Texas Department of Public Safety v. Oscar Manuel Solis, Jr.--Appeal from 341st Judicial District Court of Webb County

MEMORANDUM OPINION

No. 04-05-00114-CV

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Appellant

v.

Oscar Manuel SOLIS, Jr.,

Appellee

From the 341st Judicial District Court, Webb County, Texas

Trial Court No. 2004-CVQ-000857-D3

Honorable Andres Reyes, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 16, 2005

REVERSED AND RENDERED

The Texas Department of Public Safety (DPS) brings this restricted appeal from an order expunging the criminal record of Oscar Manuel Solis, Jr. On appeal, DPS asserts: (1) Solis produced no evidence that the charges against him had been dismissed for a reason indicating a lack of probable cause to believe he committed the offense; (2) Solis failed to produce evidence that he had not been convicted of a felony in the five years prior to his arrest; and (3) the trial court abused its discretion in setting a hearing without proper notice to all of the respondents listed in the petition. We reverse the judgment of the trial court and render judgment denying Solis s expunction request. Because we find DPS s first issue to be dispositive on appeal, we do not address the remaining issues.

Background

Solis was arrested and indicted for the felony offense of accident involving injury/death. The indictment was dismissed after Solis completed a pre-trial diversion program. Solis then filed a petition for expunction and set the matter for a hearing before the trial court for July 22, 2004. DPS filed an affirmative defense and original answer on July 12, 2004. On July 21, 2004, Solis s attorney and a Webb County assistant district attorney entered into a Rule 11 agreement resetting the hearing for August 30, 2004. DPS was not notified of the rescheduled date. At the August 30, 2004 hearing, the trial court granted Solis s petition and ordered his arrest and related indictment be expunged. DPS filed notice of restricted appeal.

Standard of Review For Restricted Appeal

To obtain reversal of an underlying judgment by restricted appeal, a party must satisfy the following elements: (1) a notice of restricted appeal must be filed within six months of the date of judgment; (2) by a party to the lawsuit; (3) who neither participated in the hearing that resulted in the judgment of which the party complains nor filed a timely post-judgment motion; and (4) error must be apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Flores v. Brimex Ltd. P ship, 5 S.W.3d 816, 819 (Tex. App. San Antonio 1999, no pet.). Each one of these elements is mandatory and jurisdictional. See C & V Club v. Gonzalez, 953 S.W.2d 755, 757 (Tex. App. Corpus Christi 1997, no writ). Here, DPS filed a notice of restricted appeal within six months of the date of judgment, was a party to the lawsuit, and did not participate in the hearing that resulted in the order of expunction. Thus, we turn to whether any error is apparent on the face of the record.

Right to Expunction Under Article 55.01

To be entitled to expunction when criminal charges are dismissed, the petitioner must show that each of the following conditions exists: (A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and; (i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or (ii) the court finds the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void; (B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and (C) the person had not been convicted of a felony in the five years proceeding the date of the arrest. Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)-(C) (Vernon Supp. 2004-2005) (emphasis added).

A statutory expunction proceeding is civil rather than criminal in nature. Smith v. Millsap, 702 S.W.2d 741, 743 (Tex. App. San Antonio 1985, no writ). The petitioner bears the burden of proving compliance with all of the statutory requirements. Harris v. State, 733 S.W.2d 710, 711 (Tex. App. San Antonio 1987, no writ); Texas Dep t of Pub. Safety v. Moran, 949 S.W.2d 523, 526 (Tex. App. San Antonio 1997, no writ). The purpose of article 55.01 is to enable persons who are wrongfully arrested to expunge their arrest record. Harris County Dist. Attorney s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991); Perdue v. Texas Dep t of Pub. Safety, 32 S.W.3d 333, 335 (Tex. App. San Antonio 2000, no pet.).It is apparent from the face of the record that at least one of the statutory requirements for obtaining an expunction of arrest records is not present. The record contains no evidence to establish that the indictment was dismissed because of mistake, false information, or similar reason to indicate lack of probable cause that Solis committed the offense of accident involving injury/death. Solis alleged in his amended petition that he was entitled to expunction because the indictment was dismissed due to his referral to the pretrial diversion program, not because he was wrongfully arrested. That reason does not authorize expunction under the statute. See Texas Dep t of Pub. Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex. App. Houston [1st Dist.] 1994, no writ) (holding that completion of pretrial intervention was no evidence to prove that petitioner s indictment was dismissed due to absence of probable cause to believe petitioner committed the offense); but see Baker v. Texas Dep t of Pub. Safety, No. 03-00-00441-CV, 2001 WL 491162, *1 (Tex. App. Austin May 10, 2001, no pet.) (not designated for publication) (noting that pretrial diversion is a sufficient basis for expunction of misdemeanor, not felony, charges). Moreover, at the expunction hearing, no evidence was presented to establish that Solis s indictment was dismissed due to a lack of probable cause that he committed the charged offense. // Because he did not prove that his indictment was dismissed due to mistake, false information, or other similar reason indicating an absence of probable cause to believe he committed the offense of accident involving injury/death, Solis was not entitled to an expunction. We sustain issue number one.

Conclusion

We reverse the trial court s expunction order and render judgment denying Solis s petition for expunction.

Alma L. L pez, Chief Justice

No. 04-05-00114-CV

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Appellant

v.

Oscar Manuel SOLIS, Jr.,

Appellee

From the 341st Judicial District Court, Webb County, Texas

Trial Court No. 2004-CVQ-000857-D3

Honorable Andres Reyes, Judge Presiding

BEFORE CHIEF JUSTICE L PEZ, JUSTICE STONE, AND JUSTICE SPEEDLIN

In accordance with this court s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED denying the petition for expunction filed by Oscar Manuel Solis, Jr. in the underlying cause. It is ORDERED that appellant, Texas Department of Public Safety, recover its costs of this appeal from appellee, Oscar Manuel Solis, Jr. It is further ORDERED that all documents turned over to the trial court or to the appellee be returned to the submitting agencies.

SIGNED

Alma L. L pez

Chief Justice