Ex Parte Evelyn Jean Vela a/k/a Evelyn Jean McRae--Appeal from 224th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00460-CV

TEXAS DEPARTMENT OF PUBLIC SAFETY,

Appellant

v.

Evelyn Jean VELA a/k/a Evelyn Jean McRae,

Appellee

From the 224th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-CI-00689

Honorable John D. Gabriel, Jr. , Judge Presiding

Opinion by: Phylis J. Speedlin , Justice

Sitting: Sandee Bryan Marion , Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: December 13, 2006

REVERSED AND SET ASIDE

The Texas Department of Public Safety (DPS) brings this restricted appeal from an order expunging the criminal record of Evelyn Jean Vela a/k/a Evelyn Jean McRae. In a single issue, DPS asserts that the trial court abused its discretion in setting a hearing on the petition for expunction on the same day the petition was filed and without notice to all respondents listed in the petition. We agree. Accordingly, we reverse and set aside the trial court's expunction order.

Analysis

In order to reverse an underlying judgment through a 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 the judgment; (2) by a party to the lawsuit; (3) who did not participate in the hearing that resulted in the judgment and did not file 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; Quaestor Inv., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999); Tex. Dep't of Pub. Safety v. Solis, No. 04-05-00114-CV, 2005 WL 3050432, at *1 (Tex. App.--San Antonio Nov. 16, 2005, no pet.). 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. Therefore, we must determine whether error is apparent on the face of the record.

The record shows that at 3:10 p.m. on January 13, 2006, Vela filed a petition to expunge an arrest for bribery from her criminal record. DPS was one of eleven agencies listed in the petition that was entitled to notice of the expunction hearing. The trial court proceeded to hold the expunction hearing that same afternoon, and signed the expunction order on January 13, 2006. The record does not reflect that DPS received notice of the petition or of the hearing, or that it waived notice.

Article 55.02 of the Texas Code of Criminal Procedure sets forth the procedural requirements for expunction. Tex. Code Crim. Proc. Ann. art. 55.02 (Vernon Supp. 2006). Section 2(c) of article 55.02 provides that, "[t]he court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other entity named in the petition reasonable notice of the hearing by: (1) certified mail, return receipt requested; or (2) if requested in writing by the petitioner, secure electronic mail or facsimile transmission." Tex. Code Crim. Proc. Ann. art. 55.02, 2(c). Because an expunction hearing is a civil, not criminal, proceeding, each law enforcement agency is entitled to represent itself. Tex. Code Crim. Proc. Ann. art. 55.02, 2(c-1); Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 111 (Tex. App.--San Antonio 1997, no writ). The right to expunction is a statutory privilege and all the statutory provisions are mandatory; therefore, an expunction will be upheld only when all statutory conditions have been met. Id. at 112; Harris County Dist. Atty. v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.--Houston [14th Dist.] 1997, no writ).

It is apparent from the face of the record in this case that the statutory conditions were not complied with. The trial court held the expunction hearing on the same day the petition was filed, thereby violating the thirty-day waiting period provided by article 55.02, 2(c). In addition, DPS did not receive notice of the petition or hearing as required by the statute. Tex. Code Crim. Proc. Ann. art. 55.02, 2(c). When the record does not show that the agency was given notice of the petition and hearing, the expunction proceeding constitutes a violation of the statute and the expunction order must be set aside. See Tex. Dep't of Pub. Safety v. Prather, No. 04-03-00612-CV, 2004 WL 1054964, at *2 (Tex. App.--San Antonio May 12, 2004, no pet.); see also Tex. Dep't of Pub. Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.--San Antonio 1989, no writ) (expunction order set aside because hearing held on same day petition was filed, and DPS received no notice).

Because the record clearly reflects that the expunction proceeding was conducted in direct violation of the statute, we reverse and set aside the trial court's expunction order. The order is set aside as to all agencies in possession of relevant criminal records in this case, regardless of whether they participated in this appeal. See Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991). Pursuant to DPS's request, we also order that all documents that were turned over to the trial court or to Vela be returned to the submitting agencies.

Phylis J. Speedlin , Justice