Opinion
No. 09-10-00210-CV
Submitted on June 1, 2010.
Opinion Delivered July 8, 2010.
Original Proceeding.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
Relators Tyrone Cooper, Joseph P. Sanders, Quentin Price, Judi Rawls, and Darrell Vogel are attorneys employed by the City of Beaumont. In this original proceeding, we must determine whether the trial court lacked jurisdiction to disqualify relators from appearing in any case involving the real party in interest, J.E.M. We conditionally grant the petition for writ of mandamus.
BACKGROUND
J.E.M., a firefighter employed by the City of Beaumont, was charged with aggravated assault, and the fire chief subsequently terminated J.E.M.'s employment. After moving for an instructed verdict, J.E.M. was acquitted of the charge in cause number 08-04462 in the 252nd District Court of Jefferson County, Texas, on July 21, 2009. J.E.M. then filed a petition for expunction, to which the trial court assigned a separate cause number, X-921, on July 28, 2009. In his petition, J.E.M. contended that because he was acquitted, he was entitled to expunction of all records and files relating to the charge pursuant to article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1)(A) (Vernon Supp. 2009). J.E.M.'s petition identified seven entities that "may have records or files pertaining to [J.E.M.] in connection with the arrest and/or alleged offense . . ., and which are subject to expunction[.]" One of the named entities was "Beaumont Police Department," but the City of Beaumont was not identified in the petition, nor was a copy of the petition served upon the Mayor. On August 7, 2009, the trial court signed an order granting J.E.M.'s petition for expunction and requiring the entities named in J.E.M.'s petition to return to the Court all records and files that are subject to the order and to "delete from public records all index references to the records and files that are subject to this Order." The trial court's expunction order bore the cause number (X-921) that it had assigned to the expunction proceeding.
The charter of the City of Beaumont provides that "[a]ll legal process against the City shall be served upon the Mayor or acting Mayor."
J.E.M. subsequently sought reinstatement to his position as a firefighter via a disciplinary appeal before a hearing examiner. The case went to arbitration, and the arbitrator found in J.E.M.'s favor on November 10, 2009. On January 5, 2010, J.E.M. filed a motion to enforce the expunction order, in which he asserted that "[m]onths after his acquittal, [J.E.M.] became aware for the first time that the City of Beaumont was in possession of the criminal file . . . when the City of Beaumont, a political subdivision of the State . . ., attempted to improperly use the record or file in an arbitration proceeding." J.E.M. filed the motion in the underlying criminal case, cause number 08-04462. J.E.M. argued that he had provided multiple notices to the City of Beaumont and its officers or employees "in an attempt to persuade those employees and the City to stop releasing, disseminating[,] or otherwise using the record or file. . . . To date, employees and officers of the City of Beaumont have refused to stop using, disseminating[,] or releasing the file and have refused to return it." J.E.M. contended that because the City of Beaumont is not a law enforcement agency, the Code of Criminal Procedure does not require that the City be notified of the expunction proceeding. On January 10, 2010, the trial court held an in camera hearing regarding the issue. Joseph C. "Lum" Hawthorne appeared at said hearing on behalf of the City of Beaumont.
On January 12, 2010, J.E.M. filed a motion to disqualify and motion for sanctions, in which he sought to disqualify Hawthorne and all attorneys employed by the City of Beaumont. Once again, J.E.M. filed this motion in the criminal cause number (08-04462) rather than in the expunction case (cause number X-921). In the motion to disqualify, J.E.M. contended that he had attempted to retain Hawthorne to represent him in the aggravated assault case, and that J.E.M. had "spent a long period of time discussing the issues with Mr. Hawthorne and revealed to [Hawthorne] secret and privileged attorney client information and received from Mr. Hawthorne secret and privileged attorney advice on what he should do with a view to obtaining professional legal services from [him]." J.E.M. asserted that Hawthorne was disqualified under the applicable rules of professional conduct, and that when the City of Beaumont retained Hawthorne, the City's attorneys "became just as disqualified as Hawthorne in representing the City's adverse interests against [J.E.M.]." J.E.M.'s motion requested that the trial court disqualify Hawthorne and the City of Beaumont's legal staff "from performing any further work on behalf of the City of Beaumont which relates in any way to [J.E.M.]" and sought "severe monetary sanctions[.]"
On January 13, 2010, the trial court held a hearing on J.E.M.'s motion to disqualify, and at the conclusion of the hearing, the trial judge stated, "I do find that the City Attorneys are disqualified. They will be disqualified from this matter." The reporter's record of the hearing bore the 08-04462 cause number. The trial judge apparently did not sign a written order memorializing his disqualification of the City's attorneys. The trial court apparently ordered the parties to mediation and scheduled a hearing on J.E.M.'s motion for sanctions against the City's attorneys. The relators then filed a petition for writ of mandamus with this Court, as well as an emergency motion for temporary relief. The relators do not state that they are filing the petition for writ of mandamus on behalf of the City. The relators apparently filed the petition as individuals; however, the relief they seek pertains to regaining their ability to represent the City. We granted relators' emergency motion for temporary relief and stayed further proceedings in cause numbers 08-04462 and X-921 pending further order or opinion of this Court. In this proceeding, the relators ask us to review three issues: (1) whether the trial court lacked plenary jurisdiction to disqualify them, (2) whether the expunction order was void because it was entered less than thirty days after the petition for expunction was filed, and (3) whether the expunction order was unenforceable against the City because the City was never served with the petition for expunction and order of expunction.
ISSUE ONE
In issue one, relators contend the trial court lacked plenary jurisdiction to disqualify them. "[S]ubject-matter jurisdiction requires both a general grant of authority to the trial court and a charging instrument that invokes that jurisdiction over the particular case." Trejo v. State, 280 S.W.3d 258, 260 (Tex. Crim. App. 2009). Unless a court's authority to perform a contemplated act can be found in the Constitution or laws enacted under the Constitution, the Court is without jurisdiction and its acts are invalid. Garcia v. Dial, 596 S.W.2d 524, 527 (Tex. Crim. App. 1980).
An acquittal is a dismissal that occurs after jeopardy has attached. See Tex. Dep't of Pub. Safety v. Nielsen, 102 S.W.3d 313, 316 (Tex. App.-Beaumont 2003, no pet.) (citing Lewis v. State, 889 S.W.2d 403, 406 (Tex. App.-Austin 1994, pet. ref'd)). "Jeopardy attaches when both sides have announced ready and the defendant has pled to the charging instrument." Nielsen, 102 S.W.3d at 316 (citing State v. Torres, 805 S.W.2d 418, 421 (Tex. Crim. App. 1991)).
It is well settled that when a trial court empowered with jurisdiction over a criminal case sustains a motion to dismiss the indictment or information, the person accused thereunder is, in law, discharged from the accusation against him; there is, concomitant to such dismissal, no case pending against the accused and, accordingly, no jurisdiction remaining in the dismissing court.
Garcia, 596 S.W.2d at 528 (citations omitted). "Furthermore, it is likewise axiomatic that where there is no jurisdiction, 'the power of the court to act is as absent as if it did not exist,' . . . and any order entered by a court having no jurisdiction is void." Id. (quoting Ex parte Caldwell, 383 S.W.2d 587, 589 (Tex. Crim. App. 1964)) (internal citation omitted).
A trial court in a criminal case retains plenary power for at least thirty days after it has signed the judgment. TEX. R. APP. P. 21.4(a) (A defendant may file a motion for new trial no later than 30 days after the trial court "imposes or suspends sentence in open court."); see also McClinton v. State, 121 S.W.3d 768, 769 n. 1 (Tex. Crim. App. 2003) ("Clearly a trial court has plenary jurisdiction over a case for at least the first thirty days after sentencing because it has the authority to receive a motion for new trial . . . within that time period and to resolve the merits of that motion within 75 days after sentencing.").
As previously discussed, J.E.M. filed his motion to disqualify relators in the underlying criminal case (cause number 08-04462), in which J.E.M. was acquitted on July 21, 2009, rather than in the expunction case (cause number X-921). During the hearing held on January 13, 2010, the trial court stated on the record its conclusion that relators were disqualified. The reporter's record of said hearing indicates that the hearing was conducted in cause number 08-04462. Because no motion for new trial was filed in cause number 08-04462, the trial court's plenary power over its judgment in that case expired on August 20, 2009. See McClinton, 121 S.W.3d at 769 n. 1; TEX. R. APP. P. 21.4(a). Therefore, the trial court lacked jurisdiction to act in that case when it ordered the parties to mediation, determined that the relators were disqualified, and scheduled a hearing on J.E.M.'s motion for sanctions against relators. See Garcia, 596 S.W.2d at 528.
We will assume arguendo that J.E.M. inadvertently placed the incorrect caption on his motion to disqualify relators and for sanctions, and that the trial court simply perpetuated that clerical error by conducting additional proceedings in cause number 08-04462 rather than the expunction proceeding (cause number X-921), when the trial court actually intended to act in the expunction proceeding. Although the law that governs expunctions is part of the Code of Criminal Procedure, "[e]xpunction is a civil proceeding, not a criminal proceeding." Carson v. State, 65 S.W.3d 774, 784 (Tex. App.-Fort Worth 2001, no pet.). Therefore, the Texas Rules of Civil Procedure apply to expunction proceedings. Id. Rule 329b of the Texas Rules of Civil Procedure provides that the trial court retains plenary power for thirty days after the judgment is signed or, if a motion for new trial is filed, until thirty days after the motion is overruled, either by operation of law or by a signed order, whichever occurs first. TEX. R. CIV. P. 329b(d), (e). A trial court retains the authority to enforce its orders even after its plenary power expires. Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982); Sanders v. Blockbuster, Inc., 127 S.W.3d 382, 387 (Tex. App.-Beaumont 2004, pet. denied) (citing In re Crow-Billingsley Air Park, Ltd., 98 S.W.3d 178, 179 (Tex. 2003)); see also TEX. GOV'T CODE ANN. § 21.001(a) (Vernon 2004) ("A court has all powers necessary for the exercise of its jurisdiction and the enforcement of its lawful orders[.]"); TEX. R. CIV. P. 308 ("The court shall cause its judgments and decrees to be carried into execution[.]"). However, any enforcement orders entered by a trial court "may not be inconsistent with the original judgment or constitute a material change in the substantive adjudicated portions of the judgment." Comm'n for Lawyer Discipline v. Denisco, 132 S.W.3d 211, 215 (Tex. App.-Houston [14th] 2004, no pet.).
In his petition for expunction, J.E.M. proceeded under article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure, which provides for expunction as a matter of right when the petitioner has been acquitted. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1)(A) (Vernon Supp. 2009). Article 55.02 of the Texas Code of Criminal Procedure sets forth the procedures to be followed in expunction proceedings. Id. art. 55.02 (Vernon Supp. 2009. Section 55.02 states that the trial court must give reasonable notice of the expunction hearing to "each official or agency or other governmental entity named in the petition. . . ." Id. art. 55.02, § 2(c); see also Deck, 954 S.W.2d at 112. Article 55.02 also states that a petition filed by a person who is entitled to expunction under article 55.01(a) must include a list of "law enforcement agencies . . . or of any political subdivision of this state[.]" TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(b)(8)(A). "Because the right to expunction is a statutory privilege, the petitioner must satisfy the provisions of article 55.02[.]" Tex. Dep't of Pub. Safety v. Soto, 285 S.W.3d 542, 543 (Tex. App.-Corpus Christi 2009, no pet.).
Because J.E.M.'s expunction is a civil proceeding, and no motion for new trial was filed after the trial court entered its expunction order on August 7, 2009, the trial court's plenary power over the judgment expired on September 7, 2009. See TEX. R. CIV. P. 329b; Carson, 65 S.W.3d at 784 ("[R]ules of civil procedure apply to expunction hearings."). After that date, the trial court could act to enforce its order. See Arndt, 633 S.W.2d at 499; Sanders, 127 S.W.3d at 387; TEX. GOV'T CODE ANN. § 21.001(a); TEX. R. CIV. P. 308. However, we must determine whether the trial court's order was enforceable with respect to representatives of the City of Beaumont.
In this case, it is undisputed that the trial court did not give notice of the hearing to the City of Beaumont. J.E.M. argues that he was not required to give notice to the City because, among other reasons, the City is "not a law enforcement agency that should be in possession of these expunged records." We disagree. As discussed above, section 55.02 requires that the expunction petition contain the names of agencies that may have records subject to expunction, including any political subdivision of the State. TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(b)(8)(A). The City of Beaumont is a political subdivision of the State. See generally Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n. 3 (Tex. 2003) (stating that in the context of governmental immunity, political subdivisions of the State include counties, cities, and school districts). Consequently, for the expunction order to be enforceable against the City's representatives, the City must have received the statutorily-required notice. See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(b)(8)(A). Because the City did not receive the notice required by the expunction statute, the trial court's expunction order was unenforceable against the City and its representatives. See generally Soto, 285 S.W.3d at 543; TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(b)(8)(A), (c). Therefore, the trial court's rulings and orders as to the City's attorneys went beyond merely enforcing its expunction order, and they are not enforceable. See Denisco, 132 S.W.3d at 215. Accordingly, we sustain issue one.
We need not further address the remaining arguments in this original proceeding. The remaining issues may be raised in a future proceeding by the City itself, if necessary. See generally Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996). Generally, "[O]nly the party whose primary legal right has been breached may seek redress for an injury." Shipley v. Unifund CCR Partners, No. 10-09-00314-CV, 2010 WL 2404647, at *1 (Tex. App.-Waco June 16, 2010, no pet. h.). We have determined in our analysis that the trial court's rulings and orders regarding the City attorneys are invalid. We conditionally grant a writ of mandamus and order the trial court to vacate its rulings and orders in accordance with this opinion and dismiss the proceeding against the attorneys for want of jurisdiction. We are confident that the trial court will comply with this opinion. The writ will issue only if the trial court fails to comply.
WRIT CONDITIONALLY GRANTED.