Meyers, J., delivered a dissenting opinion in which Johnson, J., joined.

In other contexts we have acknowledged the confusion and difficulty engendered when we have used the same term to apply to different situations. See Leday v. State, 983 S.W.2d 713, 715-16 (Tex. Crim. App. 1998). Our casual use of the term “collateral estoppel,” without fully explaining whether we are referring to constitutional double jeopardy protections or simply to common-law principles, has led to just this sort of dilemma. I write separately to acknowledge this ambiguity in our case law and because the majority’s opinion, in its haste to defend its “parties” analysis set forth in State v. Brabson, 976 S.W.2d 182 (Tex. Crim. App. 1998), further clutters the area of collateral estoppel by reaching issues unnecessary to the resolution of this case.

The parties, and the Court of Appeals, have glossed over the preliminary issue that ought to be addressed in all cases in which a claim of “collateral estoppel” is raised. That is, what type of collateral estoppel is at issue. Does appellant seek application of the constitutional doctrine of collateral estoppel inherent in either the Double Jeopardy Clause or, arguably, within another constitutional provision such as the Due Process Clause, or does he rely on common-law principles. On the one hand, the Court of Appeals’ lead opinion rested exclusively on this Court’s recent decision in State v. Brabson, supra, in holding that the State was “not collaterally estopped from relitigating the issue of reasonable suspicion to stop at the suppression hearing in the criminal prosecution.” Reynolds v. State, 967 S.W.2d 493, 494 (Tex. App.—Houston [1^st Dist.] 1998). The Brabson case, of course, expressly stated that it was decided on common-law principles. Brabson, 966 S.W.2d at 183. Nevertheless, both Justice Wilson’s concurring opinion and Justice Cohen’s dissenting opinion based their conclusions on double jeopardy grounds. See Reynolds, 967 S.W.2d at 495 (Wilson, J., concurring) (arguing that probable cause is not an “issue of ultimate fact” so as to merit constitutional protection); Id. at 496-97 (Cohen, J., dissenting) (questioning whether legislature invaded province of judiciary when it provided that findings of administrative law judge would not preclude a criminal prosecution and arguing that Brabson’s “parties” analysis was suspect under constitutional double jeopardy precedent).

For his part, appellant argues, through his reliance on State v. Aguilar, 947 S.W.2d 257 (Tex. Crim. App. 1997), that the constitutional protections of the Double Jeopardy Clause apply to this case. We should not address this issue in the first instance. Instead, the Court of Appeals should be given the first opportunity to examine whether the Double Jeopardy Clause is implicated in this case. This preliminary issue has been consistently overlooked in this context, consequently leading to the impression that the analytical principles of constitutional collateral estoppel and of common-law collateral estoppel are indistinct. These doctrines, however, should be subject to separate modes of analysis. Therefore, the judgment of the Court of Appeals should be vacated and the case remanded so that it may first address what type of collateral estoppel is presented here and the merits as to that type. If appellant has presented a question of constitutional collateral estoppel, the Court of Appeals must resolve whether jeopardy attached at appellant’s initial administrative license revocation hearing. As the following discussion indicates, only if the Court of Appeals answers that question in the affirmative may appellant take advantage of the doctrine of constitutional collateral estoppel.

Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970). Although originally fashioned as a means to conserve judicial resources in civil litigation, the doctrine of collateral estoppel has been applied in its common-law form to federal criminal cases since the early part of this century. See United States v. Oppenheimer, 242 U.S. 85, 37 S. Ct. 68, 61 L. Ed. 2d 161 (1916) (applying res judicata for first time in federal criminal case).¹ When applied in a criminal case, collateral estoppel may bar the State from litigating a factual issue in a criminal prosecution when it already received an adverse ruling on the same issue in a previous judgment. See, e.g., Ex parte Tarver, 725 S.W.2d 195, 200 (Tex. Crim. App. 1986) (holding State was barred by collateral estoppel from litigating fact issues in criminal prosecution found adversely to it in previous probation revocation proceeding).

Fifty-four years after the Oppenheimer decision, the United States Supreme Court first held that the rule of collateral estoppel “is embodied in the Fifth Amendment guarantee against double jeopardy.” Ashe, 397 U.S. at 445-46, 90 S. Ct. 1189, 1195. In Ashe, three or four armed, masked perpetrators broke into a home and robbed six men who were playing poker. Id., 397 U.S. at 437-39, 90 S. Ct. at 1191-92. The defendant was acquitted at his first trial for the robbery of one of the victims, but was subsequently convicted in a second trial for the robbery of another poker player. Id. At both trials, the evidence that an armed robbery had occurred was “unassailable” and the Supreme Court determined that the “single rationally conceivable issue in dispute before the jury was whether the [defendant] had been one of the robbers.” Id., 397 U.S. at 438 & 445, 90 S. Ct. at 1192 & 1195. In reversing the defendant’s conviction, the Court held that the State was prohibited by the Double Jeopardy Clause from litigating the issue of identity at the second trial after it had obtained a previous judgment acquitting the defendant based on that same issue. Id., 397 U.S. at 445, 90 S. Ct. At 1195. The Court concluded that, whatever else it may do, the Fifth Amendment guarantee against double jeopardy “surely protects a man who has been acquitted from having to ‘run the gantlet [sic]’ a second time.” Id., 397 U.S. at 446, 90 S. Ct. at 1195 (quoting Green v. United States, 355 U.S. 184, 190, 78 S. Ct. 221, 225, 2 L. Ed. 2d 199 (1959)).

For our purposes, Ashe is significant for at least two reasons. First, the Ashe decision was the first to constitutionalize collateral estoppel principles. As an “ingredient” of the Double Jeopardy Clause, constitutional collateral estoppel is fully applicable to the states through the Due Process Clause of the Fourteenth Amendment. Ashe, 397 U.S. at 442-43, 90 S. Ct. at 1193-94 (citing Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L Ed. 2d 707 (1969)). Second, Ashe suggests that collateral estoppel has no independent constitutional basis outside the scope of the Double Jeopardy Clause. Ashe, 397 U.S. at 445, n. 10, 90 S. Ct. At 1195, n.10 (indicating constitutional collateral estoppel only applies insofar as necessary to safeguard against “the potential for unfair and abusive reprosecutions”); see also Showery v. Samaniego, 814 F.2d 200, 203 (5^th Cir. 1987) (interpreting Ashe as foreclosing any due process basis for collateral estoppel independent of Double Jeopardy Clause). In reaching its conclusion, the Ashe Court was confronted with its previous decision in Hoag v. New Jersey, 356 U.S. 464, 78 S. Ct. 829, 2 L. Ed. 2d 913 (1958), in which it analyzed almost identical facts under Fourteenth Amendment substantive due process. Although Hoag did not reach the collateral estoppel issue, the Court there expressed “grave doubts whether collateral estoppel can be regarded as a constitutional requirement.” Hoag, 356 U.S. at 471, 78 S. Ct. at 829. Justifying the different result reached in Ashe, the Court explained that it had since decided Benton v. Maryland, supra, which applied the Double Jeopardy Clause to the states and consequently lifted the Court’s analysis out of a strictly due process paradigm. Ashe, 397 U.S. at 442, 90 S. Ct. At 1193-94 (“The question is no longer whether collateral estoppel is a requirement of due process, but whether it is a part of the Fifth Amendment’s guarantee against double jeopardy”). It therefore seems clear that the constitutional protections of collateral estoppel are coterminous with the Fifth Amendment’s Double Jeopardy Clause.²

If there is no independent constitutional basis for collateral estoppel outside of the Double Jeopardy Clause, the next step is to determine whether a claim of collateral estoppel falls within the scope of the Clause. The Fifth Amendment to the Constitution of the United States provides, in relevant part: “nor shall any person be subject for the same offence to be twice put in jeopardy of life and limb. . . .” It is axiomatic that the Double Jeopardy Clause only applies in situations where an individual is placed in jeopardy twice.³ But it has not always been equally as apparent exactly what being placed in “jeopardy” might entail so as to trigger the protections of the constitutional provision. Nevertheless, the attachment of “jeopardy” is predicate to any constitutional analysis involving multiple prosecutions:

It is true that we have disparaged ‘rigid, mechanical’ rules in the interpretation of the Double Jeopardy Clause. However, we also observed in [Illinois v. Somerville, 410 U.S. 458, 467, 93 S. Ct. 1066, 1072, 35 L. Ed. 2d 425 (1973)] that ‘the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.’ Implicit in the latter statement is the premise that the ‘constitutional policies underpinning the Fifth Amendment’s guarantee’ are not implicated before that point in the proceedings at which ‘jeopardy attaches.’

Serfass v. United States, 420 U.S. 377, 390-91, 95 S. Ct. 1055, 1064, 43 L. Ed. 2d 265 (1975) (citations omitted); see also Ex parte Robinson, 641 S.W.2d 552, 556 (Tex. Crim. App. 1982) (“Insofar as the doctrine of collateral estoppel on which [the defendant] relies is but a corollary of the Double Jeopardy Clause, the fact that he has not been put in jeopardy has significance”). Therefore principles of constitutional collateral estoppel will only apply to the case at bar if jeopardy attached to the initial administrative license revocation hearing.

To invoke double jeopardy protection, the initial proceeding involved need not necessarily be a criminal “prosecution,” but it must be “essentially criminal” in nature. Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 1785, 44 L. Ed. 2d 346 (1975) (citing Helvering v. Mitchell, 303 U.S. 391, 398, 58 S. Ct. 630, 632, 82 L. Ed. 917 (1938)). This Court has yet to fully analyze whether jeopardy attaches at an administrative license revocation (“ALR”) hearing.⁴ See, e.g., State v. Aguilar, 947 S.W.2d 257, 259-60 (Tex. Crim. App. 1997) (analyzing application of collateral estoppel, purportedly in constitutional context, without initially determining whether jeopardy attached at ALR proceeding); State v. Brabson, 976 S.W.2d 182, 183 n.2 (Tex. Crim. App. 1998) (concluding, without discussion, that only common-law collateral estoppel applied in ALR hearing). Nevertheless, as the preceding review of Supreme Court cases indicates, constitutional principles of collateral estoppel would only be triggered if jeopardy attached at the ALR hearing.

The constitutional principles announced in Ashe did not entirely swallow the common-law rule. In fact, when the protections of the Double Jeopardy Clause do not apply to a given case, a criminal defendant may still attempt to avail himself of the common-law doctrine of collateral estoppel. Texas courts have adopted the common-law doctrine and have applied it in criminal contexts outside of those where “jeopardy” might attach, albeit those common-law principles do not rise to the level of a constitutional imperative. See Ex parte Tarver, 725 S.W.2d 195 (Tex. Crim. App. 1986); State v. Brabson, 976 S.W.2d 182, 183 (Tex. Crim. App. 1998).⁵

There is some controversy, however, over whether Tarver should be interpreted as construing the Double Jeopardy Clause of the Fifth Amendment or merely as applying common- law collateral estoppel to a criminal case. See, e.g., State v. Smiley, 943 S.W.2d 156 (Tex. App. —Amarillo 1997, no pet.) (per curiam) (yielding three separate opinions interpreting Tarver). In Tarver we held that the State was collaterally estopped from litigating a fact issue in a criminal prosecution after it had received an adverse judgment on the same issue in a previous probation revocation hearing. Tarver, 725 S.W.2d at 200. Tarver was, admittedly, somewhat ambiguous as to whether it was applying constitutional principles of collateral estoppel or applying the common-law doctrine in the criminal context. For instance, we initially appeared to reject Tarver’s double jeopardy claim by concluding that he was faced with neither successive prosecutions nor successive punishments. Id. at 197. As explained above, this conclusion should have been fatal to any double jeopardy challenge. The Court then went on to apply the “corollary doctrine of collateral estoppel.” Id. at 197-200. In so doing, it seemed to revive the constitutional issue by incorporating fragments of the Supreme Court’s double jeopardy jurisprudence. See id. at 198-99 (citing Breed, supra, for the proposition that collateral estoppel may apply even when the previous proceeding is deemed “civil” by the legislature, and applying parts of the Ashe test). In making its conclusion the Tarver Court also stated:

To allow such a second attempt [at proving facts necessary to a finding of guilt] would lead to one of the risks the Double Jeopardy clauses [sic] protects against: “The Double Jeopardy Clause also precludes the prosecutor from ‘enhanc[ing] the risk that an innocent defendant may be convicted,’ by taking the question of guilt to a series of persons or groups empowered to make binding determinations.”

Id. at 200 (quoting Swisher v. Brady, 438 U.S. 204, 216, 98 S. Ct. 2699, 2707, 57 L. Ed. 2d 705 (1978)).⁶ Each of these points of analysis initially suggest that Tarver based its conclusion on the Double Jeopardy Clause.

Nevertheless, there are at least three reasons to instead interpret Tarver as construing the common-law doctrine of collateral estoppel.⁷ First, subsequent cases have not tended to read Tarver as a constitutional opinion. See, e.g., Ex parte Byrd, 752 S.W.2d 559, 562 (Tex. Crim. App. 1988) (stating Tarver did not conflict with one of this Court’s previous decisions that held that Double Jeopardy Clause did not prevent second attempt to revoke probation based upon facts found “not true” at previous revocation hearing); Brabson, 976 S.W.2d at 183 (citing Tarver as adopting common-law doctrine of collateral estoppel); State v. Nash, 817 S.W.2d 837, 840-41 (Tex. App.—Amarillo 1991, pet. ref’d) (same); Manning v. State, 870 S.W.2d 200, 203 (Tex. App.—Eastland 1994, pet. ref’d) (same); Ex parte Pipkin, 935 S.W.2d 213, 215-16 (Tex. App.—Amarillo 1996, no pet.) (same); Ex parte Serna, 957 S.W.2d 598, 601-02 (Tex. App.—Fort Worth 1997, no pet.) (same); Ex parte Gregerman, 974 S.W.2d 800, 803 (Tex. App.—Houston [14^th Dist.] 1998, no pet.) (same); State v. Ayala, 981 S.W.2d 474, 477 n. 3 (Tex. App.—El Paso 1998, pet. ref’d) (same); Showery v. Samaniego, 814 F.2d 200, 204 (5^th Cir. 1987) (indicating Tarver’s protections not rooted in federal constitution); Stringer v. Williams, 161 F.3d 259, 263 (5^th Cir. 1998) (stating Tarver’s holding was based on state, rather than federal law); but see State v. Aguilar, 947 S.W.2d 257, 259 (Tex. Crim. App. 1997) (citing Tarver as constitutional authority).

Second, and more importantly, the reasoning of the Tarver opinion itself is most viable when viewed as applying common-law principles. As discussed above, the Tarver Court’s initial findings that the defendant was subject neither to multiple prosecutions nor multiple punishments precluded the application of the Double Jeopardy Clause. Also, Tarver relied heavily on federal common-law precedent, rather than double jeopardy jurisprudence, in crafting its test for “administrative” collateral estoppel. For instance, Tarver cited 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), for the proposition that simply because a prior hearing is “administrative” does not necessarily foreclose the application of collateral estoppel. Tarver, 725 S.W.2d at 199. Utah Construction had nothing to do with the Double Jeopardy Clause or the criminal law. Rather, that case applied common-law principles to a civil breach of contract action between the Atomic Energy Commission and a private contractor. Utah Construction, 384 U.S. at 400-01, 86 S. Ct. at 1549. Moreover, although Utah Construction is cited in the paragraph immediately following our discussion of Breed, we never sought to determine whether the probation revocation hearing was “essentially criminal” so as to satisfy Breed’s requirements for the application of the Double Jeopardy Clause. See Tarver, 725 S.W.2d at 198-200.

Finally, Tarver cited various cases from federal courts which applied common-law collateral estoppel to federal criminal cases where jeopardy had not attached. For instance, in footnote 3 of its opinion, the Tarver Court cited One Lot Emerald Cut Stones and One Ring v. United States, 409 U.S. 232, 233-34, 93 S. Ct. 489, 491, 34 L. Ed. 2d 438 (1972), for the proposition that “one need not be twice placed in jeopardy of criminal punishment in order for collateral estoppel to apply.” Tarver, 725 S.W.2d at 197 n.3. That Supreme Court case clearly speaks of federal common-law principles. See One Lot Emerald Cut Stones, 409 U.S. at 234-36, 93 S. Ct. at 491-93 (rejecting collateral estoppel claim independent of constitutional double jeopardy claim). For these reasons, Tarver is more soundly interpreted as construing common- law, rather than constitutional collateral estoppel.⁸

Perhaps recognizing Tarver’s viability, the Legislature has changed the common-law as applied to ALR hearings. Specifically, the applicable portion of the Transportation Code, effective September 1, 1995, provides:

(a) The determination of the department or administrative law judge:
(1) is a civil matter;
(2) is independent of and is not an estoppel as to any matter in issue in an adjudication of a criminal charge arising from the occurrence that is the basis for the suspension or denial; and
(3) does not preclude litigation of the same or similar facts in a criminal prosecution.

Tex. Transp. Code Ann. § 724.048(a) (Vernon 1999).⁹ Although we may presume that collateral estoppel may apply where the legislature has not provided otherwise, that presumption is overcome where the Legislature states precisely that collateral estoppel shall not be applied in a given statutory scheme. See Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108-09, 111 S. Ct. 2166, 2169-70, 115 L. Ed. 2d 96 (1991). Here the Texas Legislature has stated in the clearest terms that the presumption in favor of the application of common-law collateral estoppel is not to be applied to the findings made at an ALR hearing. Therefore, if on remand the Court of Appeals determines that constitutional collateral estoppel is not applicable to findings made at an ALR hearing, appellant may not take refuge in the common-law doctrine.

The Court of Appeals did not reach the question of whether jeopardy attached at appellant’s initial ALR hearing. In fact, the lead opinion of the Court of Appeals did not touch at all on appellant’s double jeopardy claim. Because this issue was not addressed in the appellate court, the judgment of the Court of Appeals should be vacated and the case remanded so that it may examine in the first instance whether a claim of constitutional collateral estoppel is raised and, if so, whether it applies in this case. Because the majority instead elects to reach the constitutional issues itself, I dissent.

MEYERS, J. Date Delivered: September 15, 1999
¹ In response to the government’s argument in Oppenheimer that the doctrine of res judicata did not exist for criminal cases except as embodied in the Fifth Amendment, Justice Holmes remarked, “It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt.” Oppenheimer, 242 U.S. at 87, 37 S. Ct. at 69.
² There are some who argue that there may be an independent basis for collateral estoppel in the Due Process Clause. See, e.g., Showery, 814 F.2d at 204 (Goldberg, J., dissenting) (“In deciding that collateral estoppel was constitutionally required under the Double Jeopardy Clause. . . the Supreme Court did not foreclose the possibility that collateral estoppel might also be constitutionally required in a criminal context as a ‘fundamental principle of ordered liberty’ or as a principle of ‘fundamental fairness’”); Note, The Due Process Roots of Criminal Collateral Estoppel, 109 Harv. L. Rev. 1729, 1740-45 (1996).
³ The Double Jeopardy Clause protects against three distinct abuses: a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 2076, 23 L. Ed. 2d 656 (1969). Appellant’s collateral estoppel claim must lie, if at all, among the first of these three protections. See Ashe, 397 U.S. at 446, 90 S. Ct. at 1195 (noting Ashe had been acquitted based on same issue subsequently relitigated).
⁴ This Court has held that the revocation of a defendant’s drivers license does not constitute “punishment” for double jeopardy purposes so as to preclude a subsequent DWI prosecution. Tharp, 935 S.W.2d at 161; see also Voisinet v. State, 935 S.W.2d 424 (Tex. Crim. App. 1996). Tharp, however, is not dispositive as to whether jeopardy attached at the ALR hearing. That opinion dealt with the double jeopardy issue in the context of multiple “punishments”, Tharp, 935 S.W.2d at 159, whereas here we are concerned with multiple “prosecutions.” See infra p. 6 n. 3. Specifically, Tharp involved a situation where the defendant actually had his license revoked and then was subjected to a subsequent criminal trial. Appellant, on the other hand, did not have his license revoked pursuant to a favorable finding by the administrative law judge. He now seeks to have collateral estoppel applied based on those findings.
⁵ The majority today reaffirms Brabson as valid precedent. Ante at __, (slip op. at 4-5). But the majority’s reasoning on this point is somewhat disingenuous. In one breath it reaffirms Brabson, ante, at __ (slip op. at 4),which was expressly based on common-law principles, and then expends a great deal of energy attacking the application of “civil” collateral estoppel to criminal cases. Ante, at __ (slip op. at 9-13). Admittedly, common-law collateral estoppel may at first seem to be a strange animal when applied in a criminal case inasmuch as the doctrine seems to run as a “one-way street” in favor of the defendant. See ante, at __ (slip op. at 11). But I am not as troubled as the majority seems to be that the defendant’s constitutional rights — including the rights to jury trial, confrontation and due process — may force some modifications of the doctrine in the criminal context.
⁶ The majority’s position seems to be that Tarver’s citation to one of the purposes underlying the Double Jeopardy Clause provides conclusive proof that it is a constitutional opinion. See ante, at __ (slip op. at 18-20). But the same cited policy of preventing a party from taking a fact issue to multiple factfinders also underlies the common-law doctrine of collateral estoppel.
⁷ In Brabson, this Court cited Tarver as adopting “for criminal cases the federal common- law doctrine of ‘administrative collateral estoppel.’” Brabson, 976 S.W.2d at 183. The majority now cites Tarver as applying constitutional double jeopardy principles rather than common-law collateral estoppel. Ante, at __ (slip op. at 19 n. 18). This change of position, which comes with no explanation, is at odds with our subsequent case law and the reasoning of Tarver itself. Transforming Tarver into a constitutional opinion renders it more vulnerable to question given its relatively weak constitutional underpinnings. I do not wish to be associated with this effort to destabilize Tarver’s jurisprudential foundation. In my view, Tarver presents the most authoritative word on administrative collateral estoppel in Texas criminal law.
⁸ This interpretation of Tarver is also consistent with our previous holdings indicating that the nature of probation revocation hearings do not implicate the Double Jeopardy Clause. See Davenport v. State, 574 S.W.2d 73 (Tex. Crim. App. 1978); Chambers v. State, 700 S.W.2d 597 (Tex. Crim. App. 1985).
⁹ Of course, this provision has no effect on any claim of constitutional collateral estoppel. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803).