Texas Department of Public Safety v. Carter Allen Robinson

NUMBER 13-06-525-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. CARTER ALLEN ROBINSON, Appellee. On appeal from the 370th District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Rodriguez The Texas Department of Public Safety (TDPS) brings this restricted appeal from an order expunging Carter Allen Robinson's criminal records. See Tex. R. App. P. 30. Because the trial court did not comply with the statutory requirements for expunction, we reverse and set aside the order of expunction. I. Restricted Appeal 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) (per curiam); Tex. Dep't of Pub. Safety v. Panngasiri, 945 S.W.2d 276, 277 (Tex. App.-El Paso 1997, no writ). TDPS was a party to the suit and, on September 18, 2006, mailed its notice of appeal that was filed on September 22, 2006--within six months of the trial court's March 20, 2006 expunction order. See Tex. R. App. P. 9.2(b) (providing that a document is timely filed if received within ten days after the filing deadline and, among other things, is deposited in the mail on or before the last day for filing). Further, TDPS did not participate in the trial. Thus, we must determine whether error is apparent from the face of the record. II. Factual and Procedural Background According to the record, Robinson filed his petition for expunction on January 17, 2006. TDPS was one of six agencies listed that was entitled to notice of the expunction hearing. The trial court set the expunction hearing for March 20, 2006; however, service of the petition and notice of the hearing were provided exclusively to the district attorney in a manner other than certified mail, return receipt requested. TDPS, as well as all other respondents, did not receive notice of the petition or the hearing on the petition. The trial court entered its order of expunction on March 20, 2006. III. Statutory Requirements for Expunction The right to an expunction is a statutory privilege not found in the common law or the constitution. Harris v. State, 733 S.W.2d 710, 711 (Tex. App.-San Antonio 1987, no writ). Where a cause of action is created by statute, all statutory provisions are mandatory and exclusive, and must be complied with to sustain the action. Harris County Dist. Attorney's Office v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.-Houston [14th Dist.] 1997, no pet.). This also applies to the procedures for obtaining an expunction set forth in article 55.02 of the Texas Code of Criminal Procedure. Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.-San Antonio 1997, no writ) (op. on reh'g) (en banc). Section 2(c) provides that "the 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 2006). IV. Analysis By a single issue, TDPS contends that because the trial court heard the matter without service of the petition or notice of the setting to all respondents to the petition, the order which resulted from the hearing should be set aside. We agree. It is apparent from the face of the record that the statutory conditions for expunction were not met. 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. TDPS's issue is sustained. V. 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 expunction order. (1) NELDA V. RODRIGUEZ Justice Memorandum Opinion delivered and filed this 9th day of August, 2007. 1. 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 Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam); 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 Hidalgo County Sheriff's Office, the Hidalgo County District Clerk's Office, the Edinburg Independent School District, Hidalgo County District Attorney's Office, and the Federal Bureau of Investigation.