In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-07-00105-CV
______________________________
EX PARTE: ROBERT LOCKE
On Appeal from the 5th Judicial District Court
Bowie County, Texas
Trial Court No. 07C0325-005
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
On March 8, 2007, Robert Locke filed a petition for expunction of all records and files relating to an alleged May 2002 offense of assault/family violence which occurred in Bowie County. The expunction was granted March 12, 2007.
The Texas Department of Public Safety (DPS) brings this restricted appeal of that order of expunction. Locke filed no responsive brief.
A certificate of service on Locke's petition indicated that service of the petition on the office of the Bowie County District Attorney had been effected on February 26, 2007. The petition, although indicating that eight different offices or entities (including the DPS) had a record of the criminal offense for which expunction was being sought, the only entity upon which any service of notice of filing is recited is the Bowie County District Attorney. Four days after the petition was filed, on March 12, 2007, the court entered the requested order of expunction. The order of expunction reflected at its base that it had been approved by the Bowie County District Attorney's Office. On September 10, 2007, the DPS brought its restricted appeal, asserting that the court abused its discretion in having set a hearing prematurely and without notice to all respondents entitled to notice of the proceedings.
An appellant attacking a judgment by a restricted appeal
must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record.
Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see also Tex. R. App. P. 26.1(c), 30.
In bringing its restricted appeal within six months of judgment, the DPS met the first of the requirements for a restricted appeal. The DPS also satisfies the second requirement; the DPS is a "party" to Locke's expunction suit within the meaning of that term in the requirements for a restricted appeal. See Tex. Dep't of Pub. Safety v. Moore, 51 S.W.3d 355, 357 (Tex. App.--Tyler 2001, no pet.); cf. Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) (Vernon Supp. 2007) ("an agency protesting the expunction may appeal the court's decision in the same manner as in other civil cases"). The DPS likewise has met the third requirement; the record indicates that the DPS neither participated in the hearing that resulted in judgment nor did it file timely post-judgment motions. See Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 111 (Tex. App.--San Antonio 1997, no pet.) (district attorney's office's participation in an expunction does not constitute the participation of the DPS). These first three of the four requirements having been satisfied, we need to determine whether the restricted appeal meets the fourth requirement: that the error is apparent on the face of the record.
The DPS asserts error in the trial court's abuse of discretion in having set a hearing on the petition for expunction only four days after the filing of the petition and prior to having provided notice to all respondents of the hearing on the petition. Further, there is no indication in the record that any agency (including the district attorney's office) received notice of the hearing.
"The right to expunction of criminal records is a creature of statute and the Texas Code of Criminal Procedure governs the process." Moore, 51 S.W.3d at 357. The Code provides that the court shall set the hearing for expunction no sooner than thirty days from the filing of the petition. See Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c) (Vernon Supp. 2007). The Code further requires the court to give reasonable notice of the hearing to each agency named in the expunction petition. Id. "The procedures listed in article 55.02 are mandatory and must be complied with in an expunction proceeding. If the record does not indicate that the agency was notified in accordance with the statute, then the record reflects a proceeding in violation of the statute and the expunction order must be set aside." Deck, 954 S.W.2d at 112 (citations omitted).
This case is very similar to Texas Department of Public Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.--San Antonio 1989, no writ), in which an expunction ordered on the same day the petition was filed, and entered without prior notice to the DPS of the hearing was found to be a proceeding in direct violation of the statute. In this case, the record reflects that the trial court complied with neither the requirement that the agencies named in the petition be notified before a hearing nor with the requirement of the thirty-day waiting period before a hearing as contained in the statute. We find that the face of the record here reflects error in the failure to follow each of these statutory requirements.
The DPS seeks neither to have the order set aside nor to have judgment rendered in its favor but seeks, rather, a remand of the case for a properly-conducted proceeding. Accordingly, we reverse the order of expunction in its entirety, (1) and remand the case for further proceedings consistent with Article 55.02 and with this opinion.
Bailey C. Moseley
Justice
Date Submitted: February 12, 2008
Date Decided: March 28, 2008
1. Reversal of an expunction order "must encompass all persons and agencies in possession of relevant criminal records." Ex Parte Elliot, 815 S.W.2d 251, 251 (Tex. 1991).
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In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-11-00097-CV
______________________________
HOSPICE OF TEXARKANA, INC.,
AND TEXAS WORKFORCE COMMISSION, Appellants
V.
DENETIA L. CONNELL, Appellee
On Appeal from the County Court at Law
Bowie County, Texas
Trial Court No. 10C0816-CCL
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Appellants, Hospice of Texarkana, Inc., and Texarkana Workforce Commission, and appellee, Denetia L. Connell, have filed with this Court a Rule 42 Agreement for Reversal and Rendition of Trial Courts Judgment. The parties represent to this Court that they have agreed that the trial courts judgment should be reversed with a finding that substantial evidence supports the decision of the Texas Workforce Commission disqualifying Connell from receiving unemployment benefits and that this Court should render judgment affirming the Texas Workforce Commissions administrative decision disqualifying Connell from receiving unemployment benefits.
This Court, in accordance with Rule 42.1(a)(2)(A) approves the agreement of the parties. We grant the motion and reverse the judgment of the trial court and render judgment in accord with the parties agreement. Tex. R. App. P. 42.1(a)(2)(A).
Jack Carter
Justice
Date Submitted: October 27, 2011
Date Decided: October 28, 2011