Opinion
No. 04-07-00257-CV
Delivered and Filed: February 13, 2008.
Appealed from the 111th Judicial District Court, Webb County, Texas, Trial Court No. 2006-CVK-000909-D2, Honorable Raul Vasquez, Judge Presiding.
REVERSED AND RENDERED.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
This is a restricted appeal from the trial court's order expunging appellee's arrest from his criminal record. Because we conclude appellant did not receive proper notice of the expunction hearing, we set aside the expunction order.
STANDARD OF REVIEW
To obtain relief through a restricted appeal, the Department of Public Safety ("the DPS") must establish that: (1) it filed a notice of restricted appeal within six months after the expunction order was signed; (2) it was a party to the underlying suit; (3) it did not participate in the hearing that resulted in the expunction order and did not timely file any post-judgment 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). Here, the only issue we consider is whether error is apparent on the face of the record.
DISCUSSION
A trial court shall set a hearing on a request for an expunction "no sooner than thirty days from the filing of the petition and shall give to each official or agency or other entity named in the petition reasonable notice of the hearing by: (1) certified mail, return receipt requested; or (2) if requested in writing by the petitioner, secure electronic mail or facsimile transmission." Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c) (Vernon Supp. 2007-2008). The DPS does not dispute that it received notice of the initial hearing on appellee's petition for expunction of records. However, the trial court granted appellee's motion for a continuance and reset the hearing to another date. On appeal, the DPS contends it did not receive notice of the reset date, in violation of article 55.02, section2(c).
The procedures listed in article 55.02 are mandatory and must be complied with in an expunction proceeding. Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex.App.-San Antonio 1997, no pet.). Because an expunction hearing is a civil proceeding, each law enforcement agency cited is entitled to represent itself. Id. at 111. Accordingly, if the record does not indicate that an 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. Id. at 112. Here, the DPS was a law enforcement agency named in appellee's petition. Although the DPS had notice of the initial setting of the expunction hearing, nothing in the record indicates the DPS received notice of the reset hearing date. Also, nothing in the record reflects that the DPS waived the notice requirement. In Deck, a panel of this court addressed the same issues under the same set of facts as presented here. Following this court's reasoning in Deck, we conclude that because error is apparent on the face of the record, the trial court erred in ordering the records expunged without providing the DPS with notice of the reset hearing.
CONCLUSION
We reverse and set aside the trial court's expunction order. See id. at 113 n. 4 (holding violation of mandatory procedures necessitates setting aside of expunction order but does not prevent petitioner from refiling another expunction petition).
The reversal of an expunction order encompasses all of the agencies in possession of appellee's criminal record, even those who did not appeal. Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam); Deck, 954 S.W.2d at 113 n. 4. We decline to address the DPS's second issue as it is not dispositive to this appeal. Tex. R. App. P. 47.1.