Concrete company didn't check driver's driving, drug history: affidavit

Documents show more about the driving history of the concrete truck driver involved in a deadly school bus crash and how he was able to slip through the cracks. 

Jerry Hernandez has been charged with criminally negligent homicide for the March 22 crash involving a Hays CISD bus, which killed five-year-old Ulises Rodriguez Montoya and 33-year-old Ryan Wallace in another car. 

According to the arrest affidavit, at the hospital, Hernandez admitted to a trooper he smoked marijuana the night before and used cocaine in the early morning. He said he slept three hours at night and took a 15-minute nap in his truck before leaving a jobsite before the crash. He even fell asleep during the interview. 

The paperwork says he refused to provide a blood sample and told the trooper a car in front of him braked suddenly, but the trooper wrote that is not supported by witness statements or video. 

The affidavit says information from the federal Drug and Alcohol Clearinghouse meant he "should have been removed from performing safety sensitive functions by the company he was driving for at the time" in 2020. 


A follow-up test in 2022 was positive for marijuana, and one in 2023 was positive for cocaine.

Documents say his driver's status is prohibited, but "state driver's licensing agencies are not required to downgrade CDL statuses until 11/18/2024 according to changes in the Federal Register. For this reason, Mr. Hernandez's CDL status is still eligible in the Texas DL system."

Drew Gibbs, a personal injury attorney unaffiliated with the case, provided his analysis.

"States communicating with each other and the Federal Motor Carrier Safety Administration and communicating with the states, I imagine there can be some delay there. There can be delay within the Administration's reporting to the states, and does the Federal Register report that to the state of Texas? How fast does that occur? I don't know the answer to that. I imagine that there's variances there, but the employer themselves has an obligation to pull that information as well."

The paperwork says the owner of FJM Concrete did not verify the status of Hernandez's CDL or drug history before hiring him. 

"Generally speaking, they have regulations that are set up by the Federal Motor Carrier Safety Administration, and Federal Motor Carrier Safety regulations, many of which have been adopted by the state of Texas, which require employers to do a number of prescreening things that set up what's called a driver qualification file," Gibbs said. "The employers have an ongoing duty to continue to check that as the employee continues to work for them."

The U.S. Department of Transportation's Federal Motor Carrier Safety Administration declared Hernandez an "imminent hazard to public safety" and ordered him to stop driving any commercial motor vehicle for in-state or interstate commerce. The federal government says they're working with the state of Texas to disqualify his CDL.

FOX 7 Austin reached out to the owner of FJM Concrete, but has not heard back.