Timothy Dewayne Randle v. Galveston County District Clerk and Galveston County Sheriff's Office

Opinion issued December 9, 2010 In The Court of Appeals For The First District of Texas ——————————— NO. 01-09-00748-CV ——————————— Timothy Dewayne Randle, Appellant V. Galveston County DISTRICT Clerk and Galveston County Sheriff’s Office, Appellees On Appeal from the 405th District Court Galveston County, Texas Trial Court Case No. 09-CV-0101 MEMORANDUM OPINION Appellant Timothy Dewayne Randle appeals the trial court’s order dismissing his suit seeking expunction of his criminal records pursuant to article 55.01(b) of the Code of Criminal Procedure. On the motion of appellee, the Galveston County District Clerk, the trial court dismissed Randle’s suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies Code, concerning inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014 (Vernon 2002). On appeal, Randle contends that the trial court erred by failing to require the District Clerk and the Galveston County Sheriff’s Office to ensure that the Texas Department of Criminal Justice deleted an affirmative deadly weapon finding from his criminal records and by not holding a hearing before dismissing his suit. We conclude the trial court properly dismissed Randle’s suit because he is not entitled to expunction pursuant to article 55.01(b). Background Randle was convicted of attempting to take a weapon from a police officer and sentenced to life in prison. Randle v. State, No. 01-91-00793-CR, 1994 WL 168267, at *1 (Tex. App.—Houston [1st Dist.] May 5, 1994, pet. ref’d). The trial court made an affirmative deadly weapon finding. Id. Randle appealed, and this Court reformed the trial court’s judgment to delete the deadly weapon finding and affirmed the judgment as reformed. Id. at *9. Randle filed a petition for expunction under article 55.01(b) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.01(b) (Vernon Supp. 2010). Randle alleged that the Texas Department of Criminal Justice is calculating his eligibility for parole based upon an affirmative deadly weapon finding. He sought an order from the trial court requiring the Texas Department of Criminal Justice “and all of the law enforcement agencies and other officials that have records” of his conviction to delete the affirmative finding of a deadly weapon. The Galveston County District Clerk answered and, asserting that Randle’s suit had no basis in law because he did not meet the requirements of the expunction statute, moved to dismiss his suit as frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon 2002). The trial court granted the motion to dismiss. Analysis In his first and second issues, Randle contends that the trial court erred by failing to grant his petition for expunction and by failing to require the Galveston Sheriff’s Office or Galveston District Clerk to ensure that the Texas Department of Criminal Justice removed the deadly weapon finding from Randle’s record. Chapter 14 of the Texas Civil Practice and Remedies Code, entitled “Inmate Litigation,” applies to a lawsuit brought by an inmate who files an affidavit or unsworn declaration of inability to pay in order to avoid costs. Tex. Civ. Prac. & Rem. Code Ann. § 14.002 (Vernon 2002). Under Chapter 14, a trial court may dismiss such an inmate’s lawsuit that is malicious or frivolous. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2). To determine whether a lawsuit is malicious or frivolous, a court may consider whether: (1) the claim’s realistic chance of ultimate success is slight; (2) the claim has no arguable basis in law or in fact; (3) it is clear that the party cannot prove facts in support of the claim; or (4) the claim is substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts. Id. § 14.003(b) (Vernon 2002). When a lawsuit is dismissed as frivolous for having no basis in law or in fact, but no fact hearing was held, we focus on whether the inmate’s lawsuit has an arguable basis in law, which we review de novo. Scott v. Galagher, 209 S.W.3d 262, 266 (Tex. App.—Houston 2006, no pet.). A claim has no arguable basis in law if it is an “indisputably meritless legal theory.” Minix v. Gonzales, 162 S.W.3d 635, 637 (Tex. App.—Houston [14th Dist.] 2005, no pet.). “In conducting our de novo review, we take as true the allegations of the inmate’s petition.” Scott, 209 S.W.3d at 266 (citing Long v. Tanner, 170 S.W.3d 752, 754 (Tex. App.—Waco 2005, pet. denied)). “In other words, we review the inmate’s petition to determine whether, as a matter of law, it stated a cause of action that would authorize relief.” Id. at 266­–67. A court may not dismiss an inmate’s lawsuit simply because it thinks that the inmate’s allegations are “unlikely.” Id. at 267 (citing Minix, 162 S.W.3d at 637). Randle sought expunction under article 55.01(b) of the Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.01(b). The right to expunction is a statutory privilege and, as such, all provisions of the statute “are mandatory and exclusive and a person is entitled to expunction only when all of the conditions have been met.” In re Expunction of A.R., 225 S.W.3d 643, 646 (Tex. App.—El Paso 2006, orig. proceeding). Article 55.01(b)(3) provides that a district court may expunge arrest records if a defendant is “acquitted by the court of criminal appeals.” Id. Randle was not acquitted by the Court of Criminal Appeals. Instead, this Court modified the judgment of conviction to delete the affirmative finding of a deadly weapon and affirmed the judgment as modified. Randle, 1994 WL 168267, at *9. This Court has previously decided that the plain language of the statute does not apply to an acquittal by this Court but only to an acquittal by the Court of Criminal Appeals. Harris County v. E.B.H., 95 S.W.3d 719, 721–22 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (citing Harris County Dist. Attorney’s Office v. Jimenez, 886 S.W.2d 521, 522–23 (Tex. App.—Houston [1st Dist.] 1994, writ denied)). Because Randle was not acquitted by the Court of Criminal Appeals, he is not eligible for expunction and his petition failed to state a cause of action that would authorize relief. See id.; see also In re Expunction of A.R., 225 S.W.3d at 647 (noting expunction not warranted unless all conditions of statute are met). We therefore hold that Randle’s petition for expunction under article 55.01(b) had no arguable basis in law and the trial court did not err by dismissing the suit. In his third issue, Randle contends that the trial court erred by dismissing his lawsuit without holding a hearing. A trial court has discretion to decide whether to hold a hearing when considering a motion to dismiss a suit pursuant to Chapter 14. Williams v. Brown, 33 S.W.3d 410, 411 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Tex. Civ. Prac. & Rem. Code Ann. § 14.003(c). Randle concedes that live testimony was not necessary, and we conclude the trial court did not err by deciding the motion to dismiss without a hearing. See Williams, 33 S.W.3d at 411. We overrule Randle’s three issues. Although we overrule his issues on appeal, we note that the thrust of Randle’s case appears to be that the Texas Department of Criminal Justice is improperly calculating his sentence. As suggested in the appellees’ brief, a post-conviction application for a writ of habeas corpus appears to be an appropriate procedural means for Randle to pursue this claim. See Ex parte Gabriel, 56 S.W.3d 595, 595–96 (Tex. Crim. App. 2001) (citing Tex. Code Crim. Proc. art. 11.07). Conclusion We affirm the trial court’s order of dismissal. Michael Massengale Justice Panel consists of Chief Justice Radack and Justices Massengale and Nuchia.[*] [*] The Honorable Sam Nuchia, Senior Justice, Court of Appeals for the First District of Texas, participating by assignment.