Ex Parte A. M.

                                 NUMBER 13-21-00050-CV

                                     COURT OF APPEALS

                        THIRTEENTH DISTRICT OF TEXAS

                           CORPUS CHRISTI – EDINBURG


                                            EX PARTE A.M.


                         On appeal from the 139th District Court
                               of Hidalgo County, Texas.



                              MEMORANDUM OPINION
                  Before Justices Longoria, Hinojosa, and Tijerina
                    Memorandum Opinion by Justice Hinojosa
       Appellant, the Texas Department of Public Safety (DPS), appeals the trial court’s

order granting appellee A.M.’s petition to expunge criminal records. 1 In two issues, DPS

argues that the trial court erred in granting A.M.’s petition because: (1) it did so without

notice or a hearing; and (2) A.M. did not meet his burden of proof to establish his

entitlement to relief. We reverse and remand.


       1   A.M. has not filed an appellee’s brief to assist in our resolution of this appeal.
                                          I.         BACKGROUND

       On September 17, 2020, A.M. filed a petition to expunge records of his arrest for

driving while intoxicated, which he contended were eligible for expunction under article

55.01(a)(2) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.

art. 55.01(a)(2). The trial court set a hearing on A.M.’s petition for January 14, 2021. DPS

filed its answer to the petition on January 11, generally denying A.M.’s allegations.

However, unbeknownst to DPS, the trial court signed an order granting expunction on

January 6, without notice or a hearing. 2 DPS now appeals.

                                               II.     NOTICE

A.     Standard of Review & Applicable Law

       “Expunction is a civil remedy governed by Article 55.01 of the Texas Code of

Criminal Procedure.” Ex parte R.P.G.P., 623 S.W.3d 313, 316 (Tex. 2021). “Because the

remedy is a privilege defined by the Legislature, and not a constitutional or common-law

right, the statutory requirements are mandatory and exclusive and cannot be equitably

expanded by the courts.” Id.; see Ex parte Vega, 510 S.W.3d 544, 548 (Tex. App.—

Corpus Christi–Edinburg 2016, no pet.). Generally, we review a trial court’s expunction

ruling for an abuse of discretion. Ex parte Green, 373 S.W.3d 111, 113 (Tex. App.—San

Antonio 2012, no pet.). However, to the extent an expunction ruling turns on a question

of law, we review the ruling de novo because a trial court has no discretion in determining

what the law is or in applying the law to the facts. Id. (citing Walker v. Packer, 827 S.W.2d

833, 840 (Tex. 1992)).


       2   The court reporter has filed a letter informing the Court that no hearing was held in this cause.

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         The trial court must strictly comply with the statutory procedures for expunction,

and it commits reversible error when it fails to do so. See Tex. Dep’t of Pub. Safety v.

Fredricks, 235 S.W.3d 275, 281 (Tex. App.—Corpus Christi–Edinburg 2007, no pet.)

(citing Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.—Waco 1997, pet. denied)). The

expunction statute explicitly requires the trial court to set a hearing and to give reasonable

notice to each official, agency, or government entity which was named in the petition

seeking an expunction of criminal records:

         The court shall set a hearing on the matter no sooner than thirty days from
         the filing of the petition and shall give to each official or agency or other
         governmental entity named in the petition reasonable notice of the hearing
         by: (1) certified mail, return receipt requested; or (2) secure electronic mail,
         electronic transmission, or facsimile transmission.

See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(c). “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.” Tex.

Dep’t of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.—San Antonio 1997, no

pet.).

B.       Analysis

         The trial court was required to provide notice to DPS of the hearing in this matter

because DPS is a named agency in A.M.’s petition. 3 The trial court provided notice to

DPS of a January 14 hearing, but it inexplicably granted A.M.’s petition on January 6,

without holding a hearing. We conclude that the trial court erred in granting A.M. relief

without affording DPS proper notice or an opportunity to be heard as required by the

         3The hearing need not be evidentiary in all instances, but proper notice must be provided to the
parties. See In re J.J.R., 599 S.W.3d 605, 614 (Tex. App.—El Paso 2020, no pet.).
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statutory scheme. See In re J.J.R., 599 S.W.3d 605, 614 (Tex. App.—El Paso 2020, no

pet.) (reversing the trial court’s expunction order where DPS did not receive notice of the

petition for expunction); Tex. Dep’t of Pub. Safety v. Soto, 285 S.W.3d 542, 544 (Tex.

App.—Corpus Christi–Edinburg 2009, no pet.) (reversing the trial court’s order granting

expunction where DPS did not receive notice of the hearing date); Deck, 954 S.W.2d at

112 (same). Because of our resolution of this issue, we do not reach DPS’s second issue,

which complains that A.M. did not carry his burden of proof. A.M., like DPS, should be

afforded an opportunity to present evidence regarding this matter. See In re J.J.R., 599

S.W.3d at 614 (“We therefore remand this case to the trial court to afford all parties herein

with an opportunity to set a hearing form which a record may be developed therefrom.”).

                                    III.   CONCLUSION

       We reverse the trial court’s order of expunction and remand the case for further

proceedings consistent with this memorandum opinion.


                                                                LETICIA HINOJOSA
                                                                Justice

Delivered and filed on the
31st day of August, 2021.




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