State v. Ruben Nathan Garcia ( 2013 )


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  •                                 Fourth Court of Appeals
    San Antonio, Texas
    MEMORANDUM OPINION
    No. 04-12-00761-CV
    The STATE of Texas,
    Appellant
    v.
    Ruben Nathan GARCIA,
    Appellee
    From the 25th Judicial District Court, Guadalupe County, Texas
    Trial Court No. 2011-0810-CV
    Honorable Dwight E. Peschel, Judge Presiding
    Opinion by:       Luz Elena D. Chapa, Justice
    Sitting:          Sandee Bryan Marion, Justice
    Marialyn Barnard, Justice
    Luz Elena D. Chapa, Justice
    Delivered and Filed: July 31, 2013
    REVERSED AND REMANDED
    The State of Texas filed this restricted appeal, challenging the trial court’s order granting
    Ruben Nathan Garcia’s petition for expunction. Because the record does not reflect the trial court
    gave notice of the expunction hearing as required by statute, we reverse the order and remand the
    cause to the trial court for a new hearing.
    Garcia’s petition for expunction was filed pursuant to article 55.01(a)(2) of the Texas Code
    of Criminal Procedure on April 14, 2011.            The 25th Judicial District Attorney, the Texas
    Department of Public Safety, and the State of Texas filed answers and general denials. On October
    04-12-00761-CV
    1, 2012, the trial court signed an order of expunction. The State of Texas timely filed a notice of
    restricted appeal, arguing there is error on the face of the record because it was not given notice of
    the expunction hearing. Garcia did not file an appellee’s brief.
    To prevail on a restricted appeal, a party to the underlying suit must (1) file a notice of
    restricted appeal within six months of the date the judgment was signed; (2) show it did not
    participate, either in person or through counsel, in the hearing that resulted in the judgment
    complained of; (3) show it did not timely file any post-judgment motions or a request for findings
    of fact and conclusions of law; and (4) show error apparent on the face of the record. Ins. Co. of
    State of Penn. v. Lejeune, 
    297 S.W.3d 254
    , 255 (Tex. 2009); TEX. R. APP. P. 30.
    Article 55.02 of the Code of Criminal Procedure sets out the mandatory procedures that
    must be complied with in an expunction proceeding. See Texas Dep’t of Public Safety v. Deck,
    
    954 S.W.2d 108
    , 112 (Tex. App.—San Antonio 1997, no pet.); TEX. CODE CRIM. PROC. ANN. art
    55.02 (West Supp. 2012). Section 2(c) of article 55.02 requires the trial court to give each official,
    agency, or governmental entity named in the petition reasonable notice of the expunction hearing
    by certified mail, return receipt requested or by secure electronic mail, electronic transmission, or
    facsimile transmission. TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(c) (West Supp. 2012).
    On September 18, 2012, Garcia filed a motion to set the petition for trial on the court’s
    non-jury docket, and estimated the length of trial to be one day. The court administrator signed a
    notice setting the motion for a hearing on October 1, 2012, and stating fifteen minutes would be
    allowed for the matter. Although Garcia had attached to his motion a proposed order setting the
    petition for expunction for trial, that order was not signed. The record does not contain any order
    setting the petition for expunction for a hearing on the merits on October 1, 2012. Moreover, the
    record does not reflect that the trial court sent notice to the State in accordance with the
    requirements of article 55.02, section 2(c), that any matter was set for hearing on October 1, 2012.
    -2-
    04-12-00761-CV
    On October 1, 2012, the trial court signed an order of expunction. The reporter’s record of
    the brief hearing reflects that only counsel for Garcia appeared. No evidence was presented to
    show that any of the officials or entities who were named in the petition or who answered were
    given proper notice of a hearing on the petition for expunction.
    The record establishes the State did not participate in the expunction hearing and did not
    file any post-judgment motions or request for findings and conclusions. The absence of notice in
    accordance with the statute is error apparent on the face of the record. See Texas Dep’t of Public
    Safety v. Soto, 
    285 S.W.3d 542
    , 544 (Tex. App.—Corpus Christi 2009, no pet.) (holding
    expunction order must be set aside where record does not show agency was sent notice of
    expunction hearing in accordance with statute); 
    Deck, 954 S.W.2d at 112
    (holding that “[i]f the
    record does not indicate that the agency was notified in accordance with the statute, then the record
    reflects a proceeding in violation of the statute and the expunction order must be set aside”).
    We therefore reverse the trial court’s order and remand the cause to the trial court for a
    new expunction hearing.
    Luz Elena D. Chapa, Justice
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