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In=20 The For=20 The
DONALD =
C. JACKSON,=20
Appellant TEXAS =
BOARD OF=20
PARDONS AND PAROLES, HARRIS COUNTY SHERIFF'S OFFICE, HOUSTON =
POLICE=20
DEPARTMENT, AND HARRIS COUNTY DISTRICT CLERK,=20
Appellees
On =
Appeal from the=20
133rd District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2002-51048
MEMORANDUM=20
OPINION The trial =
court=20
dismissed appellant Donald C. Jackson's lawsuit to expunge his =
record for=20
want of prosecution. We reverse and =
remand. On August 18, 1994, Jackson was =
arrested=20
and charged with misdemeanor assault. In October 1994, the =
assistant=20
district attorney requested that the trial court dismiss the =
charges=20
against Jackson because of a missing witness. The trial court =
dismissed=20
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=20
Texas Code of Criminal Procedure article 55.01. In April 2003, the trial court =
sent to=20
all counsel and pro se parties a notice of the disposition =
deadline. This=20
notice informed Jackson that the trial court had designated May =
19, 2003=20
as the disposition deadline for his case and that the case would =
be=20
dismissed for want of prosecution if Jackson did not have it set =
and heard=20
by that date. The notice also directed Jackson to contact the =
court=20
coordinator to obtain a hearing date or to ask any questions. =
After=20
receiving this letter, Jackson filed a motion to set this case for =
hearing=20
with the trial court, explaining his status as an incarcerated =
inmate and=20
asking the trial court to set his case for a hearing. Jackson also =
sent a=20
letter to the court coordinator outlining the measures he had =
taken to=20
prosecute his case and asking, "[W]hat else can I do?" Jackson =
sent=20
another letter, dated May 15, 2003, to the trial court outlining =
the=20
documents he had already submitted to the trial court and =
expressing his=20
belief that he was entitled to a hearing. On May 30, 2003, the trial =
court signed=20
the order of dismissal, which stated in its entirety, "For failure =
to=20
comply with the notice dated 04-15-2003/TRCP165A, this cause is =
ordered=20
dismissed for want of prosecution. Costs of court are assessed =
against the=20
plaintiff(s)." The appellate record shows that the case was never =
set for=20
a hearing and that the trial court gave no notice to any of the =
appellees.=20
On June 20, 2003, Jackson filed a motion to reinstate his case =
with the=20
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=20
Jackson's case and did not provide any findings of fact or =
conclusions of=20
law. Jackson filed a notice of appeal on August 11, =
2003. In two points of error, Jackson =
argues=20
that the trial court abused its discretion in dismissing his suit =
without=20
setting a hearing on his petition and in denying his motion to =
reinstate=20
the lawsuit without conducting a hearing. Article 55.02 controls the =
procedure for=20
expunction. Tex. Code Crim. Proc. Ann. art. 55.02 (Vernon 2006). =
The=20
person who is entitled to expunction of records must file a =
verified=20
petition that includes the required information in a district =
court for=20
the county where the petitioner was arrested or in the county =
where the=20
offense was alleged to have occurred. Id. art. 55.02 =A7 =
2(a), (b).=20
Article 55.02 further provides, "The court shall set a hearing on =
the=20
matter no sooner than thirty days from the filing of the petition =
and=20
shall give to each official or agency or other entity named in the =
petition reasonable notice of the hearing. . . ." Id. =
art. 55.02=20
=A7 2(c). An expunction hearing is a civil proceeding. Tex. =
Dep't of=20
Pub. Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. =
App.--Houston=20
[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=20
693, 696 (Tex. App.--Houston [1st Dist.] 2004, no pet.). A trial =
court may=20
dismiss for want of prosecution either under its inherent power or =
under=20
rule 165a of the Texas Rules of Civil Procedure. Villarreal v. =
San=20
Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); =
see=20
Tex. R. Civ. P. 165a. A party is entitled to notice and an=20
opportunity to be heard before a court may dismiss a case for want =
of=20
prosecution. Villarreal, 994 S.W.2d at 630. Here, Jackson filed his =
petition in the=20
trial court on September 30, 2002. The trial court never set the =
matter=20
for a hearing and never gave the officials or agencies named in =
the=20
petition notice of the hearing as required by Article 55.02, =
section 2(c)=20
of the Texas Code of Criminal Procedure. See Tex. Code =
Crim.=20
Proc. Ann. art. 55.02 =A7 2(c). Jackson made repeated attempts to =
contact=20
the trial court regarding the setting of a hearing for his =
expunction=20
petition, and the trial court failed to respond. See In re=20
Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003) ("It is =
well-established that=20
litigants cannot be denied access to the courts simply because =
they are=20
inmates.") (citing Hudson v. Palmer, 468 U.S. 517, 523, =
104 S.=20
Ct. 3194, 3198 (1984)). The trial court did not follow the express =
provisions of the expunction statute, which required it to set the =
matter=20
for a hearing. See Tex. Code Crim. Proc. Ann. art. 55.02 =
=A7 2(c).=20
Furthermore, the trial court did not respond to Jackson's repeated =
attempts to contact it following his receipt of the notice of =
disposition=20
deadline sent in April 2003, thereby denying Jackson his right to =
be heard=20
before the matter was dismissed for want of prosecution. See=20
Villarreal, 994 S.W.2d at 630. Therefore, the trial court =
abused its=20
discretion in dismissing Jackson's suit without setting a hearing =
on his=20
petition. See Wright, 137 S.W.3d at 696. We sustain Jackson's first =
point of=20
error. We remand this cause to the =
trial court=20
for further proceedings consistent with this opinion. Therefore, =
we do not=20
address Jackson's second point of error regarding the trial =
court's denial=20
of his motion to reinstate the cause. See Tex. R. App. P. =
47.1. We reverse the order of the =
trial court=20
dismissing Jackson's suit for want of prosecution and remand the =
cause to=20
the trial court for further proceedings consistent with this=20
opinion. Evelyn V. Keyes Justice Panel consists of Justices =
Taft, Keyes,=20
and Alcala.=20
1. There are two additional cause numbers =
related to=20
this cause of action that are still pending in this Court. Jackson =
filed a=20
second petition for expunction in the trial court in 2006, and =
trial court=20
also dismissed that case for want of prosecution on November 30, =
2006,=20
which resulted in cause number 01-07-00163-CV. Jackson also filed =
an=20
affidavit of indigency with his second appeal, which the district =
clerk=20
challenged. The trial court sustained the challenge, and Jackson =
filed=20
another notice of appeal challenging the court's order, resulting =
in cause=20
number 01-07-00280-CV. We have not received any records or briefs =
in=20
either of these two cause numbers.=20
2. None of the appellees have submitted a =
brief=20
because they were never served with notice of the cause below by =
the trial=20
court. See Tex. Code Crim. Proc. Ann. art. 55 =A7 2(c) =
(Vernon=20
2005) (requiring the trial court to give each official or agency =
or other=20
governmental entity named in the petition reasonable notice of the =
hearing). The Texas Rules of Appellate Procedure do not require =
that=20
appellees file a brief, but the rules do provide, "In a civil =
case, the=20
court will accept as true the facts stated [in appellant's brief] =
unless=20
another party contradicts them." Tex. R. App. P. 38.1(f). After =
giving=20
appellees notice, we set this cause for submission without their =
briefs.=20
3. See Tex. Code Crim. Proc. Ann. =
art. 55.01=20
(Vernon 2006). |