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TEXAS DEPT OF PUB SAF v. PRATHER

Court of Appeals of Texas, Fourth District, San Antonio
May 12, 2004
No. 04-03-00612-CV (Tex. App. May. 12, 2004)

Opinion

No. 04-03-00612-CV.

Delivered and Filed: May 12, 2004.

Appeal from the 112th Judicial District Court, Sutton County, Texas, Trial Court No. 4997, Honorable Brock Jones, Jr., Judge Presiding.

Reversed; Expunction Order Set Aside.

Sitting: Alma L. LÓPEZ, Chief Justice, Paul W. GREEN, Justice, Karen ANGELINI, Justice.


MEMORANDUM OPINION


The Texas Department of Public Safety ("TDPS") brings this restricted appeal from an order expunging George Allan Prather's criminal records. Because the trial court did not comply with the statutory requirements for expunction, we reverse and set aside the order of expunction.

Restricted Appeal Standard of Review

A restricted appeal is only available to a party "who did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a)." Tex.R.App.P. 30. The appeal must be brought within six months after the date of judgment by a party to the suit who did not participate in the trial, and error must be apparent from the face of the record. See Quaestor Invs. Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999); Campbell v. Fincher, 72 S.W.3d 723, 724 (Tex. App.-Waco 2002, no pet.). The TDPS was a party to the suit and filed its notice of appeal within six months of the trial court's expunction order. Further, the TDPS did not participate in the trial. Thus, we must determine whether error is apparent from the face of the record.

Factual and Procedure Background

According to the record, on January 22, 2003, George Allan Prather filed his petition for expunction. The TDPS was one of four agencies listed that was entitled to notice of the expunction hearing. The trial court set the expunction hearing for February 14, 2003; however, the TDPS did not receive notice of the hearing until February 20, 2003. The trial court entered its order of expunction on February 20, 2003. In one issue on appeal, the TDPS argues that the trial court abused its discretion in setting a hearing on the petition for expunction less than thirty days after the petition was filed and in holding a hearing without notice to all parties listed in the petition.

Statutory Requirements for Expunction

The procedural requirements for expunction are set forth in article 55.02 of the Texas Code of Criminal Procedure. Section 2(c) 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 reasonable notice of the hearing to each . . . agency . . . named in the petition by certified mail, return receipt requested, and such entity may be represented by [its] attorney." Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c) (Vernon Supp. 2004). Because the right to expunction is a statutory privilege, all statutory provisions are mandatory and exclusive and must be complied with. Harris County Dist. Atty. v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.-Houston [14th Dist.] 1997, no pet.); Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex.App. — San Antonio 1997, no writ). Therefore, expunction will be upheld only when all statutory conditions are met. Lacafta, 965 S.W.2d at 569.

Discussion

It is apparent from the face of the record that the statutory conditions for expunction were not met. The trial court set the hearing less than thirty days from the filing of the petition and the TDPS did not receive notice of the hearing until after the trial court held the hearing. In fact, the TDPS received notice of the hearing on the day the trial court signed the expunction order. Where the record does not show that the agency was given notice in accordance with the expunction statute, the proceeding was conducted in violation of the statute and the expunction order must be set aside. Deck, 954 S.W.2d at 112; Rodriguez v. T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.-San Antonio 1991, no writ); Tex. Dep't of Pub. Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.-San Antonio 1989, no writ). We conclude that the face of this record reflects a proceeding in direct violation of the statute. Accordingly, we reverse and set aside the expunction order.

We note that when an expunction order is reversed and set aside, it is reversed and set aside as to all agencies in possession of relevant criminal records. Ex parte Elliott, 815 S.W.2d 251, 252 (Tex. 1991); Tex. Dep't of Pub. Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. App.-Houston [1st Dist.] 1994, no writ). Thus, in this case, we reverse and set aside the order as to the Texas Department of Public Safety, the Sutton County Sheriff's Department, the Sonora Police Department, and the Office of the District Attorney in Fort Stockton, Texas.

Conclusion

Because the record reflects that the proceeding was conducted in direct violation of the statute, we reverse and set aside the trial court's order.


Summaries of

TEXAS DEPT OF PUB SAF v. PRATHER

Court of Appeals of Texas, Fourth District, San Antonio
May 12, 2004
No. 04-03-00612-CV (Tex. App. May. 12, 2004)
Case details for

TEXAS DEPT OF PUB SAF v. PRATHER

Case Details

Full title:TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant v. GEORGE ALLAN PRATHER…

Court:Court of Appeals of Texas, Fourth District, San Antonio

Date published: May 12, 2004

Citations

No. 04-03-00612-CV (Tex. App. May. 12, 2004)

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