACTS: The Texas Department of Public Safety appeals the trial court’s judgment affirming the decision of an administrative law judge that the evidence was insufficient to authorize suspension of James Norris Kimbrough’s driver’s license. HOLDING: Reversed and remanded. In February 2002, Kimbrough was arrested for driving while intoxicated. Kimbrough failed three field sobriety tests and refused to take a breathalyzer test after receiving statutory warnings. As a result of his refusal to take a breathalyzer test, Kimbrough’s driver’s license was suspended. He requested an administrative hearing to contest the suspension. At the administrative hearing, DPS offered four exhibits: 1. the arresting officer’s sworn report notarized the day of the arrest; 2. the arresting officer’s supplemental eight-page sworn report; 3. another peace officer’s sworn report; and 4. copies of the statutory warnings that Kimbrough received. The ALJ admitted exhibits No. 1 and No. 4, but excluded exhibits No. 2 and No. 3 on the basis that they were not forwarded to DPS by the fifth business day after the arrest as required under Texas Transportation Code �724.032(c)(4). The ALJ then ruled that DPS did not prove reasonable suspicion to stop, or probable cause to arrest, Kimbrough. The ALJ found that “a citizen observed certain driving activity” by Kimbrough, but that it was “unclear what information was available to police officers at the time of the traffic stop.” The trial court affirmed the ALJ’s decision. DPS contends that the ALJ misapplied the law and abused her discretion by refusing to admit the contested exhibits at the administrative hearing because the five-day deadline of �724.032(c) had not been met. DPS contends that the deadline was directory, not mandatory. DPS further contends that the trial court erred by affirming the ALJ’s decision. The statute on which the ALJ based her ruling provides that, if a person refuses to take a breathalyzer test, the officer “shall forward to the department not later than the fifth business day after the date of the arrest . . . a copy of the refusal report.” �724.032(c)(4). Kimbrough argues that the ALJ did not abuse her discretion by excluding the contested exhibits because use of the word “shall” in the statute imposes a duty to act that the officers who filed the reports failed to comply with. Kimbrough asserts that, because the officers failed to act in accordance with this duty, the ALJ’s decision to exclude the reports was not arbitrary or capricious. Kimbrough further contends that DPS has not shown that its substantial rights were violated by the ALJ’s exclusionary ruling. The court generally construes the word “shall” as mandatory unless legislative intent suggests otherwise. Because it finds no legislative intent suggesting that the word “shall” as used in �724.032(c)(4) is to be construed in any manner other than mandatory, the court holds that the five-day forwarding requirement is mandatory. DPS’s mere failure to comply with this mandatory statutory deadline, however, does not result in a punitive sanction against DPS unless the statute provides for such a sanction. Therefore, the court must determine whether the Legislature intended to penalize DPS when an officer fails to forward a report within the mandatory five-day deadline by rendering the report inadmissible at an administrative hearing. Section 724.032 specifies no consequences for failure to forward the report on time, nor does it state that proof of compliance is a predicate to some other action. The statute’s language indicates that the five-day requirement is simply a housekeeping measure intended to benefit DPS by ensuring that the officer forwards the relevant information to “the department” to allow time to prepare for a hearing if the defendant should request one. Because the Legislature has expressed no intent that DPS be penalized for the failure of an officer to submit a report within the five-day deadline of �724.032(c)(4), the court holds that the failure of an officer to comply with the statute does not render the report inadmissible at an administrative hearing. It holds that the ALJ abused her discretion when she refused to admit DPS’s exhibits two and three into evidence at the hearing in this case on the ground that they were not forwarded by the officer to DPS within five days. It further holds that the erroneous exclusion of the exhibits prejudiced DPS’s substantial rights because the ALJ denied DPS the opportunity to meet its evidentiary burden at the license suspension hearing. Accordingly, the court sustains DPS’s issue on appeal, reverses the ALJ’s decision, and the trial court’s judgment affirming it, and remands the case to the ALJ for further proceedings. OPINION: Cayce, C.J.; Cayce, C.J., Dauphinot and Holman, JJ.

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