Opinion
No. 08-19-00109-CV
03-27-2020
In the MATTER OF the Expunction of J.J.R. Jr.
ATTORNEYS FOR APPELLEE, Jeanine Hudson, Amanda B. Morrison, Texas Department of Public Safety, CRS Legal - Expunctions (MSC 0234), P.O. Box 4143, Austin, TX 78765. ATTORNEY FOR APPELLANT, Jeffrey Libersat, Dunham & Jones PC, 1800 Guadalupe St, Austin, TX 78701-1217.
ATTORNEYS FOR APPELLEE, Jeanine Hudson, Amanda B. Morrison, Texas Department of Public Safety, CRS Legal - Expunctions (MSC 0234), P.O. Box 4143, Austin, TX 78765.
ATTORNEY FOR APPELLANT, Jeffrey Libersat, Dunham & Jones PC, 1800 Guadalupe St, Austin, TX 78701-1217.
Before Alley, C.J., Rodriguez, and Palafox, JJ.
OPINION
GINA M. PALAFOX, Justice After being acquitted by a jury of a charge of Driving While Intoxicated 2nd (DWI 2nd) arising from an arrest of September 2015, Appellant J.J.R. Jr. (J.J.R.) filed a petition for expunction alleging he was not only acquitted of the offense charged but he was not otherwise convicted of another offense arising out of the same criminal episode. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1)(A), (c). As required, J.J.R.’s petition included a list of law enforcement agencies having records or files subject to the expunction. The trial court thereafter granted the expunction without first setting a hearing on the petition and giving reasonable notice to all agencies listed therein. See id. art. 55.02, § 2(c). But after Appellee, the Texas Department of Public Safety (DPS) received notice of the trial court's expunction order, it filed a motion for new trial alleging J.J.R. was not entitled to expunge his September 2015 arrest because it arose out of a criminal episode that included a conviction of a DWI offense arising from an arrest in 2006. Based solely on the DPS's motion for new trial, and without a hearing, the trial court reversed course and entered a second order that not only ordered a new trial but also denied the expunction of the 2015 arrest.
In this appeal, J.J.R. challenges the trial court's order granting a new trial and denying his petition for expunction. Responding, the DPS advances multiple, alternative arguments including—as relevant to our disposition of this appeal—that a new trial was appropriate because DPS was not notified of the initial setting of a hearing on J.J.R.’s petition, and consequently, the record reflected a proceeding in violation of the expunction statute. See id. art. 55.02, § 2(c). Ultimately, we hold that the trial court erred in granting more relief than could have been afforded through DPS's motion for new trial where the court ruled on the merits of the underlying petition for expunction without setting a hearing and providing reasonable notice as statutorily required. See id. Therefore, we reverse and remand for such a hearing.
This case was transferred to us from the Third Court of Appeals pursuant to the Texas Supreme Court's docket equalization efforts. We follow the precedents from that Court where they might conflict with our own. Tex. R. App. P. 41.3.
BACKGROUND
On July 3, 2018, J.J.R. filed his petition for expunction of records seeking to have all records destroyed which related to his arrest on September 2, 2015 for an offense of DWI 2nd. The petition listed several law enforcement agencies including the DPS that had possession of records which were sought to be expunged that should be served with reasonable notice of the trial court's setting of a hearing on the petition. As his sole ground, J.J.R. alleged that he was entitled to an expunction of the arrest of September 2015 because he was tried by a jury and acquitted of the offense charged and because he "was not convicted of and does not remain subject to prosecution for another offense arising out of the same criminal episode." The only exhibit that J.J.R. attached to his petition was an uncertified copy of the judgment from his DWI 2nd trial reflecting the jury's not guilty verdict, which was signed on June 28, 2018.
On October 16, 2018, the trial court entered an order of expunction requiring the listed agencies to destroy all records relating to the arrest of September 2015 for the offense charged of DWI 2nd. In its recital, the order stated that "[p]etitioner appeared, and no other party appeared." Thereafter, the clerk of the district courts of Hays County notified the agencies listed in the petition as having records of J.J.R.’s arrest of September 2015 of the expunction order issued by the trial court and attached a certified copy.
On October 31, 2018, the DPS filed a motion for new trial to set aside the expunction order and requesting a new trial. The motion alleged that J.J.R. was previously convicted of a separate DWI arising from an arrest on August 25, 2006, which resulted in a 24 month probated sentence that was later revoked such that J.J.R. was sentenced to 20 days in jail and assessed a fine of $550. The DPS alleged that J.J.R.’s earlier conviction of DWI, a Class B misdemeanor, barred the expunction of the arrest of September 2, 2015 for the charge of DWI 2nd, a Class A misdemeanor, because the earlier conviction occurred during the same criminal episode—as defined by the statute—as the second offense charged. The DPS contended it was not served with the petition nor did the court set a hearing and give reasonable notice to all agencies named in the petition. The DPS did not attach any records or affidavit to its motion for new trial.
On December 4, 2018, the trial court entered an order that not only granted the DPS's motion for new trial but also denied the petition for expunction on the merits (the denial order). The denial order recited, "[b]ecause the petitioner was acquitted of an offense from the same criminal episode as an offense [for which he] was convicted, the Court finds that the petitioner is not entitled to an expunction of the acquitted charge." This order did not recite that any evidentiary hearing was held prior to its entry, and both parties contend otherwise. On December 17, 2018, J.J.R. filed a request with the court for findings of fact and conclusions of law. Thereafter, on March 1, 2019, J.J.R. filed his notice of appeal from the denial order.
DISCUSSION
In his sole issue on appeal, J.J.R. argues that he was entitled to an expunction of records relating to his 2015 arrest for the offense of DWI 2nd because he was acquitted, and the charge did not arise out of the same criminal episode as his previous conviction years earlier for a DWI offense. The DPS argues to the contrary on that issue and additionally contends at the outset that this Court must dismiss the appeal because "findings of fact are not appropriate in this case, so the request for findings does not extend the time to perfect an appeal" and, therefore, J.J.R.’s notice of appeal was untimely. As a further alternative argument, the DPS contends that the trial court properly granted the motion for new trial because the DPS was never properly notified by the court of a hearing being set on the petition as required by Texas Code of Criminal Procedure article 55.02, § 2(c).
Apart from these arguments, we further perceive a separate jurisdictional issue arising from the appeal of the trial court's order that may implicate our ability to entertain this appeal. Given that an untimely notice of appeal and other potential restrictions on our ability to review an order granting a new trial would implicate our jurisdiction over the appeal, we must address the jurisdictional matters first. See Tex. Dep't of Parks and Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004) ("We adhere to the fundamental precept that a court must not proceed on the merits of a case until legitimate challenges to its jurisdiction have been decided."). Whether the Trial Court's Order is Reviewable
We first determine whether the trial court's denial order is appealable. We recognize that an order granting a new trial in civil cases is ordinarily an unappealable, interlocutory order. See Wilkins v. Methodist Health Care Sys. , 160 S.W.3d 559, 563 (Tex. 2005) ; Fruehauf Corp. v. Carrillo , 848 S.W.2d 83, 84 (Tex. 1993). However, the general rule in Texas also provides that an appeal may be taken from a final judgment. See Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 195 (Tex. 2001). With few exceptions not relevant here, a judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record. See id.
In this case, the denial order purported to dispose of the only pending claim in this case—i.e., J.J.R.’s request for an expunction—and purported to do so for all parties who could have been affected by the claim to include the DPS and other agencies who were alleged by J.J.R.’s petition to have possession of files and records pertaining to his arrest in September 2015 for the offense of DWI 2nd. Although we ultimately take issue with the trial court's authority to effectuate such purported relief by use of a motion for new trial, as will be more fully discussed below, we find that the order was appealable in this instance because it operated in such a manner as to dispose of all parties and claims then pending. See Lehmann , 39 S.W.3d at 195 ; compare Wilkins , 160 S.W.3d at 563 ; Fruehauf Corp. , 848 S.W.2d at 84. Thus, we next consider whether the notice of appeal was timely filed.
Whether the Notice of Appeal was Timely Following the Request for Findings of Fact and Conclusions of Law
A court of appeals lacks jurisdiction over a case in which an appellant fails to timely perfect the appeal. Naaman v. Grider , 126 S.W.3d 73, 74 (Tex. 2003). In such a circumstance, we must dismiss the appeal for want of jurisdiction. Id. at 74-75. Generally, notice of appeal must be filed within 30 days after a judgment is signed. TEX. R. APP. P. 26.1. However, a timely request for findings of fact and conclusions of law extends the appellate timetable when the findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could be properly considered by the appellate court. TEX. R. APP. P. 26.1(a)(4). Of note, in IKB Indus. (Nigeria) Ltd. , the Texas Supreme Court instructed that a request for findings of fact and conclusions of law did not extend the time for perfecting the appeal of a judgment in all instances and explained there is no extension where findings and conclusions have no purpose and should not be requested. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp. , 938 S.W.2d 440, 443 (Tex. 1997) ("Examples are summary judgment, judgment after directed verdict, judgment non obstante veredicto, default judgment awarding liquidated damages, dismissal for want of prosecution without an evidentiary hearing, dismissal for want of jurisdiction without an evidentiary hearing, dismissal based on the pleadings or special exceptions, and any judgment rendered without an evidentiary hearing."); e.g., Linwood v. NCNB Tex. , 885 S.W.2d 102, 103 (Tex. 1994) (timetable not extended given that request for findings have no place in a summary judgment proceeding).
In an expunction proceeding, the petitioner bears the burden of proving that statutory requirements have been met such that he is entitled to expunction of records. Matter of Expunction of J.R. , 578 S.W.3d 272, 274 (Tex. App.—El Paso 2019, no pet.). As relevant here, article 55.01(a)(1)(A) of the Code of Criminal Procedure provides that a person who has been placed under a custodial arrest for commission of either a felony or misdemeanor offense is entitled to have all records and files relating to the arrest expunged if the person is tried for the offense and is acquitted by the trial court, except as provided by subsection (c). See TEX. CODE CRIM.PROC.ANN. art. 55.01(a)(1)(A). Operating as an exception, subsection (c) provides that a court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted if the offense for which the person was acquitted arose out of a criminal episode as defined by section 3.01 of the Texas Penal Code. See id. art. 55.01(c). Section 3.01 defines "criminal episode" as "the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses."
Here, based on the procedural posture of this case and the state of this record, we do not believe that the circumstances alleged by the parties show that findings of fact and conclusions of law could not properly be considered on appeal. Both parties rely on factual assertions in support of their arguments as they ultimately dispute whether J.J.R.’s arrest for the offense of DWI 2nd on September 2, 2015, and his earlier conviction for a DWI offense from an arrest on August 25, 2006, arose out of a criminal episode such that it would bar the expunction of records relating to the 2015 arrest that led to an acquittal. Nonetheless, no hearing was ever set on the matter even with regard to a disposition without a hearing based on proper submission of an evidentiary record. Based on the factual dispute, the procedural posture and the state of this record, we cannot conclude that findings of fact and conclusions of law could not properly be considered on appeal of this matter. See IKB Industries , 938 S.W.2d at 443. Thus, J.J.R. having timely filed a request for findings, we hold that the notice of appeal was not due until 90 days after the trial court entered its denial order. See TEX. R. APP. P. 26.1(a)(4).
Yet, the DPS also contends that J.J.R.’s request for findings and conclusions could not extend the appellate deadline for him to file his notice of appeal for two additional reasons: (1) he failed to serve the DPS with his request for findings and conclusions as required under Texas Rule of Civil Procedure 296 ; and (2) he failed to file a notice of past due findings of fact and conclusions of law as required under Texas Rule of Civil Procedure 297. See TEX. R. CIV. P. 296, 297. We observe that a party waives its right to challenge a failure by the trial court to file findings of fact and conclusions of law if the party fails to file and serve a notice of past due findings and conclusions or, possibly, when a party fails to serve a request for findings and conclusions on all parties. See Ad Villarai, LLC v. Chan II Pak , 519 S.W.3d 132, 137 (Tex. 2017) ("We have held that a party waives its right to challenge a failure to file findings if it does not file a notice of past due findings as rule 297 requires."); see also Thomas v. Latson , No. 14-18-00316-CV, 2019 WL 7372042, at *2 (Tex. App.—Houston [14th Dist.] Dec. 31, 2019, no pet.) (mem. op.) (holding that appellants waived their complaint that the trial court failed to file findings where appellants failed to timely file and serve on appellees a notice of past due findings); Allibone v. Freshour , No. 03-17-00357-CV, 2017 WL 5663607, at *3 (Tex. App.—Austin Nov. 21, 2017, pet. filed) (mem. op.) (same). But while a party may forfeit its right to challenge the trial court's failure to file findings and conclusions, nonetheless a party's filing of the initial request for findings and conclusions extends the appellate timetable under Texas Rule of Appellate Procedure 26.1(a)(4) despite the party's failure to perform the additional requisites to preserve a complaint about the trial court's failure to file findings. Cf. Tunad Enter., Inc. v. Palma , No. 05-17-00208-CV, 2018 WL 3134891, at *6 (Tex. App.—Dallas June 27, 2018, no pet.) (mem. op.) (holding that a defendant's failure to properly serve an answer does not render it a nullity) (citing Dougherty v. Brewer , No. 03-12-00445-CV, 2012 WL 6097320, at *1 (Tex. App.—Austin Dec. 6, 2012, no pet.) (mem. op.)).
Therefore, we hold that J.J.R.’s filing of his request for findings of fact and conclusions of law extended the appellate timetable applicable for filing a timely notice of appeal under the circumstances of this case. As the denial order was entered on December 4, 2018, his notice of appeal was due ninety days thereafter, on or before March 4, 2019, and his notice filed on March 1, 2019, was timely. See TEX. R. APP. P. 4.1(a), 26.1.
Despite the DPS's assertion in its brief that J.J.R. failed to serve his request for findings of fact and conclusions of law on the DPS, we note that J.J.R.’s request contained a recitation, signed by his attorney, that the request "was served on each attorney of record or party in accordance with the Texas Rules of Civil Procedure." Nonetheless, for the reasons given above, we find this factual dispute raised by the DPS unnecessary to the resolution of whether J.J.R.’s notice of appeal was timely filed.
Whether the Trial Court's Purported Merits-Based Ruling on the Expunction Petition Exceeded its Authority under a Motion for New Trial
Because we also see an issue with the purported relief granted by the trial court's order pursuant to the DPS's chosen vehicle of a motion for new trial, we next proceed to determine whether the trial court's denial order—purporting to deny J.J.R.’s petition for expunction on the merits—exceeded the court's authority with respect to the nature of relief that could have been afforded pursuant to that particular type of motion.
The greatest relief that an order granting a motion for new trial can afford is, simply, a new trial and not a final disposition on any underlying live pleadings in the case. See TEX. R. CIV. P. 320 ("New trials may be granted and judgment set aside for good cause, on motion or on the court's own motion on such terms as the court shall direct.") [Emphasis added]; Wilkins , 160 S.W.3d at 563 ("[T]he trial court wiped the slate clean when it granted Wilkins's motion for new trial; it is as though the court's first order granting summary judgment never existed, which is all the relief to which Wilkins was entitled."); see also, e.g. , In re Young , No. 12-18-00341-CV, 2019 WL 141380, at *3 (Tex. App.—Tyler Jan. 9, 2019, no pet.) (mem. op.); Gerdes v. Kennamer , 155 S.W.3d 523, 532 (Tex. App.—Corpus Christi 2004, pet. denied) ; D/FW Commercial Roofing Co., Inc. v. Mehra , 854 S.W.2d 182, 189 (Tex. App.—Dallas 1993, no pet.) (cases observing that the purpose of a motion for new trial is to provide the trial court with an opportunity to cure any errors by granting a new trial).
In this case, the trial court's order recited that the court granted the DPS's motion for new trial and denied J.J.R.’s petition for expunction. However, the purported denial of J.J.R.’s petition for expunction cannot be accomplished through the DPS's chosen vehicle of a motion for new trial because the greatest relief that the trial court could have afforded was simply a new trial without any disposition on the underlying petition. See TEX. R. CIV. P. 320 ; Wilkins , 160 S.W.3d at 559 ; see also, e.g. , In re Young , 2019 WL 141380, at *3 ; Gerdes , 155 S.W.3d at 532 ; D/FW Commercial Roofing Co. , 854 S.W.2d at 189. Thus, the trial court erred by purporting to deny J.J.R.’s petition, and this denial is a nullity.
We must still address the DPS's remaining alternative argument that the trial court erred in failing to afford a hearing and reasonable notice of such a hearing on the petition for expunction.
Whether the Trial Court Erred in Failing to Afford a Hearing, along with Reasonable Notice, on the Petition for Expunction
The remedy of expunction allows a person who has been arrested for the commission of an offense to have all information about the arrest removed from the State's records if he meets the statutory requirements set out in chapter 55 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 55.01 –06; Texas Dep't of Public Safety v. Nail, 305 S.W.3d 673, 675 (Tex. App.—Austin 2010, no pet.). Expunction is neither a constitutional nor common-law right, but rather, a statutory privilege. Travis Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920, 923 (Tex. App.—Austin 2011, no pet.). Article 55.02 of the Code of Criminal Procedure governs the procedural requirements related to an expunction of criminal records. TEX. CODE CRIM.PROC.ANN. art. 55.02.
We first note that the expunction statute explicitly requires the trial court to set a hearing and to give reasonable notice to each official, agency, or government entity which was named in the petition seeking an expunction of criminal records. See id. art. 55.02, § 2(c). This provision provides that "[t]he court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing[.]" Id. When construing this provision, courts have held that an evidentiary hearing is not necessarily required if the petition seeking expunction can be decided on the paper record alone. Ex parte Wilson , 224 S.W.3d 860, 863 (Tex. App.—Texarkana 2007, no pet.) ; Ex parte Current , 877 S.W.2d 833, 839 (Tex. App.—Waco 1994, no pet.). For example, a trial court may rule on a petition for an expunction if it has at its disposal all the information it needs to resolve the issues raised by the petition. Ex parte Wilson , 224 S.W.3d at 863. That information might be available by what is in the pleadings, by summary judgment proof, or by judicially noticed court records. Id.
Several courts have concluded that an expunction order must be set aside when a hearing is required but no reasonable notice of the hearing is given to an official agency or governmental entity entitled to notice. See Tex. Dep't of Pub. Safety v. Soto , 285 S.W.3d 542, 544 (Tex. App.—Corpus Christi 2009, no pet.) (setting aside an expunction order where an agency named in the petition was not given notice of the requisite hearing under article 55.02, § 2(c) of the Texas Code of Criminal Procedure ); Tex. Dep't of Pub. Safety v. Deck , 954 S.W.2d 108, 112 (Tex. App.—San Antonio 1997, no pet.) ("The procedures listed in article 55.02 are mandatory and must be complied with in an expunction proceeding. If the record does not indicate that the 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.") [Internal citations omitted]; see also Travis Cty. Attorney v. L. C. , No. 03-13-00702-CV, 2015 WL 2376060, at *2-3 (Tex. App.—Austin May 12, 2015, no pet.) (mem. op.) (holding that the record reflected the trial court abused its discretion in granting an expunction where, in addition to its failure to abide by a separate statutory requirement, the trial court failed to set a hearing on the expunction petition and concomitantly failed to give notice such a hearing to one of the entities affected by the expunction order as required under article 55.02, § 2(c) of the Texas Code of Criminal Procedure ).
Here, nothing in the record indicates the DPS initially received notice of the filing of J.J.R.’s petition for expunction or that either party thereafter received notice of a hearing on the DPS's motion for new trial. When agencies are properly served with a petition for expunction, an evidentiary hearing may not necessarily be required if the trial court has been presented some form of documentary support in the record establishing all the information required for the trial court to rule on the petition. See Ex parte Wilson , 224 S.W.3d at 863. But the record here does not satisfy this exception.
Although an uncertified copy of the acquittal judgment from J.J.R.’s DWI 2nd trial was attached to the petition itself, the court received no testimony nor was any evidence presented to support the allegations of the petition given no hearing was set. Similarly, by DPS not receiving notice of the setting of a hearing, it had no opportunity to assert its counter allegation that the offense for which J.J.R. was acquitted arose out of a criminal episode—as defined by section 3.01 of the Penal Code —and that J.J.R. was convicted of an offense occurring during the criminal episode. Before ruling on the dispositive motion, the trial court similarly failed to set the matter for a hearing and provide reasonable notice to J.J.R, the DPS, and other agencies named in J.J.R.’s petition. Accordingly, we conclude that the trial court reversibly erred by rendering its order without first giving reasonable notice as required for expunction of criminal records. See TEX. CODE CRIM.PROC.ANN. art. 55.02, § 2(c) ; Cf. Soto , 285 S.W.3d at 544 (concluding that reversal of expunction order was the proper remedy in a restricted appeal brought by DPS where the trial court erred by failing to give DPS prior notice of hearing); Deck , 954 S.W.2d at 112 ; see also L. C. , 2015 WL 2376060, at *2-3. We therefore remand this case to the trial court to afford all parties herein with an opportunity to set a hearing from which a record may be developed therefrom.
CONCLUSION
We reverse the trial court's judgment and remand for further proceedings consistent with this opinion.