Opinion
No. 06-12-00088-CV
09-28-2012
In re: EXPUNCTION REQUEST BY TOMMY PERKINS, JR.
On Appeal from the 6th Judicial District Court
Lamar County, Texas
Trial Court No. 77363
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Tommy Perkins, Jr.'s, request for certain criminal record material to be expunged was denied February 4, 2009. Perkins' motion for the trial court to reconsider that denial was overruled August 2, 2012. Because Perkins' notice of appeal, filed August 30, 2012, is too late, we dismiss the appeal for want of jurisdiction.
The expunction statutes contain an express grant of the right to appellate review, "in the same manner as in other civil cases." TEX. CODE CRIM. PROC. ANN. art. 55.02, § 3(a) (West Supp. 2012). In civil appeals, appellate courts have jurisdiction only over appeals from final judgments and from specific types of interlocutory orders designated by the Legislature as appealable. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2012); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001).
The trial court's refusal to reconsider the denial of expungement is not a final judgment, but is in the nature of an order denying a motion for new trial. Such an order is not independently appealable. See, e.g., State Office of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 428 (Tex. App.—Corpus Christi 2011, no pet.); Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463, 464 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (ruling on motion to reconsider grant of special appearance was not independently appealable); Denton Cnty. v. Huther, 43 S.W.3d 665, 667 (Tex. App.—Fort Worth 2001, no pet.).
In order for Perkins' notice of appeal to be timely, it must have been filed within thirty days of the date on which the original denial was signed—thus, the deadline was March 6, 2009. See TEX. R. APP. P. 26.1. Without a timely notice of appeal, we have no jurisdiction to consider the case.
We contacted Perkins by letter and provided him with this information and opportunity to show this Court how it has jurisdiction over his appeal, and warning him that, unless we received an adequate explanation, we would be required to dismiss his appeal. Perkins has responded by letter.
In his response, Perkins refers this Court to our rulings on his two prior petitions seeking mandamus—to require the district judge to rule on his petition for expunction. At that point, the only information provided this Court from any source indicated that his 2008 petition for expunction had never been ruled on—Perkins relied on a docket entry showing that the former judge of the trial court (Judge Lovett) had passed the petition. While Perkins' petition for mandamus was pending in this Court, the current trial judge (Judge Clifford) denied Perkins' motion to reconsider the predecessor judge's refusal to decide his expunction petition. The trial court had ruled, and we therefore denied the petition for writ of mandamus as moot.
Now Perkins has brought a direct appeal from the order denying reconsideration. And, with a complete record now before us, it can be plainly seen that the 2009 original order denying expunction is too stale to be appealed now, while the 2012 order denying reconsideration is not the type of order that is appealable. Because this appeal was brought too late, we have no jurisdiction to hear the appeal. TEX. R. APP. P. 26.1.
We dismiss this appeal for want of jurisdiction.
Josh R. Morriss, III
Chief Justice