Opinion
No. 09-10-00171-CV
Submitted on September 13, 2010.
Opinion Delivered September 23, 2010.
On Appeal from the 359th District Court, Montgomery County, Texas, Trial Cause No. 09-10-10222 CV.
Before McKEITHEN, C.J., GAULTNEY and KREGER, JJ.
MEMORANDUM OPINION
George Jones appeals the denial of his petition for expunction of arrest records relating to a felony charge out of Montgomery County for assault with a deadly weapon. The District Attorney did not object to the petition and submitted an expunction order to the trial court, but the State of Texas, acting through the Texas Department of Criminal Justice ("TDCJ"), filed a written objection to the petition. Although Jones had notice that the trial court would take the case on written submission and that TDCJ objected to the petition, Jones failed to submit evidence to support his petition for expunction. We hold that the trial court did not err in denying a petition that was unsupported by evidence, and affirm the trial court's judgment.
Chapter 55 of the Texas Code of Criminal Procedure establishes a civil proceeding for expunging certain criminal records. See TEX. CODE CRIM. PROC. ANN. art. 55.01-.06 (Vernon 2006 Supp. 2009). Because expunction is a statutory privilege, to obtain relief a petitioner must strictly comply with the statute. State v. Echeverry, 267 S.W.3d 423, 425 (Tex. App.-Corpus Christi 2008, pet. denied). When a party holding criminal records opposes a petition for expunction, the petitioner must meet his burden of proof by submitting evidence on each element of his claim. Ex parte Jackson, 132 S.W.3d 713, 716 (Tex. App.-Dallas 2004, no pet.). The allegations contained in the petition are not evidence. See Tex. Dep't of Pub. Safety v. Mendoza, 952 S.W.2d 560, 563 (Tex. App.-San Antonio 1997, no writ). Although he was aware that TDCJ opposed his petition and he had one month's notice that the court would rule on the petition by written submission, Jones submitted no affidavits or other documents to support his petition. Because the petition was not supported by any evidence, the trial court did not abuse its discretion in denying the petition for expunction. See Jackson, 132 S.W.3d at 716.
In his reply brief, Jones complains that the trial court did not conduct an oral hearing. Jones's original petition included a request for a hearing date and a motion for bench warrant or in the alternative for a hearing by conference call. On October 22, 2009, the trial court scheduled a hearing for December 21, 2009. After the District Attorney filed a general denial, Jones requested that the hearing be re-scheduled for a date in February 2010 so that Jones would have adequate time to collect supporting documentation. The District Attorney sent Jones a proposed agreed order of expunction but warned that another agency might object. On December 21, 2009, TDCJ filed a written opposition to the petition. Two days later TDCJ re-filed its objection with a proposed order denying expunction. On January 5, 2010, Jones filed a response to TDCJ's objection and submitted the agreed order to the trial court. On January 27, 2010, the District Attorney filed an amended answer with an attached proposed order of expunction and a notice that the petition for expunction of criminal records would be submitted to the trial court for a ruling, by written submission only, on February 26, 2010, at 9:00 a.m. On March 15, 2010, TDCJ filed an amended opposition. The trial court signed the order attached to TDCJ's original opposition on March 15, 2010. Jones filed a response to TDCJ's amended opposition on March 22, 2010. The response did not request an oral hearing or a re-setting of the written submission. Instead, Jones relied on his petition and the District Attorney's response to controvert the TDCJ's opposition.
The original petition includes a statement that the allegations of fact contained in the petition "are true and correct to the best of my knowledge[]" but the statement is neither sworn before a notary nor expressly made under penalty of perjury. See TEX. GOV'T CODE ANN. § 312.011(1) (Vernon 2005); TEX. CIV. PRAC. REM. CODE ANN. § 132.002 (Vernon 2005).
"Not every civil hearing necessarily requires a personal appearance before the court or an oral presentation to the court." Gross v. State, No. 09-06-00229-CV, 2006 WL 3377792, *3 (Tex. App.-Beaumont Nov. 22, 2006, no pet.) (mem. op.). In Gross, the record was not clear whether the trial court had considered the case on written submission. Id. We held that in the absence of a request the trial court was not required to schedule an oral hearing. Id. at *2-3. In this case, Jones initially requested either an oral hearing with personal attendance or attendance by telephone. After that initial request, Jones asked for a resetting to February, TDCJ filed a written opposition to Jones's petition, and the District Attorney sent a notice of submission "by written submission only." Jones had notice that the petition would be considered on the written submissions of the parties a month before the actual submission, and the trial court delayed its ruling for several more weeks. Jones relied solely upon his pleadings and the District Attorney's response notwithstanding the fact that Jones was aware that TDCJ opposed the petition and was challenging Jones's claim that the arrest had not resulted in a conviction. Jones neither objected to written submission of the expunction petition nor renewed his request for an oral hearing. Under these circumstances, the trial court did not abuse its discretion in considering the petition on written submission. We affirm the trial court's order denying Jones's petition for expunction.
TDCJ alleged that the particular arrest records Jones sought to have expunged resulted in a final conviction in another case. It appears the District Attorney and TDCJ disagreed about whether the two cases arose out of the same criminal episode because they either were committed in connected transactions or were the repeated commission of similar offenses. See TEX. PEN. CODE ANN. § 3.01 (Vernon 2003).
AFFIRMED.