Michael Ellis Roberts v. Texas Board of Pardons and Parole

Opinion issued June 16, 2011 In The Court of Appeals For The First District of Texas ———————————— NO. 01-09-01058-CV ——————————— Michael Ellis Roberts, Appellant V. Texas Department of Pardons and Parole, Appellee On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2009-36193 MEMORANDUM  OPINION Appellant, Michael Ellis Roberts, a pro se inmate, appeals the trial court’s judgment denying his petition for expunction of his criminal records. Roberts raises three issues in support of his appeal. We affirm. Background On June 8, 2008, Roberts filed a petition for expunction requesting the trial court to order the expunction of records and files related to 19 criminal offenses for which Roberts claims he was charged but never convicted. Roberts identified, inter alia, the Texas Board of Pardons and Paroles as a public entity possessing records and files that he sought to expunge. In his petition, Roberts requested that the matter be set for hearing. The Texas Board of Pardons and Paroles filed an opposition to the expunction petition. The Board argued, in part, that Roberts’s petition failed to include information statutorily required to effectuate an expunction. The Harris County District Attorney’s Office also filed a response to the petition for expunction. Without a hearing, the trial court signed a judgment denying Robert’s petition for expunction. Roberts filed a request for findings of fact and conclusions of law. The trial court denied Robert’s request. This appeal followed. In three issues, Roberts challenges the trial court’s judgment denying his petition for expunction of records. Denial of Petition for Expunction of Records In his first issue, Roberts challenges the trial court’s denial of his petition for expunction. Specifically, Roberts frames his issue as follows: “Trial court’s ruling rested necessarily on its notice of unspecified court records from another court, and disposing with [sic] an evidentiary hearing resulting in error.” In his second issue, Roberts complains that the “trial court erred in not providing a bench warrant or other alternative means so he could attend hearing [sic] denying his expunction petition.” We review a trial court’s decision on petition for expunction under an abuse of discretion. See Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). However, here, Roberts’s appellate arguments do not center on the trial court’s ruling on his petition; rather, Roberts complains of the procedural mechanics underlying the ruling. Roberts first complains that the trial court improperly took judicial notice “of unspecified court records from another court.” In support of this argument, Roberts cites the following language from the trial court’s judgment: “On this date came to be heard the petitioner’s petition for expunction. Having considered the pleadings, the responses and replies thereto, the Court is of the opinion that the petition for expunction should be denied in its entirety.” Unlike Roberts, we do not read this language to indicate that the trial court took judicial notice of another court’s records. A plain reading of the judgment’s language indicates that the trial court relied on the filings in this case relating to Robert’s expunction request, not those of another court. As Roberts acknowledges, a trial court may properly deny an appellant’s expunction request based on the contents of the court’s file when, for example, the petition fails to present any grounds for expunction. See Benner v. State, No. 02-07-00271-CV, 2008 WL 1932094, at *3 (Tex. App.—Fort Worth Jan. 1, 2008, pet. denied) (mem. op.). In a related argument, Roberts asserts that the trial court erred because it did not hold a hearing on his petition for expunction. The trial court is required to set a hearing on a petition for expunction. Tex. Code Crim. Proc. Ann. art. 55.02 § 2(c) (Vernon Supp. 2010); Tex. Dep’t. of Pub. Safety v. Borhani, No. 03-08-00142-CV, 2008 WL 4482676, at *3 (Tex. App.—Austin 2008, Oct. 3, 2008, no pet.) (mem. op.); McCarroll v. Texas Dep’t of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002, no pet.). Such hearing, however, does not necessarily have to be an oral hearing. Borhani, 2008 WL 4482676, at *3; Ex parte Wilson, 224 S.W.3d 860, 863 (Tex. App.—Texarkana 2007, no pet.); Ex Parte Current, 877 S.W.2d 833, 839 (Tex. App.—Waco 1994, no writ); cf. Gulf Coast Inv. Corp. v. Nasa 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (providing that unless required by the express language or context of particular rule of civil procedure, the term “hearing” does not necessarily contemplate either a personal appearance before the court or an oral presentation to the court). A trial court may rule on an expunction petition without conducting an oral hearing and without considering live testimony if it has available the necessary proof to satisfy the various requirements of the statute. See Borhani, 2008 WL 4482676, at *3; Wilson, 224 S.W.3d at 863. In this case, the trial court had before it all the information necessary to deny Roberts’s expunction request. Roberts’s petition, on its face, did not comply with the basic requirements of Code of Criminal Procedure article 55.02, which lists the requirements for an expunction petition. See Tex. Code Crim. Proc. Ann. art. 55.02. Specifically, the statute requires that the petition contain the following information: (1) the petitioner’s: (A) full name; (B) sex; (C) race; (D) date of birth; (E) driver’s license number; (F) social security number; and (G) address at the time of the arrest; (2) the offense charged against the petitioner; (3) the date the offense charged against the petitioner was alleged to have been committed; (4) the date the petitioner was arrested; (5) the name of the county where the petitioner was arrested and if the arrest occurred in a municipality, the name of the municipality; (6) the name of the agency that arrested the petitioner; (7) the case number and court of offense; and (8) a list of all law enforcement agencies . . . and other officials or agencies or other entities of this state . . . that the petitioner has reason to believe have records or files that are subject to expunction. Tex. Code Crim. Proc. Ann. art. 55.02, § 2(b). In an expunction proceeding, the procedures listed in article 55.02 are mandatory, and a petitioner must comply with all of the enumerated requirements. Ex parte Jones, No. 10-10-00376-CV, 2011 WL 653182, *1 (Tex. App.—Waco Feb. 23, 2011, no. pet. h.) (citing Tex. Dep’t of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.—San Antonio 1997, no pet.)); see also Bargas v. State, 164 S.W.3d 763, 771 (Tex. App.—Corpus Christi 2005, no pet.) (“Where a cause of action is derived solely from a statute, the statutory provisions are mandatory, exclusive, and must be complied with or the action is not maintainable.”). A person’s entitlement to expunction arises only after all statutory conditions have been met, even if the person claims entitlement to expunction due to an acquittal. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet). The trial court must strictly comply with the statutory requirements and has no equitable power to extend the protections of the expunction statute beyond its stated provisions. Id.; see also Tex. Dep’t of Pub. Safety v. Woods, 68 S.W.3d 179, 182 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Here, Roberts’s expunction petition failed to include all of the information required by article 55.02, section 2(b). Specifically, the petition did not state Roberts’s address at the time he was arrested for each criminal offense, the county where he was arrested for each offense, or the name of the agency that arrested him. Although Roberts provided the “filing” date for each offense, it is unclear whether the stated filing dates correspond with the date each offense was charged against Roberts or whether it corresponds with the date of his arrest for each offense. It was within the trial court’s discretion to deny the expunction petition based on Roberts’s failure to provide the information required by article 55.02, section 2(b). See Jones, 2011 WL 653182 at *1 (holding that trial court did not abuse its discretion when it denied expunction petition because appellant had failed to verify his petition and had not provided his driver’s license number, his address at the time of his arrest, or the date that the offense charged was alleged to have been committed, as required by article 55.02). In other words, the trial court had before it the sufficient information to deny Roberts’s expunction petition for noncompliance with article 55.02, without the necessity of an oral hearing. Accordingly, the trial court did not err when it denied the expunction petition without an oral hearing. See Borhani, 2008 WL 4482676, at *3; Wilson, 224 S.W.3d at 863. Concomitantly, the trial court did not err, as asserted by Roberts in his second issue, in not issuing a bench warrant or providing “other alternative means” for Roberts to attend a hearing on the expunction petition. We overrule Roberts’s first and second issues. Findings of Fact and Conclusions of Law In his third issue, Roberts asserts that the trial court erred when it denied his request that the court file findings of fact and conclusions of law. A trial court is required, in certain circumstances, to file written findings of fact and conclusions of law if there is a request by a party. See Tex. R. Civ. P. 296, 297. There is no “duty on [a] trial court to file findings of fact or conclusions of law where there has been no trial.” Teague v. Livingston, No. 01-10-00075-CV, 2010 WL 4056853, at *2 (Tex. App.—Houston [1st Dist.] Oct. 14, 2010, no pet.) (mem. op.) (citing Kendrick v. Lynaugh, 804 S.W.2d 153, 156 (Tex. App.—Houston [14th Dist.] 1990, no pet.); Kaminetzky v. Park Nat’l Bank of Houston, No. 01-03-01079-CV, 2005 WL 267665, at *5 (Tex. App.—Houston [1st Dist.] Feb. 3, 2005, no pet.) (mem. op.)). “When judgment is entered on the pleadings, requests for findings and conclusions ‘can have no purpose, should not be filed, and if filed, should be ignored by the trial court.’” Teague, 2010 WL 4056853, at *2 (quoting IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex. 1997)); see also White v. State, No. 12-09-00342-CV, 2011 WL 684660, at *4 (Tex. App.—Tyler Feb. 28, 2011, no pet. h.) (mem. op.) (holding that Rules 296 and 297 do not apply in inmate suit that is dismissed for failure to comply with pleading requirements of Chapter Fourteen of Civil Practices and Remedies Code). As it noted in its order denying Roberts’s request for findings of fact and conclusions of law, the trial court denied Roberts’s expunction petition without a trial and without holding an evidentiary hearing. As a result, the trial court was not required to file findings of fact and conclusions of law. We hold that the trial court did not err in denying Roberts’s request for findings of fact and conclusions of law. We overrule Roberts’s third issue. Conclusion We affirm the judgment of the trial court.[1] Laura Carter Higley Justice Panel consists of Justices Higley, Brown, and Bennett.[2] [1] Roberts attached an exhibit to his brief and separately filed other documents that were not part of the appellate record. With limited exceptions not relevant here, an appellate court may not consider matters outside the appellate record. Bencon Mgmt. & Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The attachment of documents as exhibits or appendices to briefs is not formal inclusion in the record on appeal; therefore, we cannot consider the documents filed by Roberts that are not included in the record. See Sowell v. The Kroger Co., 263 S.W.3d 36, 38 (Tex. App.—Houston [1st Dist.] 2006, no pet.). [2] The Honorable Alfred H. Bennett, Judge of the 61st District Court of Harris County, participating by assignment.