Ex Parte: Joel Eugene Staner--Appeal from 76th District Court of Titus County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-06-00088-CV
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EX PARTE: JOEL EUGENE STANER
On Appeal from the 76th Judicial District Court
Titus County, Texas
Trial Court No. 32069
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION

Joel Eugene Staner filed an application with the trial court to have an arrest removed from his criminal history. See generally Tex. Code Crim. Proc. Ann. arts. 55.01-.06 (Vernon Supp. 2006). The trial court granted the State's motion for summary judgment. We affirm.

I. Factual and Procedural Background

Staner filed an application for expunction seeking the removal of an arrest for aggravated sexual assault of a child, (1) for which Staner contends he was never prosecuted. The State responded by filing a general denial. The State also filed a motion for summary judgment that was accompanied by several certified documents. One of these documents shows Staner was arrested by the Mount Pleasant Police Department February 28, 1997, for aggravated sexual assault of a child, that offense allegedly occurring September 8, 1996. Another document shows a Titus County grand jury later returned an indictment March 5, 1997, in cause number 13,291 for two counts of indecency with a child. The indictment's first count was for an offense occurring on or about September 8, 1996, and involving a complainant with the pseudonym C.B. The second count was for an offense occurring on or before September 8, 1994, and involving a complainant with the pseudonym J.W. A third certified document attached to the State's motion for summary judgment shows Staner pled guilty April 14, 1997, in cause number 13,291--and that he did so pursuant to a negotiated plea agreement--to two counts of indecency with a child (one of which was for an offense occurring September 8, 1994; the other for an offense occurring September 8, 1996). Staner was sentenced to thirty years' imprisonment for each count. On August 1, 2006, the trial court granted the State's motion for summary judgment in this expunction proceeding.

II. Issues Presented and Analysis

Staner has not challenged the trial court's substantive determination that he is not entitled to expunction of his 1997 arrest. Instead, his appeal raises only procedural issues. Staner first seems to be arguing that a trial court may not hold a hearing on a motion for summary judgment filed within the context of an expunction proceeding. Staner cites no authority for such a contention. In his second and third points of error, Staner contends the trial court erred by failing to conduct a formal hearing on his expunction petition, asserting that such failure deprived him of an opportunity to respond to the State's motion for summary judgment.

"Individuals who are prison inmates do not automatically lose their access to the courts as a result of their incarcerated status. However, inmates, whether they are defendants or plaintiffs in civil actions, do not have an absolute right to appear in person." Ex parte Guajardo, 70 S.W.3d 202, 205 (Tex. App.--San Antonio 2001, no pet.) (citations omitted). Expunction proceedings are special types of lawsuits, statutorily authorized by Chapter 55 of the Texas Code of Criminal Procedure, but otherwise considered civil causes of action. See McCarroll v. Tex. Dep't of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.--Fort Worth 2002, no pet.); Tex. Dep't of Pub. Safety v. Katopodis, 886 S.W.2d 455, 457 (Tex. App.--Houston [1st Dist.] 1994, no writ). Because they are primarily civil, expunction proceedings are subject to the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 2 ("These rules shall govern the procedure . . . in all actions of a civil nature . . . ."). Our Rules of Civil Procedure authorize the filing of motions for summary judgment in civil cases. See Tex. R. Civ. P. 166a. A trial court may grant a motion for summary judgment, without the consideration of live testimony, if the pleadings and evidence before the court "show . . . there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion . . . ." Tex. R. Civ. P. 166a(c).

In this case, the trial court granted the State's motion for summary judgment on the issue that Staner was, as a matter of law, not entitled to have the arrest at issue expunged from his criminal arrest record. As our Rules of Civil Procedure specifically allow the trial court to consider a motion for summary judgment in a civil case, and as the rules do not specifically prohibit summary judgment motions in expunction proceedings, we cannot conclude the trial court erred by considering the State's motion for summary judgment.

Additionally, the Tenth Court of Appeals has held a trial court may rule on an expunction petition without conducting a formal hearing and without the consideration of live testimony. Ex parte Current, 877 S.W.2d 833, 839-40 (Tex. App.--Waco 1994, no writ). We see no reason to disagree with the Tenth court's conclusion, especially when an expunction petition may typically be disposed of on the basis of the parties' pleadings (such as when the State does not contest the expunction). When such is the case, summary judgment is usually the most expedient vehicle for resolving the case. Accordingly, we cannot say the trial court erred by considering the State's motion for summary judgment without first bench warranting Staner from prison for the purpose of a live hearing when the trial court was able to determine the issues before it solely based on the pleadings and evidence already in the record. (2)

We overrule each of Staner's points of error and affirm the trial court's judgment.

 

Bailey C. Moseley

Justice

 

Date Submitted: November 17, 2006

Date Decided: January 5, 2007

1. See generally Tex. Penal Code Ann. 22.021 (Vernon Supp. 2006).

2. Staner also complains he did not have a chance to controvert the State's motion for summary judgment. The appellate record refutes such an assertion. A motion for summary judgment, along with its supporting evidence, must be on file for at least twenty-one days before the trial court may rule on the motion's merits. Tex. R. Civ. P. 166a(c). The State filed its motion for summary judgment June 30, 2006. The trial court did not grant summary judgment until August 1, 2006. Staner had the entire month of July to file a response and controverting evidence, but he failed to do so. The trial court will not be faulted for not considering evidence when Staner did not offer any.