Opinion
No. 04-11-00762-CV
06-20-2012
EX PARTE Jesse MENDEZ
MEMORANDUM OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-11961
Honorable Cathleen M. Stryker, Judge Presiding
PER CURIAM Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Marialyn Barnard, Justice
MOTION TO DISMISS GRANTED; APPEAL DISMISSED AS MOOT
In July 2011, appellant Jesse Mendez filed a petition for expunction. In response, the Staff Attorney for the Bexar County District Courts filed a Motion to Rule for Costs in which she asked the trial court to require Mendez to give security for costs or make a cash payment for costs, and that if Mendez failed to provide costs, that the court dismiss his petition. The matter was set for a hearing on September 22, 2011, but Mendez, who is incarcerated, did not appear despite filing requests to appear or have the matter conducted by conference call.
On October 5, 2011, the trial court signed a Default Order Granting Motion to Rule for Costs. In that order, the trial court ordered Mendez to pay $392.00 in costs. After that order was signed, Mendez timely filed a notice of appeal, seeking to appeal the trial court's September 22, 2011 order. However, after the notice of appeal was filed, the Staff Attorney made an oral motion to the trial court to set aside the September 22, 2011 default order, which the trial court granted by written order dated November 21, 2011. That November 21, 2011 order was not part of the clerk's record or supplemental clerk's record originally filed in this court, but we requested the District Clerk supplement the record with the November 21, 2011 order, and the district clerk complied with our order and filed a supplemental clerk's record in this court on May 8, 2012.
On May 3, 2012, the Staff Attorney for the Bexar County District Courts filed a motion to dismiss the appeal as moot. In the motion, the Staff Attorney attached a copy of the November 21, 2011 order. That order, in addition to setting aside the default order signed September 22, 2011, also denied the Motion to Rule for Costs filed by the Staff Attorney. By withdrawing the September 22, 2011 order, and denying the Motion to Rule for Costs, the trial court is currently allowing appellant to proceed on his petition for expunction without payment of costs, or as noted in a letter to Mendez dated November 18, 2011, to have an opportunity to file an affidavit of inability in compliance with section 14.004 of the Texas Civil Practice & Remedies Code. Based on the withdrawal of the order that is the basis of Mendez's appeal, the Staff Attorney has filed a motion to dismiss this appeal as moot. See Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005) (holding case becomes moot if controversy ceases to exist).
Because it appeared to this court that the motion to dismiss was meritorious, we ordered Mendez to file a response to the motion to dismiss on or before May 28, 2012. We ordered Mendez to explain why this appeal should not be dismissed as moot, given that he is now entitled to proceed on his petition for expunction without payment of costs. Mendez did not file a response.
Accordingly, we hold this appeal is moot because there is no longer any controversy between the parties as it relates to this appeal. See id. We therefore grant the motion to dismiss and order this appeal dismissed as moot.
PER CURIAM