Opinion
No. 09-05-380 CV
Submitted on November 25, 2005.
Opinion Delivered January 26, 2006.
On Appeal from the 252nd District Court, Jefferson County, Texas, Trial Cause No. X-521.
Affirmed As Reformed.
Before GAULTNEY, KREGER, and HORTON, J.J.
MEMORANDUM OPINION
This appeal is from an order denying a petition for expunction of records filed by Derrick Eaglin. Eaglin filed his petition pro se requesting expunction of records relating to a charge of aggravated sexual assault which he contends was dismissed. Eaglin asserted that he meets the criteria required for expunction of records under article 55.01 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55 (Vernon Supp. 2005).
The State filed its answer contending that Eaglin failed to meet the criteria enumerated in Texas Code of Criminal Procedure article 55.01(a)(2) for expunction because he had been convicted of a felony in the five years preceding the date of the arrest. See Tex. Code. Crim. Proc. Ann. art. 55.01(a)(2)(C) (Vernon Supp. 2005). The State asserted that Eaglin pled guilty to felony theft less than five years before the aggravated sexual assault arrest, was ordered to pay a $1500.00 fine, and was placed on deferred adjudication probation for five years. Eaglin filed his response stating he received deferred adjudication probation for the theft charge and the charge did not result in a final conviction. Eaglin also filed a "Motion for Bench Warrant or In the Alternative Motion for Hearing by Teleconference." The trial court set a hearing on the matter but never expressly ruled on Eaglin's motion for bench warrant or telephone conference. The record does not include a transcript of the hearing. The trial court denied Eaglin's petition for expunction of records.
Eaglin argues on appeal that the trial court abused its discretion in failing to allow him the opportunity to participate in the hearing, depriving him of his right to due process of law, and denying his petition for expunction of records. The State argues that being placed on deferred adjudication community supervision under article 42.12 of the Texas Code of Criminal Procedure renders Eaglin ineligible for expunction of his arrest record. See Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon Supp. 2005); Tex. Code Crim. Proc. Ann. art. 55.01(2)(B) (Vernon Supp. 2005). Eaglin asserts the State has misinterpreted Article 55.01(2)(B). He contends that deferred adjudication only affects a petitioner's eligibility for expunction of records if the deferred adjudication relates to the arrest he is seeking to have expunged. Eaglin argues that because the deferred adjudication for the theft charge does not relate to the aggravated sexual assault charge he is seeking to have expunged, and because the deferred adjudication for the theft charge was not a "final conviction" but instead resulted in a dismissal of the charge, the theft does not preclude expunction of the records of the aggravated sexual assault charge. Eaglin claims he was unable to successfully offer evidence and clarify the State's misinterpretation because he was denied the opportunity to participate in some meaningful way in the hearing on his expunction proceeding.
Expunction is a statutory privilege. Quertermous v. State, 52 S.W.3d 862, 864 (Tex.App.-Fort Worth 2001, no pet.); Ex parte Myers, 24 S.W.3d 477, 480 (Tex.App.-Texarkana 2000, no pet.). The Code of Criminal Procedure permits a person to expunge a record of an arrest upon meeting certain requirements. See Tex. Code Crim. Proc. Ann. arts. 55.01, 55.02 (Vernon Supp. 2005). A person is entitled to an expunction if acquitted by the trial court, if convicted and subsequently pardoned, or if each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Id. at art. 55.01(a).
An expunction proceeding is civil in nature, and the petitioner has the burden of proving compliance with article 55.01 et seq. of the Texas Code of Criminal Procedure. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied). The trial court is required to set a hearing on a petition for expunction. Tex. Code Crim. Proc. Ann. art. 55.02 § (2)(c). The petitioner is entitled to expunction only when all of the statutory requirements have been met. Heine, 92 S.W.3d at 648.
Eaglin argues the court abused its discretion and deprived him of due process by not ruling on his motion for bench warrant. By proceeding with the hearing without allowing Eaglin to attend, however, the trial court implicitly denied Eaglin's "Motion for Bench Warrant or In the Alternative Motion for Hearing by Teleconference." See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) (By proceeding to trial without issuing a bench warrant, the trial court implicitly denied petitioner's request.); Heine, 92 S.W.3d at 649 n. 6 (By proceeding with hearing on petition for expunction without providing petitioner the opportunity to participate by conference call, the court implicitly overruled petitioner's motion for conference call.); Tex.R.App.P. 33.1(a)(2)(A).
Eaglin also contends he was denied due process because he was not allowed any means to argue his case for expunction at the hearing. Incarcerated individuals do not automatically lose access to the courts as a result of their incarcerated status. Ex parte Guajardo, 70 S.W.3d 202, 205 (Tex.App.-San Antonio 2001, no pet.). However, an inmate does not have an absolute right to personally appear. Id. It is within the trial court's discretion to determine whether an inmate may attend a court proceeding held in connection with an action initiated by the inmate. Brewer v. Taylor, 737 S.W.2d 421, 423 (Tex. App-Dallas 1987, no writ). In determining whether a personal appearance is warranted, "appellate courts have held that the trial court must balance, by considering various factors, the government's interest in protecting the integrity of the correctional system against the prisoner's right of access to the courts." Nance v. Nance, 904 S.W.2d 890, 892 (Tex.App.-Corpus Christi 1995, no writ). The factors that a trial court may consider are: the cost and inconvenience of transporting the inmate to court; the security risk and potential danger to the court and the public of allowing the inmate to attend court; whether the inmate's claims are substantial; whether a determination of the matter can reasonably be delayed until the inmate is released; whether the inmate can and will offer admissible, noncumulative testimony that cannot be offered effectively by deposition, telephone or otherwise; whether the inmate's presence is important in judging his demeanor and credibility compared with that of other witnesses; whether the trial is to the court or to a jury; and the inmate's probability of success on the merits. Guajardo, 70 S.W.3d at 205-06. The trial court may also consider whether the inmate is represented by counsel or is proceeding pro se. In re D.D.J., 136 S.W.3d 305, 312 (Tex.App.-Fort Worth 2004, no pet.).
We review a trial court's decision to grant or deny an inmate's bench warrant request under an abuse of discretion standard. In re B.R.G., 48 S.W.3d 812, 820 (Tex.App.-El Paso 2001, no pet.). This Court has said a trial court abuses its discretion in failing to issue a bench warrant to allow an inmate to appear in court without first considering and ruling upon the inmate's bench warrant request and evaluating alternative methods of participation in court proceedings. Byrd v. Att'y Gen. of Tex., 877 S.W.2d 566, 569 (Tex.App.-Beaumont 1994, no writ). The Supreme Court has restricted that holding to some extent. See In re Z.L.T., 124 S.W.3d at 166. In In re Z.L.T., the Supreme Court held that a trial court does not have a duty to go beyond the bench warrant request and independently inquire into the necessity of an inmate's appearance. Id. The burden is on the litigant to identify with sufficient specificity the grounds for the ruling he seeks. Id. (citing Tex. R. Civ. P. 21; Tex.R.App.P. 33.1(a)(1)(A)). "A litigant's status as an inmate does not alter that burden." Id. "[S]ince a prisoner has no absolute right to be present in a civil action, it follows that the prisoner requesting a bench warrant must justify the need for his presence." Id. (citing Pedraza v. Crossroads Sec. Sys., 960 S.W.2d 339, 342 (Tex.App.-Corpus Christi 1997, no pet.)).
Eaglin did not assert in his motion for bench warrant any argument to justify the need for his presence at the hearing, nor did he address the factors a court is to consider in determining whether a personal appearance is warranted. See Guajardo, 70 S.W.3d at 205-06; In re D.D.J., 136 S.W.3d at 312. Although Eaglin argued that the State misapplied article 55.01, Eaglin presented these arguments in pleadings other than his motion for bench warrant. Eaglin failed to make the required showing in his motion for bench warrant. See In re Z.L.T., 124 S.W.3d at 166.
Eaglin's contention that the State misinterpreted and misapplied article 55.01 was only asserted in his response to the State's opposition to expunction and not in his motion for bench warrant. His motion for bench warrant only asserts that his ability to communicate with the judge is "[i]mportant to the fair resolution of issues." Eaglin fails to make any argument in his motion for bench warrant justifying his presence or participation. The motion merely requested that he be allowed to participate in the hearing in some manner.
If a trial court decides a pro se inmate in a civil suit is not entitled to personally appear for a hearing, the court should consider alternative means by which the petitioner may offer evidence and participate when the petitioner explains the request. Under these circumstances, given the lack of explanation in the request, the trial court may have assumed the proof and arguments could be adequately submitted in writing. However, Eaglin did not offer any written proof with his petition to show that he had not been convicted of a felony in the five years preceding the date of the arrest, that his guilty plea concerning the theft charge resulted in deferred adjudication probation, that he satisfactorily completed the probation, and that the guilty plea ultimately resulted in dismissal after completion of the probation.
As the petitioner, it was Eaglin's burden to present sufficient pleadings to show that he was qualified to have his records expunged. See Heine, 92 S.W.3d at 646. Eaglin's petition lacks the required verification and identification of the agency that arrested him for aggravated sexual assault. See Tex. Code Crim. Proc. Ann. art. 55.02 § 2(b) (Vernon supp. 2005). Therefore, Eaglin's petition does not conform with the statutory requirements of a petition for expunction. See id. at art. 55.02. The order denying Eaglin's petition states that the court found that "the Petitioner is not entitled to expunction of any records and files that are the subject of this petition." Because Eaglin's petition was insufficient on its face, denial of the petition without prejudice would be proper. See generally Hughes v. Massey, 65 S.W.3d 743, 746 (Tex.App.-Beaumont 2001, no pet.) (Dismissal for failure to comply with procedural rules governing filing of inmate litigation is not a ruling on the merits, so it was error to dismiss the suit with prejudice.). We reform the order to make clear that the petition is denied without prejudice, and the order is affirmed as reformed.