Ex Parte James G. Miller--Appeal from 237th District Court of Lubbock County
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NO. 07-09-00278-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
MARCH 22, 2010
EX PARTE JAMES G. MILLER
FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2009-547,036; HONORABLE SAM MEDINA, JUDGE
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, James G. Miller, appeals the trial court’s dismissal of his Petition for
Expunction of Records. We affirm.
Background
On April 9, 2009, Miller filed a Petition for Expunction of Records. In his petition,
Miller seeks the expunction of two counts of a four count indictment on the basis that
the two indicated counts were tried to a jury and Miller was acquitted. Although Miller
purportedly requested that the District Clerk file the Petition in the 140th District Court of
Lubbock County wherein the two indicated counts were tried, the petition was, instead,
filed in the 237th District Court of Lubbock County. Initially, on July 15, the trial court set
a hearing on Miller’s Petition for Expunction of Records, but the trial court then
dismissed the petition on July 27 stating that “[t]he records for Cause No. 2003-402,899
in the 140th District Court of Lubbock County, Texas as identified in the Petition filed in
this case are not subject for expungement at present.”
Appellant contends that the trial court (1) lacked jurisidiction to hear or dismiss
the petition and (2) erred in dismissing the petition.
Jurisdiction
Miller contends that the only court with proper jurisdiction is “the trial court
presiding over the case in which defendant was acquitted.” However, Miller is incorrect.
According to article 55.02 of the Texas Code of Criminal Procedure,
At the request of the defendant and after notice to the state, the trial court
presiding over the case in which the defendant was acquitted, if the trial
court is a district court, or a district court in the county in which the trial
court is located shall enter an order of expunction for a person entitled to
expunction . . . .
TEX. CODE CRIM. PROC. ANN. art. 55.02, § 1 (Vernon Supp. 2009). (emphasis added).1
Since Miller was acquitted in Lubbock County, any district court in that County could
preside over the case. Since the 237th District Court has jurisdiction in Lubbock County,
it is a proper court. We overrule appellant’s first issue.
1
Further references to the Texas Code of Criminal Procedure shall be by
reference to “article __” or “art.___.”
2
Dismissal of Miller’s petition
Next, Miller contends that the trial court erroneously dismissed his case since he
has successfully demonstrated that he was (1) tried and acquitted of the offenses he
seeks to have expunged and (2) not convicted of a felony in the five years preceding the
arrest.
See art. 55.01(a).
However, even assuming that Miller successfully
demonstrated that he had not been convicted of a felony in the five years preceding the
arrest, Miller has not demonstrated that the trial court erred in dismissing his petition.
Although the trial judge does not have discretion to deny the petition if the statutory
requirements are met, each requirement must be met before the applicant is entitled to
an expungement. See Perdue v. Tex. Dep’t of Pub. Safety, 32 S.W.3d 333, 335
(Tex.App.—San Antonio 2000, no pet.). In this case, the two charges of which Miller
was acquitted were part of a four count indictment.
Although Miller states in his brief
that the State waived or abandoned the other two counts, nothing in the record
demonstrates that the other two counts are no longer pending. Under article 55.01(c),
A court may not order the expunction of records and files relating to an
arrest for an offense for which a person is subsequently acquitted,
whether by the trial court or the court of criminal appeals, if the offense for
which the person was acquitted arose out of a criminal episode, as
defined by Section 3.01, Penal Code, and the person was convicted of or
remains subject to prosecution for at least one other offense occurring
during the criminal episode.
In this case, the indictment listed offenses related to the manufacture, possession, and
delivery of a controlled substance on or about the 10th day of April, 2003.
Thus,
according to the record in this matter, Miller potentially remains subject to prosecution
for at least one other offense occurring during the criminal episode. Therefore, the trial
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court is correct in its Order of Dismissal on Petition for Expunction of Records when it
stated that “[t]he records . . . as identified in the Petition filed in this case are not subject
for expungement at present.” We overrule Miller’s second issue.
Conclusion
Having overruled Miller’s issues, we affirm.
Mackey K. Hancock
Justice
Pirtle, J., dissenting.
4
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