COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-098-CV
CITY OF FORT WORTH APPELLANT
V.
D.T. APPELLEE
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FROM THE 43RD DISTRICT COURT OF PARKER COUNTY
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OPINION
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I. INTRODUCTION
The only issue we address in this appeal is whether Appellant City of Fort
Worth possessed standing to bring a motion to set aside the trial court’s order
of expunction entered in favor of Appellee D.T. Fort Worth, D.T.’s employer,
was not listed in D.T.’s expunction petition as a law enforcement entity having
records or files subject to expunction, and accordingly, it received no notice of
the expunction proceedings. See Tex. Code Crim. Proc. Ann. art. 55.02,
§ 2(b)(8), (c) (Vernon Supp. 2004-05). After the trial court entered an
expunction order, Fort Worth filed a motion to set it aside, but the trial court
ruled that Fort Worth lacked standing. Because Fort Worth was not a party to
the expunction proceedings, is not bound by the expunction order’s mandate
to destroy records or to return them, and will not suffer, by virtue of the
expunction order, any peculiar injury not suffered by the public generally, we
hold that Fort Worth lacked standing to challenge the order of expunction. We
affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
D.T. is a corporal in the Fort Worth Police Department. On August 11,
2002, D.T. was arrested in Parker County and charged by information with
misdemeanor assault. The Parker County Attorney subsequently moved to
dismiss the misdemeanor complaint, citing insufficient evidence to proceed with
the trial and the fact that the complaining witness had requested that the cause
be dropped. D.T. then filed a petition seeking to expunge the dismissed
misdemeanor. D.T.’s petition for expunction listed numerous law enforcement
entities that D.T. had reason to believe possessed records subject to
expunction, but the petition did not list the City of Fort Worth as one of those
entities. The trial court conducted an evidentiary hearing and on January 22,
2004 granted D.T.’s petition for expunction.
2
In the meantime, as a result of D.T.’s arrest and the alleged offense, Fort
Worth suspended D.T. for 218 days without pay. 1 After the misdemeanor
complaint was dismissed, D.T. requested a hearing before an independent third-
party examiner in order to recover $45,000 in backpay and benefits resulting
from his suspension.2 At the backpay hearing before the examiner on February
3, 2004, D.T. attempted to introduce the expunction order into evidence, but
because Fort Worth claimed that it was previously unaware of the order, the
hearing officer postponed the hearing.3 The hearing officer in this separate
proceeding has not yet made any ruling concerning the admissibility of Fort
Worth’s files and records, specifically a January 14, 2003 letter from the Fort
Worth Chief of Police to the Firefighters’ and Police Officers’ Civil Service
Commission explaining the reasons for D.T.’s suspension.4
1
… See Tex. Loc. Gov’t Code Ann. § 143.056(a) (Vernon 1999).
2
… See id. § 143.056(e).
3
… The record before us—involving D.T.’s expunction—obviously contains
no reporter’s record from the February 3, 2004 hearing before the independent
third-party examiner and contains no documents from that hearing except to the
extent that documents were attached to Fort Worth’s motion to set aside
D.T.’s expunction.
4
… The crux of Fort Worth’s complaint on appeal concerns this letter.
Fort Worth argues that it needs this letter to justify its actions in D.T.’s backpay
hearing and that D.T. cannot cause this letter to be expunged absent notice to
Fort Worth of the expunction proceedings.
3
Fort W orth then filed with the trial court that issued D.T.’s expunction
order, in the same cause number, a motion and an amended motion to set aside
the order of expunction. Fort Worth claimed that it “did not receive reasonable
notice [of D.T.’s petition for expunction] prior to the expunction hearing as
required by [article 55.02, § 2(b)(8) of the Texas Code of Criminal Procedure].”
Fort Worth claimed that it was entitled to notice of the expunction hearing so
that it could show that D.T. was not entitled to an expunction of the
documents it possessed as D.T.’s employer. D.T. countered Fort Worth’s
motion to set aside by filing a plea in abatement averring that Fort Worth lacked
standing to assert the claims raised in its motion to set aside.
The trial court conducted a hearing on March 3, 2004, and it
subsequently entered a March 9, 2004 order finding that Fort W orth lacked
standing to bring its motion to set aside and dismissing that motion, therefore
granting D.T.’s plea in abatement. Fort Worth appeals the trial court’s order
finding that it lacks standing to bring its motion to set aside the expunction
order.
III. S TANDING
The issue of standing is a legal question that we review de novo. City of
Arlington v. Scalf, 117 S.W.3d 345, 347 (Tex. App.—Fort Worth 2003, pet.
denied). The test for standing requires that there be a real controversy between
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the parties that will actually be determined by the judicial declaration sought.
See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662
(Tex. 1996). To establish standing, one must show a justiciable interest by
alleging actual or imminent threat of injury peculiar to one's circumstances and
not suffered by the public generally. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 443-47 (Tex. 1993).
Fort Worth claims that it has standing to move to set aside D.T.’s
expunction order because it was entitled to notice of D.T.’s petition for
expunction pursuant to Texas Code of Criminal Procedure article 55.02, section
2(b)(8) and (c). Tex. Code Crim. Proc. Ann. art. 55.02, § 2(b)(8), (c). The
statutory provisions governing expunction procedures require that the petition
for expunction include
a list of all law enforcement agencies, jails or other detention
facilities, magistrates, courts, prosecuting attorneys, correctional
facilities, central state depositories of criminal records, and other
officials or agencies or other entities of this state or of any political
subdivision of this state and of all central federal depositories of
criminal records that the petitioner has reason to believe have
records or files that are subject to expunction.
Id. § 2(b)(8). Each official, agency, or entity listed in the petition is entitled to
reasonable notice of the expunction hearing by certified mail, return receipt
requested. Id. § 2(c); Tex. Dept. of Pub. Safety v. Deck, 954 S.W.2d 108,
112 (Tex. App.—San Antonio 1997, no pet.) (op. on reh’g) (holding law
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enforcement agencies listed in the expunction petition entitled to notice of
expunction hearing).
Once an expunction order is entered, every law enforcement official,
agency, or other entity listed in the expunction order holding records or files
concerning the expunged arrest is served with the expunction order and is
required to return all records and files subject to the expunction order or, if
removal is impracticable, to obliterate all portions of the record or file that
identify the person who is the subject of the order. Tex. Code Crim. Proc. Ann.
art. 55.02, §§ 3(c), 5(a). An entity that is not listed in the expunction petition,
and consequently is not listed in the expunction order, however, is not bound
by a court order to destroy records or to return them. Op. Tex. Att’y Gen. No.
LO-93-88 (1993) (opining that because “expungement order does not name the
Department of Protective and Regulatory Services . . . [it] is therefore not
required to comply with the article 55.02 requirement that officials and
agencies named in the order return records subject to the order to the court or
obliterate identifying information if it is impractical to return them”); see also
43B D IX & D AWSON, T EXAS P RACTICE: Criminal Practice & Procedure § 48.50
(2001) (“Agencies that were not served with notice of the expunction
proceedings are not bound by court order to destroy records.”). Although an
entity not listed in the petition is not required to destroy, return, or obliterate
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information from expunged records, such an entity is nonetheless prohibited
from releasing, disseminating, or using the expunged records and files for any
purpose. Tex. Code Crim. Proc. Ann. art. 55.03 (Vernon Supp. 2004-05).
We now turn to the issue of whether Fort Worth, via its motion to set
aside D.T.’s expunction order, established standing. Fort Worth’s motion to set
aside D.T.’s expunction order does not indicate that Fort Worth was a “law
enforcement agency” or purported “entity of this state” holding records subject
to expunction in that capacity. See Tex. Code Crim. Proc. Ann. art. 55.02,
§ 2(b)(8) (listing entities commonly maintaining arrest records). Fort Worth
does not argue that it obtained records or files relating to D.T.’s arrest because
it is a governmental entity. Instead, Fort Worth’s motion to set aside indicated
only that it possessed nonexpungable information concerning D.T.’s arrest in
its capacity as D.T.’s employer. Specifically, Fort Worth asserts that the
January 14, 2003 letter from the Fort Worth Chief of Police to the Firefighters’
and Police Officers’ Civil Service Commission explaining the reasons for D.T.’s
suspension should not be subject to expunction. As an employer and an entity
not listed in D.T.’s petition for expunction, however, Fort Worth is not required
to destroy or to obliterate any records pursuant to the expunction order. See
Op. Tex. Att’y Gen, No. LO-93-88. Because Fort Worth is not subject to the
expunction order’s provisions concerning destruction or obliteration of records
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or files regarding D.T.’s expunged arrest, no real controversy exists between
the parties; that is, D.T.’s expunction order does not harm Fort Worth by
requiring destruction or obliteration of any of Fort Worth’s records or files. See
Tex. Ass’n of Bus., 852 S.W.2d at 444 (explaining that allegation of actual or
imminent threat of some injury is required to establish standing).
We next examine whether the statutory provision that an entity, even one
not listed in the expunction petition or order, is nonetheless prohibited from
releasing, disseminating, or using the expunged records and files for any
purpose gives Fort Worth standing to contest D.T.’s expunction order. See
Tex. Code Crim. Proc. Ann. art. 55.03. Fort Worth claims that it needs the
January 14, 2003 letter from the Fort Worth Chief of Police to the Firefighters’
and Police Officers’ Civil Service Commission explaining the reasons for D.T.’s
suspension to defend against D.T.’s claim for backpay. 5 In a similar situation,
the Dallas Court of Appeals rejected the district attorney’s argument that
5
… The expunction statute authorizes expunction of “all records and files
relating to the arrest.” Tex. Code Crim. Proc. Ann. art. 55.01. The records and
files relating to an arrest generally consist of the indictment and the
photographs, fingerprints, and other matters comprising the arrest record and
records concerning the expunction proceeding. Carson v. State, 65 S.W.3d
774, 785 (Tex. App.—Fort Worth 2001, no pet.) (op. on reh’g). Records and
files unrelated to the expunged arrest are not subject to expunction. Tex. Code
Crim. Proc. Ann. art. 55.01. We do not reach the issue of whether the January
14, 2003 letter is a “record or file relating to the arrest.”
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records and files his office held should not be subject to expunction because
the district attorney’s office might need the records for use in a possible civil
action arising out of the expunged arrest. W.V. v. State, 669 S.W.2d 376,
378 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). The Dallas Court of Appeals
held,
[R]etention of the expunction files is not necessary to afford the
district attorney's office the protection from civil actions which it
seeks. The expunction statutes contemplate that, while the
indictment and arrest record may be returned to the petitioner, the
expunction file will be retained by the court subject to inspection
only by the petitioner. Article 55.02 § 5(c). If the petitioner
should file a civil action arising out of his arrest, he necessarily by
his own allegations makes the materials contained in the expunged
records, as well as the contents of the expunction file, a matter of
public record subject to discovery proceedings. This question was
presented to the superior court of New Jersey in Ulinsky v.
Avignone, 148 N.J.Super. 250, 372 A.2d 620 (1977), under an
expunction statute which denied access to anyone, including the
petitioner. The court there stated: "The remedy of expungment
was never intended as a device by which a plaintiff in a malicious
prosecution suit could control the availability of evidence relative
thereto." The court held that a refusal to consent to disclosure of
the record required dismissal of the civil action. We can perceive
of no reason under our expunction statutes that a Texas court
would not grant similar relief.
Id. at 379. Thus, under article 55.03 of the code of criminal procedure, Fort
Worth may release, disseminate, or use any of its records that are not classified
as “expunged records” to the same extent that the general public may release,
disseminate, or use records not classified as expunged records. See Tex. Code
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Crim. Proc. Ann. art. 55.03. Under article 55.03 of the code of criminal
procedure Fort Worth may release, disseminate, or use any of its records that
are classified as “expunged records” for the purpose of defending itself in a
proceeding arising out of the arrest to the same extent as any entity or member
of the general public in the same situation. Id.; accord W.V., 669 S.W.2d at
378. Consequently, Fort Worth has not shown or alleged any actual or
imminent threat of injury not suffered by the public generally. Tex. Ass’n of
Bus., 852 S.W.2d at 443-47. We hold that, here, Fort Worth does not possess
standing to challenge in the trial court the expunction order entered in favor of
D.T. We overrule Fort Worth’s sole issue.
IV. C ONCLUSION
Having overruled Fort Worth’s issue, we affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
DELIVERED: May 5, 2005
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