Opinion
No. 07-17-00010-CV
06-01-2017
Ex parte J.C.M.
On Appeal from the 396th District Court Tarrant County, Texas
Trial Court No. NO. D396-E-12645-16 , Honorable George Gallagher, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This matter comes to us from the Second Court of Appeals. Acting pro se, J.C.M. appeals from a final judgment denying his petition for expunction and raises three issues. All are briefed in one extended and rather confusing paragraph found under the heading "argument." Yet, it is rather clear that he complains about being denied opportunity to participate in the hearing convened by the trial court prior to its entry of the judgment. Appellant believed that he should have been allowed to participate either through having him returned from prison via a bench warrant or through a conference call. We affirm.
A party cannot be denied access to the courts simply because he is incarcerated. Stanton v. Stanton, No. 02-13-00097-CV, 2014 Tex. App. LEXIS 11489, at *3-4 (Tex. App.—Fort Worth Oct. 16, 2014, pet. denied) (mem. op.). Yet, an inmate has no absolute right to personally appear in every court proceeding. In re Z.L.T., 124 S.W.3d 163, 165-66 (Tex. 2003). Rather, his right to access must be weighed against the protection of our correctional integrity. Id.
Furthermore, the Fort Worth Court of Appeals has held that an inmate who seeks expunction but was denied opportunity to appear at the hearing not only must preserve the complaint but also prove harm. McCarroll v. Tex. Dep't. of Pub. Safety, 86 S.W.3d 376, 379 (Tex. App.—Fort Worth 2002, no pet.) (stating that "on appeal the appellant has the burden of showing that any trial court error probably caused the rendition of an improper judgment or prevented the appellant from properly presenting the case to the court of appeals"); but see Ex parte B.R.G., No. 02-13-00285-CV, 2014 Tex. App. LEXIS 4462, at *7-8 (Tex. App.—Fort Worth Apr. 24, 2016, no pet.) (stating that a "trial court may rule on an expunction petition without conducting a formal hearing and without considering live testimony if it has at its disposal all of the information it needs to resolve the issues raised in the petition"). In applying that rule to the circumstances before it, the McCarroll court said
[McCarroll] failed to preserve error on his complaint about the trial court's failure to conduct a hearing with appellant present because he never explained to either the trial court or this court what his testimony would establish, why his testimony would be helpful to his case, or how he was harmed by not being allowed to 'give testimony' either by personally appearing in court or by alternative means.McCarroll v. Tex. Dep't. of Pub. Safety, 86 S.W.3d at 379-80. It also noted that though a "trial court is required to set a hearing on a petition for expunction," failing to do so "was harmless because of the improbability of appellant's success on the merits." Id. at 378.
McCarroll remains viable precedent of the Fort Worth Court of Appeals. So too does it control the outcome here since the appeal was actually transferred to us from there. See TEX. R. APP. P. 41.3 (stating that "[i]n cases transferred by the Supreme Court from one court of appeals to another, the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court's decision otherwise would have been inconsistent with the precedent of the transferor court."). And, in applying McCarroll, we conclude that Moore failed to preserve his complaint just as did McCarroll. Like McCarroll, Moore did not explain to either the trial court or us what his testimony would establish, why his testimony would be helpful to his case, or how he was harmed by not being allowed to participate in the hearing either by personally appearing in court or by alternative means. Thus, his complaint, like McCarroll's, about being denied opportunity to attend the hearing was waived. The same omissions also would indicate that he failed to prove he was harmed by the purported error he mentioned.
His issues are overruled, and the judgment is affirmed.
Per Curiam