Texas Department of Public Safety v. C.K.H.

In The Court of Appeals Ninth District of Texas at Beaumont ________________ NO. 09-08-00414-CV _____________________ TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant V. C.K.H., Appellee On Appeal from the 356th District Court Hardin County, Texas Trial Cause No. 49162 MEMORANDUM OPINION The Texas Department of Public Safety appeals an order of expunction. In two issues, the Department contends the trial court erred in granting the petition for expunction filed by the appellee, C.K.H., without notice to the Department and without evidence supporting the petition for expunction. C.K.H. concedes error. We set aside the order of expunction. The petition is not verified. See Tex. Code Crim. Proc. Ann. art. 55.02, sec. 2 (b) (Vernon Supp. 2008). In her petition, C.K.H. identifies six agencies, including the Department, that may have records that are subject to expunction. See Tex. Code Crim. Proc. Ann. art. 55.02, sec. 2 (b)(8). The petition states that a copy of the petition was hand-delivered to the Hardin County District Attorney. The trial court signed the order of expunction two days after the filing of the petition. The order does not indicate whether evidence was received, and the court reporter did not record the hearing. Upon receiving post-judgment notice of the filing of the petition, the Department appealed to this Court. Article 55.02 of the Texas Code of Criminal Procedure provides the mandatory procedure for expunging records and files relating to an arrest. See Tex. Code Crim. Proc. Ann. art. 55.02. The trial court abuses its discretion when it grants a petition for expunction without compliance with article 55.02. See State v. Taylor, 266 S.W.3d 553, 555 (Tex. App.--Tyler 2008, pet. denied). Article 55.02 requires the trial court to "set a hearing on the matter no sooner than thirty days from the filing of the petition" and also requires the trial court to "give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing . . . ." Tex. Code Crim. Proc. Ann. art. 55.02, sec. 2(c). In this case, the trial court signed the order within thirty days and without providing notice of the hearing to the interested entities before conducting the hearing. "If the record does not indicate that the agency was notified in accordance with the statute, then the record reflects a proceeding in violation of the statute and the expunction order must be set aside." Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.--San Antonio 1997, no writ). The order must be set aside in this case. The reversal of an expunction order is not limited to the appealing governmental entity but affects all agencies in possession of records and files. Ex parte Elliott, 815 S.W.2d 251, 252 (Tex. 1991). The trial court failed to comply with article 55.02 of the Texas Code of Criminal Procedure. Furthermore, the failure to record the hearing prevents the Department from presenting its challenge to the sufficiency of the evidence. See Tex. R. App. P. 44.1(a)(2). Accordingly, the order of expunction is set aside and the case is remanded to the trial court for further proceedings consistent with this opinion. REVERSED AND REMANDED. ____________________________ DAVID GAULTNEY Justice Submitted on April 13, 2009 Opinion Delivered May 14, 2009 Before McKeithen, C.J., Gaultney and Horton, JJ.