Cases from the First and Fourteenth Court of Appeals

Tx DPS v. Dahlquist (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Keyes)
(
expunction reversed in restricted appeal)
Appellant, the Texas Department of Public Safety (DPS), appeals an order expunging appellee Sharon R. Dahlquist’s
arrest for theft. Footnote Appellee filed her petition for expunction on December 13, 2007, and the trial court granted the
petition on January 18, 2008. DPS filed a restricted appeal. In its sole issue, DPS contends that appellee was not
entitled to expunction under article 55.01 of the Texas Code of Criminal Procedure because she received deferred
adjudication probation for the theft offense that she sought to expunge. We reverse the judgment of the trial court and
render judgment denying Dahlquist’s petition for expunction of her theft charge.
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Justice Evelyn Keyes     
Before Justices Keyes, Sharp and Massengale
01-08-00559-CV  Texas Department of Public Safety v. Sharon R. Dahlquist    
Appeal from 1st District Court of Jasper County
Trial Court Judge:  Judge Joe Bob Golden

Dyer v. Tex. Bd. of Pardons and Paroles (pdf) (Tex.App.- Houston [1st Dist.] Jan. 14, 2009)(Bland)
(
petition for expunction of an arrest record pursuant to Chapter 55 of the Texas Code of Criminal
Procedure,Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon Supp. 2009), finality issue, DWOJ)
The trial court signed an order sustaining the district clerk’s contest to Fredrick Dyer’s affidavit of indigency.  On appeal,
Dyer requests that we reverse the trial court’s order and allow him to proceed as indigent in the trial court.  We dismiss
the appeal for want of jurisdiction because the trial court’s order sustaining the contest to Dyer’s affidavit of indigency is
neither final nor appealable.
DISMISS APPEAL: Opinion by Justice Bland  
Before Chief Justice Radack, Justices Bland and Massengale   
01-08-00884-CV  Fredrick Dwayne Dyer v. Texas Board of Pardons and Paroles   
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Patricia J. Kerrigan

Forward v. Texas Board of Pardons and Parole (pdf) (Tex.App.- Houston [1st Dist.] Dec. 17, 2009)
(Alcala)
Appellant, John Patrick Forward, appeals the trial court's order that dismissed for want of prosecution his petition for
expunction of records. In two issues, Forward contends the court abused its discretion in dismissing his expunction
petition for want of prosecution because the trial court did not give Forward adequate notice that his petition would be
dismissed for failure to prosecute his case, and he proved each of the requirements for having his record expunged. We
conclude the trial court did not give adequate notice to Forward of its intent to dismiss the case. We, therefore, reverse
and remand the case to the trial court.
REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER
PROCEEDINGS:
Opinion by
Justice Elsa Alcala    
Before Justices Keyes, Alcala and Hanks   
01-07-00914-CV  John Patrick Forward v. Texas Board of Pardons and Parole   
Appeal from 80th District Court of Harris County
Trial Court Judge:
Hon. Lynn Bradshaw-Hull

Ex Parte S.C. (pdf)(Tex.App.- Houston [14th Dist.] Dec. 8, 2009)(Seymore)(expunction appeal)
Appellant, Texas State Securities Board appeals from an expunction order concerning files and records relating to
appellee, S.C.  In its sole issue, the Board contends the order is broader than authorized by the statute governing
expunction.  Because we agree, we modify the order and affirm as modified.
AFFIRMED AS MODIFIED: Opinion by Justice Seymore    
Before Justices Seymore, Brown and Boyce   
14-08-00381-CV  Ex Parte S.C   
Appeal from 189th District Court of Harris County
Trial Court Judge:
Bill Burke

TDPS v JHJ (Tex.App.- Houston [14th Dist.] Nov. 13, 2008)(Brown) (expunction denied)
REVERSED AND RENDERED: Opinion by Justice Brown  
Before Justices Anderson, Hudson and Brown
14-06-00949-CV        Texas Department of Public Safety v. J.H.J.
Appeal from 268th District Court of Fort Bend County
Trial Court Judge: Brady G. Elliott

Jackson v. Tx. Bd. of Pardons and Paroles (Tex. App. - Houston [ 1st Dist.] Apr. 3, 2008)(Keyes)
(suit  to expunge arrest records improperly dismissed, no hearing set)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS: Opinion by
Justice Keyes
Before Justices Taft, Keyes and Alcala
01-03-00862-CV Donald C. Jackson v. Texas Board of Pardons and Paroles, et al.
Appeal from 133rd District Court of Harris County
Trial Court Judge:
Hon. Lamar McCorkle  

Texas Department of Public Safety v. Collmorgen (Tex.App.- Houston [14th Dist.] Mar. 22, 2007)(Fowler)
[
expungement denied, dismissal of indictment based on complaining witness's request not sufficient]
REVERSED AND RENDERED: Opinion by Justice Fowler
(Before Chief Justice Hedges, Justices Fowler and Edelman)
14-06-00478-CV Texas Department of Public Safety v. Jeremy Collmorgen
Appeal from 9th District Court of Waller County

Jackson v. Tx. Bd. of Pardons and Paroles (Tex. App. - Houston [ 1st Dist.] Apr. 3, 2008)(Keyes)
(suit  to expunge arrest records improperly dismissed, no hearing set)

MEMORANDUM OPINION

The trial court dismissed appellant Donald C. Jackson's lawsuit to expunge his record for want of prosecution. (1) In two
points of error, Jackson argues that (1) the trial court abused its discretion in dismissing his suit without setting a
hearing on his petition and (2) the trial court abused its discretion in denying Jackson's motion to reinstate the lawsuit
without conducting a hearing. (2)

We reverse and remand.

Background

On August 18, 1994, Jackson was arrested and charged with misdemeanor assault. In October 1994, the assistant
district attorney requested that the trial court dismiss the charges against Jackson because of a missing witness. The
trial court dismissed the misdemeanor assault charges. Jackson was incarcerated on other unrelated crimes. On
September 30, 2002, Jackson filed an ex parte petition seeking to expunge the record of his 1994 arrest pursuant to
Texas Code of Criminal Procedure article 55.01. (3) In December 2002, Jackson filed a writ of habeas corpus ad
testificandum, or, in the alternative, a request for a conference call hearing. The trial court failed to rule on this request.

In April 2003, the trial court sent to all counsel and pro se parties a notice of the disposition deadline. This notice
informed Jackson that the trial court had designated May 19, 2003 as the disposition deadline for his case and that the
case would be dismissed for want of prosecution if Jackson did not have it set and heard by that date. The notice also
directed Jackson to contact the court coordinator to obtain a hearing date or to ask any questions. After receiving this
letter, Jackson filed a motion to set this case for hearing with the trial court, explaining his status as an incarcerated
inmate and asking the trial court to set his case for a hearing. Jackson also sent a letter to the court coordinator outlining
the measures he had taken to prosecute his case and asking, "[W]hat else can I do?" Jackson sent another letter, dated
May 15, 2003, to the trial court outlining the documents he had already submitted to the trial court and expressing his
belief that he was entitled to a hearing.

On May 30, 2003, the trial court signed the order of dismissal, which stated in its entirety, "For failure to comply with the
notice dated 04-15-2003/TRCP165A, this cause is ordered dismissed for want of prosecution. Costs of court are
assessed against the plaintiff(s)." The appellate record shows that the case was never set for a hearing and that the trial
court gave no notice to any of the appellees. On June 20, 2003, Jackson filed a motion to reinstate his case with the trial
court. Jackson also filed a request for findings of fact and conclusions of law. The trial court never ruled on the motion to
reinstate Jackson's case and did not provide any findings of fact or conclusions of law. Jackson filed a notice of appeal
on August 11, 2003.

Analysis

In two points of error, Jackson argues that the trial court abused its discretion in dismissing his suit without setting a
hearing on his petition and in denying his motion to reinstate the lawsuit without conducting a hearing.

Article 55.01 of the Code of Criminal Procedure controls the right of a person who has been arrested for commission of
either a felony or misdemeanor to have "all records and files relating to the arrest expunged." Tex. Code Crim. Proc. Ann.
art. 55.01(a) (Vernon 2006); Tex. Dep't of Pub. Safety v. Woods, 68 S.W.3d 179, 181-82 (Tex. App.--Houston [1st Dist.]
2002, no pet.). The purpose of Article 55.01 is to allow wrongfully arrested persons a fresh start. Woods, 68 S.W.3d at
182; see also Carson v. State, 65 S.W.3d 774, 780 (Tex. App.--Fort Worth 2001, no pet.) ("The object sought to be
attained by the enactment of the expunction statute was to give a fresh start to individuals wrongly charged with an
offense. . . . Thus, the expunction statute is remedial in nature and should be given the most comprehensive
construction possible.") (citing State v. Arellano, 801 S.W.2d 128, 130 (Tex. App.--San Antonio 1990, no writ)).

Article 55.02 controls the procedure for expunction. Tex. Code Crim. Proc. Ann. art. 55.02 (Vernon 2006). The person who
is entitled to expunction of records must file a verified petition that includes the required information in a district court for
the county where the petitioner was arrested or in the county where the offense was alleged to have occurred. Id. art.
55.02 § 2(a), (b). Article 55.02 further provides, "The 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 entity named in the petition reasonable
notice of the hearing. . . ." Id. art. 55.02 § 2(c). An expunction hearing is a civil proceeding. Tex. Dep't of Pub. Safety v.
Katopodis, 886 S.W.2d 455, 458 (Tex. App.--Houston [1st Dist.] 1994, no writ).

We review a trial court's order dismissing a case for want of prosecution for abuse of discretion. Wright v. Tex. Dep't of
Criminal Justice-Inst. Div., 137 S.W.3d 693, 696 (Tex. App.--Houston [1st Dist.] 2004, no pet.). A trial court may dismiss
for want of prosecution either under its inherent power or under rule 165a of the Texas Rules of Civil Procedure. Villarreal
v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); see Tex. R. Civ. P. 165a. A party is entitled to notice and
an opportunity to be heard before a court may dismiss a case for want of prosecution. Villarreal, 994 S.W.2d at 630.

Here, Jackson filed his petition in the trial court on September 30, 2002. The trial court never set the matter for a hearing
and never gave the officials or agencies named in the petition notice of the hearing as required by Article 55.02, section 2
(c) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.02 § 2(c). Jackson made repeated
attempts to contact the trial court regarding the setting of a hearing for his expunction petition, and the trial court failed to
respond. See In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) ("It is well-established that litigants cannot be denied access
to the courts simply because they are inmates.") (citing Hudson v. Palmer, 468 U.S. 517, 523, 104 S. Ct. 3194, 3198
(1984)). The trial court did not follow the express provisions of the expunction statute, which required it to set the matter
for a hearing. See Tex. Code Crim. Proc. Ann. art. 55.02 § 2(c). Furthermore, the trial court did not respond to Jackson's
repeated attempts to contact it following his receipt of the notice of disposition deadline sent in April 2003, thereby
denying Jackson his right to be heard before the matter was dismissed for want of prosecution. See Villarreal, 994 S.W.
2d at 630. Therefore, the trial court abused its discretion in dismissing Jackson's suit without setting a hearing on his
petition. See Wright, 137 S.W.3d at 696.

We sustain Jackson's first point of error.

We remand this cause to the trial court for further proceedings consistent with this opinion. Therefore, we do not address
Jackson's second point of error regarding the trial court's denial of his motion to reinstate the cause. See Tex. R. App. P.
47.1.

Conclusion

We reverse the order of the trial court dismissing Jackson's suit for want of prosecution and remand the cause to the trial
court for further proceedings consistent with this opinion.

Evelyn V. Keyes

Justice

Panel consists of Justices Taft, Keyes, and Alcala.

1. There are two additional cause numbers related to this cause of action that are still pending in this Court. Jackson
filed a second petition for expunction in the trial court in 2006, and trial court also dismissed that case for want of
prosecution on November 30, 2006, which resulted in cause number 01-07-00163-CV. Jackson also filed an affidavit of
indigency with his second appeal, which the district clerk challenged. The trial court sustained the challenge, and
Jackson filed another notice of appeal challenging the court's order, resulting in cause number 01-07-00280-CV. We
have not received any records or briefs in either of these two cause numbers.

2. None of the appellees have submitted a brief because they were never served with notice of the cause below by the
trial court. See Tex. Code Crim. Proc. Ann. art. 55 § 2(c) (Vernon 2005) (requiring the trial court to give each official or
agency or other governmental entity named in the petition reasonable notice of the hearing). The Texas Rules of
Appellate Procedure do not require that appellees file a brief, but the rules do provide, "In a civil case, the court will
accept as true the facts stated [in appellant's brief] unless another party contradicts them." Tex. R. App. P. 38.1(f). After
giving appellees notice, we set this cause for submission without their briefs.

3. See Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon 2006).
Expunction Cases from Houston Courts of Appeals
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