Opinion
No. 10-05-00254-CV
Opinion delivered and filed August 30, 2006.
Appeal from the 85th District Court, Brazos County, Texas, Trial Court No. 05-001121-CV-85.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA (Justice VANCE dissents from the judgment with a note)
(Note by Justice Vance: "I believe that F.F.A.'s Petition, mailed to the district clerk on April 6, 2004, should have been filed in cause number 04-000483-CV-85. The failure to do so now results in a dismissal of the present cause because it is `substantially similar to two prior expunction suits.' Neither prior suit, however, resulted in a judgment on the merits. Thus, F.F.A. will now have three prior suits, and the issue he attempts to litigate — important to him and authorized by statute — will in all probability never be decided. I would reverse the judgment and remand for further proceedings.")
MEMORANDUM OPINION
F.F.A. filed a petition for expunction of records relating to his arrest for arson. The court dismissed the suit as "frivolous or malicious" under Chapter 14 of the Government Code because it is substantially similar to two prior suits filed by F.F.A.F.F.A. contends in three issues that: (1) the dismissal order is void because the district clerk docketed the suit in the 85th District Court even though F.F.A. intended for it to be filed in the 272nd District Court; (2) the order is void because the order dismissing one of the prior suits is void because F.F.A. filed his petition in the prior suit in cause no. 04-000483-CV-85 but the district clerk assigned a new cause number to the petition; and (3) the order is void because the order dismissing the other prior suit is void because F.F.A. timely filed an affidavit of indigence in that suit. We will affirm.
Background
F.F.A. was arrested and indicted for arson, but it is unclear whether the indictment was filed in the 85th District Court or the 272nd District Court. Nevertheless, the Honorable W.T. McDonald, Judge of the 85th District Court signed an order dismissing the arson case in February 1982. There is no indication in the record whether this dismissal was part of a plea bargain in another case, due to insufficient evidence, or done for some other reason.
F.F.A. filed an expunction petition on February 19, 2004 which was docketed under cause no. 04-000483-CV-85 in the 85th District Court. The trial court signed an "Order to Replead and Submit Additional Affidavit" on February 27. The court ordered F.F.A. to file, on or before April 2: (1) an amended petition which complied with article 55.02 of the Code of Criminal Procedure; and (2) an affidavit of previous filings which complied with section 14.004 of the Civil Practice and Remedies Code.
F.F.A. filed an amended petition on March 22. The district clerk notified him by letter dated March 29 that his amended petition was being returned because his "affidavit for inability to pay [was] incomplete." The clerk's notice stated, "To resubmit this pleading, the party must submit an amended pleading which complies with the local and state rules."
The court signed an order dismissing cause no. 04-000483-CV-85 on April 2 because of F.F.A.'s failure to comply with the February 27 order. F.F.A. did not appeal the April 2 order of dismissal.
On April 6, F.F.A. mailed to the district clerk a "Petition for Expunction of Records" bearing cause no. 04-000483-CV-85. Presumably because of the April 2 dismissal order, the clerk docketed this petition on April 20 under cause no. 04-001028-CV-85.
The court signed an order on April 27 dismissing cause no. 04-001028-CV-85 as frivolous under Chapter 14 of the Government Code because it was substantially similar to cause no. 04-000483-CV-85. F.F.A. did not appeal the April 27 order of dismissal.
F.F.A. filed the present suit on April 27, 2005. F.F.A. indicated in the style of his petition that he wanted the suit to be filed in the 272nd District Court. However, the district clerk docketed the suit in the 85th District Court under cause no. 05-001121-CV-85.
The court signed an order on May 3 dismissing the suit as "frivolous or malicious" under Chapter 14 of the Government Code because it is substantially similar to the two prior expunction suits.
Proper District Court
F.F.A. contends in his first issue that the dismissal order is void because the district clerk docketed the suit in the 85th District Court even though F.F.A. intended for it to be filed in the 272nd District Court.
"A judgment is void only when it is apparent that the court rendering judgment `had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.'" Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005) (quoting Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (orig. proceeding) (per curiam)).
Here, F.F.A. does not dispute that the 85th District Court had jurisdiction of the parties and subject matter and did not act outside its capacity as a court. In fact, F.F.A. chose the 85th District Court to file his two prior expunction petitions.
Article 55.02, section 2(a) provides that an expunction petition should be filed "in a district court" in the county where the defendant was arrested or the offense was alleged to have occurred. Tex. Code Crim. Proc. Ann. art. 55.02, § 2(a) (Vernon Supp. 2006). The statute does not require the petition to be filed in any particular district court in a proper county. Cf. id. art. 55.02, § 1 (Vernon Supp. 2006) (if a defendant is acquitted in district court, that court "shall enter an order of expunction" if a proper request is made).
Section 24.304 of the Government Code provides:
In a county in which there are two or more district courts, the judges of the courts may adopt rules governing the filing and numbering of cases, the assignment of cases for trial, and the distribution of the work of the courts as in their discretion they consider necessary or desirable for the orderly dispatch of the business of the courts.
TEX. GOV'T CODE ANN. § 24.304 (Vernon 2004). The judges of the district and statutory county courts of Brazos County have adopted local rules of administration.
Local Rule 3.10(b) provides in pertinent part, "All civil cases filed with the District Clerk shall be assigned to courts on a random basis, so that no person may predetermine the court to which a case will be assigned." BRAZOS (TEX.) LOC. R. 3.10(b).
An expunction proceeding is civil in nature. See Bargas v. State, 164 S.W.3d 763, 771 (Tex.App.-Corpus Christi 2005, no pet.); Houston Police Dep't v. Berkowitz, 95 S.W.3d 457, 460 (Tex.App.-Houston [1st Dist.] 2002, pet. denied). Thus, the local rules for civil cases apply. Nevertheless, the local rule for docketing criminal cases in the Brazos County district courts is similar. See Brazos (Tex.) Loc. R. 6.12(a)(1) ("all felony cases . . . presented to the district clerk for filing will be assigned among the district courts on the basis of a sequential order").
The 85th District Court had jurisdiction of the parties and subject matter and did not act outside its capacity as a court. Section 2(a) of article 55.02 does not require that an expunction petition be filed in any particular district court. By local rule, a civil litigant is not permitted to choose the district court to which his suit will be assigned.
Accordingly, we overrule F.F.A.'s first issue.
Validity of Prior Dismissal Order
F.F.A. contends in his second and third issues that the 2005 dismissal order is void because the 2004 dismissal orders are void. He contends that the 2004 orders are void because: (1) he filed his April 20, 2004 petition under cause no. 04-000483-CV-85 but the district clerk assigned a new cause number to the petition; and (2) he timely filed an affidavit of indigence on March 29, 2004.
A party may collaterally attack a void judgment. See Browning, 165 S.W.3d at 346. F.F.A.'s contention that the 2005 dismissal order is void because the 2004 dismissal orders are void is, in effect, a collateral attack on the 2004 orders. However, neither of the alleged deficiencies identified by F.F.A. in his second and third issues would cause the 2004 orders to be void. Id. Accordingly, we overrule F.F.A.'s second and third issues.
We affirm the judgment.