Texas Department of Public Safety v. Albert Talamantez--Appeal from County Court of San Saba County

cv5-697.dd.talamantez TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00697-CV
NO. 03-95-00698-CV
Texas Department of Public Safety, Appellant
v.
Albert Talamantez, Appellee
FROM THE COUNTY COURT OF SAN SABA COUNTY
NOS. 5270 & 5271, HONORABLE HARLEN BARKER, JUDGE PRESIDING

PER CURIAM

 

The Texas Department of Public Safety appeals by writ of error the expunction of records pertaining to Albert Talamantez's arrest for unlawfully carrying a weapon. We will reverse the judgments and dismiss the causes because the county court had no jurisdiction over the cause.

To prevail on appeal by writ of error, a party to a suit who did not participate at trial must file the petition for writ of error within six months after the judgment was rendered and show an error apparent from the face of the record. Tex. R. App. P. 45; General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex. 1991).

Talamantez filed his motions for expunction on May 18, 1995 in San Saba County Court. The court granted the motions that same day ordering the DPS to take action to expunge all record of the arrest. The DPS filed its petition for writ of error in the trial court on November 6, 1995, within six months from rendition of the judgment. The DPS raises two points of error against the court's procedure in setting the hearing and giving notice and challenges the trial court's jurisdiction by a third point.

The transcripts in each of the cases consolidated on appeal show that the DPS had no notice of a properly set expunction hearing. The statute governing expunctions requires that the court set a hearing on the expunction no sooner than thirty days from the filing of the petition and give reasonable notice to the relevant agencies by certified mail, return receipt requested. Tex. Code Crim. Proc. Ann. art. 55.02, 2 (West Supp. 1996). No notice of the petition or a hearing appears in the transcripts, even though the county-court clerk certified that the transcripts complied with the DPS's request that the transcripts include the entire contents of the case files. The transcripts affirmatively show that the county court granted the motion immediately without waiting thirty days before holding a hearing. The transcripts show no waiver of the waiting period. The county court's noncompliance with the statute prohibited the DPS from participating at a hearing following the statutorily mandated waiting period. See Rodriguez v. T.M.B., 812 S.W.2d 449, 450 (Tex. App.--San Antonio 1991, no writ) (five-day interval between filing of petition and expunction order not reasonable notice of hearing as matter of law). We sustain points one and two.

The appellate record affirmatively shows an error even more critical than the failure to wait the statutorily required thirty days before holding the hearing: the county court had no jurisdiction over the proceeding. The statute explicitly authorizes the filing of petitions for expunction only in district courts. Tex. Code Crim. Proc. Ann. art. 55.02, 1(a) (West Supp. 1996). While expunction petitions may be filed in county courts-at-law that have jurisdiction coextensive with district courts (see Gonzalez v. Rubalcaba, 667 S.W.2d 609, 611 (Tex. App.--El Paso 1984, no writ)), no such latitude is accorded constitutional county courts. The county court's judgment is void. We sustain point three.

We reverse the void judgments and dismiss the causes. Our judgments do not affect Talamantez's right to petition for expunction of his records in the proper court following proper procedures.

 

Before Justices Powers, Jones and B. A. Smith

Reversed and Dismissed on Both Causes

Filed: June 12, 1996

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