### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00331- CV
A. S., Appellan t

v. Texas Depart m ent of Public Saf ety, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -EX- 14- 0009 77, H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N A.S. appea ls from the district court’ s judgme nt de ny ing his petition for expunction of ce rtain off

enses c harg ed ag ainst him. For the r easons that f ollow, we will aff

irm.
BACK GR OUND 1 I n September 2014, A.S. petitione d th e D is tr ic t Co u r t o f T r a v is Co u n ty for expunction of five offe nses t hat he was charg ed with between 1 9 9 1 an d 2009. He filed under Texas Code of Criminal Procedur e Article 55.01(a) (2)( B) , arg uing that he was entitled to have eac h char g e expunged be cause :
1. The indictment has be en dismissed or quashe d, and;

Be cause the parties are familiar with the facts of t his case an d its proce dural hist ory , we 1 provide only a g ener al overvie w here

. We provide additional fac ts in this memorandum opinion as nece ssary to advise the parties of the Court’s decision and the basic rea sons for it. See Tex. R. App. P. 47.1, 47.4.2. [A.S .] has been re lease d from the c harg e(s) and no fina l conviction exis ts, and;

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. T he limit ations period of the char g e(s) expired befor e the date on which this petition for expunction was filed.
When he filed his petition, A.S. was incar cer ated for off en s es t h at ap pear to be unrela ted to the char g es he soug ht to have expunged. He filed his petition pro se and has not had leg al repr esenta tion at any point in these proce eding s. A.S.’s petition lacke d cer tain information requi re d by the Texas Code of Criminal Procedur e, including A.S.’s driver’ s license number, the dates that the char g ed offe nses wer e alleg ed to have been committed, the dates on which he was arr ested for the alleged o ff en s es , the court to wh i ch the case s wer e assig ned and the corr esponding case numbers, a list of entities poss es s i n g
rec ords subject to expunction, and the addre sses of those en t i t i es . See Tex. Code Crim. Proc. 2 art. 55.02, § 2(b)( 1)(E) , (3), (4), (7), (8). I n his petition, A.S. explained that he did not have, know,

or re member e ach missing piece of informa tion.

Specifica lly , t h e ex p u n ction statute require s petitioners to provide a list, including the 2 phy sical or e -mail addre sses, of all: (A) law enfor ceme nt ag encie s, jails, or other detention fac iliti es, mag istrates, courts, prosec uting attorney s, corr ectional faciliti es, centr al state depositories of criminal rec ords, and other officia ls or ag encie s or other entities of this state or of any political subdivision of thi s state; (B ) central federa l depositories of c riminal rec ords that the petitioner ha s rea son to believe ha

ve re cords or

files that ar e subjec t to ex punction; and (C) private entities that compile and disseminate for compensa tion criminal history rec ord information that the petitioner has rea son to believe have information rela ted to rec ords or files tha t are subject to expunction. Tex. Code Crim. P roc. a

rt. 55.02, § 2(b)( 8). 2The district court set a hear ing on A.S.’s petition for April 23, 2015. A.S. did

not reque st a bench war

rant to attend the hear ing in person. I nstead, he filed his Petitioner’s Motion to Attend Hea

ring by Telephone Confere nce Call or Other Effe ctive Means. I n this motion, A.S. contende d that “his phy sical prese nce is not nece ssary at the hear ing to resol v e t h e ex p ung ement of rec ords and files. Howeve r, should the court deter minate that his presen ce i s require d, [A.S .] reque sts he be allowed to pr ocee d by telephone confe renc e call.” The motion conta ins no specific reque st to attend by

any means other

than telec onfer ence . The district c ourt denied A .S.’s reque st to attend via teleconf

ere nce in its Orde r on Petitioner’s Request to Attend Ex pung ement Hea ring by Telec onfer ence .

A.S

. was still incar cer ated and unrepr esente d at the time of the heari n g an d d i d not appea r in person or throug h counsel. The district court issued its J udg ment Deny ing Petition for Ex punction, finding that A.S. “F ailed to appea r in person or by attorney and wholly made defa ult,” and that “the petition omit s require d alleg ations.” This appe al followed.
DISCUSSIO N A.S. bring s two issues on appea l. First, he con tends that his petition satisfied all

s t at u t o ry require ments, leaving the district court with no discretion to deny expunction. T.C.R

.
v. Bell Cty. Dist. Atty’s Office , 305 S.W .3d 661, 664 (Tex. App.—Austin 2 0 09, no pet.) (“[I ]f the petitioner demonstrates t h at h e h as satisfied eac h of the require ments under article 55.01(a) , the trial court ha s a mandatory duty to g rant the expunction petition.”). Second, he arg ues that the district court err ed in deny ing his petition for failure to appear af t er deny ing his motion to appea r telephoni ca lly , there by deny ing him his constitutional rig ht to prese nt his g rieva nce. We revie w a trial court’s ruling on an expunction petition for abuse of discretion. Heine v. Texas Dep’ t 3of Pub. Safety , 92 S

. W
. 3d 642, 646 (Tex. App.—Austin 2002, pet. denied)

. The same standard

applies to ruling s on an inmate’s reque s t t o ap p ear. Aguilar v. Alvarado , 39 S.W .3d 244, 248 (Tex. App.—Waco 1999, pet. denied)

. The trial court abuses its discretion if it a cts arbitra rily and

unre asonably or wit hout ref ere nce to g uiding principles. Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241–42 (Tex. 1985). The focus is on the result rathe r than the trial court’s rea sons. Luxenberg v. Marshall , 835 S.W .2d 136, 142 (Tex. App.—Dallas 1992, no writ ). E v en i f the trial court g ives an incorre ct l ega l reason for its decision, we must uphold that decision if there

are any g rounds in the rec ord supporting it. Id

. at 141–42. We c onclude that the district court was within its discretion to find that the pe tition was deficient a nd will, therefor e, af

firm.
Denial of Expu nction The Texas Code of Criminal Procedur e a llows a person to have all rec ords of an arr est expunged if that person has been rele ased, the arr est did not result in a final conviction or community supervision, there are no rela ted ch ar g es pending , and the statute of limit ations for prosec ution

3 has expired. Tex. Code Crim. Proc. art. 55.01(a) (2)( B)

. Ex p u n ction is not a constitutional or 4 common-law rig ht, but a statutory privileg e. T.C.R. , 305 S.W .3d at 663. This privileg e is provided by article 55.01 of the Texas Code of Criminal Procedur e, but ex p unction proce eding s are civil in nature rathe r than criminal. Id. A court has no equitable power to g o bey ond what the statute provides, and a petitioner i s o n l y entitled to expunction when all statutory require ments are met.

Ex punction of class C misdemeanors may still be available despite court-or dere d 3 community supervision when all other statutory require ments are met. See Tex. Code Crim. Proc

. art. 55.01(a) (2). Howeve r, none of the char g es A.S. seeks to have expunged fall into this cate g ory . Subject to statutory require ments, a person who has been acquitted, pardone d, or otherwise 4 g rante d relief based on actua l innocenc e may also petition for expunction. Id

. at. 5 5 .01(a) (1). Howeve r, A.S. did not move for e x punction on this basis. 4Har ris Cty. Dist. Atty’s Office v. Burns , 825 S.W .2d 198, 200 (Tex. App.—Houston [1 4 t h Di s t
. ]

1992, writ denied) ; see also Carson v. State , 65 S.W .3d 774, 781–82 (Tex. App.—For t Worth 2001,

no pet.) (“[B]eca

use expunction is a statutorily cre ated reme dy , strict comp l i ance with the statute is require d.”). T h i s i n cludes the proce dural require ments listed in article 55.02. Texas Dep’ t of Pub. Safety v. Dec k , 954 S.W

. 2 d 1 0 8 , 1 1 2 (Tex. App.—San Antonio 1997, no writ). Substantial compliance will not suffice

. Carson , 65 S.W .3d at 781–82. The petitioner bear s the burden of proving that the statute has be en satisfied. T.C.R ., 305 S.W .3d at 663.

The district c ourt was within its discretion to deny A.S.’s petition beca use it lacke d essential information. The Texas D epar tment of Public Safety

(TDPS) arg ued to the district c ourt that the p et i t i o n lacke d alleg ations that A.S. had been rele ased, that the char g es did not result in court-or dere d supervision or a final conviction, and that the charg es were no longe r pending. See Tex. Code Crim. Proc. ar t
. 55.01(a) (2) (making expunction available when these and other circ umstances are met). TDPS further contende d that one of the char g es did, in f act, result in both community supervision and a final conviction. I n his brief to this Court, A.S. conce ded that he was not entitled to expunction of that particula r char g e but maintained that the district court “should’ve ruled on the remainder of the offenses.” A.S. further contends that the peti t ion did alleg e that the require ments of article 55.01(a) were satisfied. On appeal, TDP S al s o n o t es t hat t he petiti on was lacking cruc ial information require d in article 55.02, § 2(b). A.S. conce des that he did not include all of the requisite information but arg ues that he never theless satisfied article 55.02, § 2(b) by providing an explanation of why the information was missing. See Tex. Code Crim. Proc. art. 55.02, § 2(b) (“The petition must be verifie d and must include the following or an explanation for why one or more of the following i s not included ”) ( emphasis adde d).

5I t was A.S.’s burden to prove that he was elig ible for expunction under

article 55.01(a) (2)( B) and to comply with all statutory require ments, including the require ment that he list ce rtain information in his petition. See T.C.R ., 305 S.W .3d at 663. A.S.’s petition c ontains

a blanket alleg ation that he had been rele ased, that the char g es did not resul t i n co u rt -o rder ed supervision or a final conviction, and that the char g es wer e no longe r pending

— al t h o ug h he subsequently

conce ded that these alleg ations are inacc urate as to at lea st one offe nse. Reg ardle ss, much of the information require d by article 55.02 is missing. Fur ther, A.S

. ’s excuses for not including this information—that he did not reme mber or did not know—do not explain why he could not obtain the nece ssary information himself rathe r than placing the burden o f re s ea rch on the courts. I n l i g ht of the fac t that A.S. was require d to comply with the expunction statute strictly ,

5 see Deck , 954 S.W .2d at 112, we cannot fault the di strict court for declining to ac ce p t A. S

. ’s l ess than compelling excuses. We conclude that the district court did not abuse its discretion by deny ing A.S.’s petition and overr

ule his first point of err or.
Denial of Motion for Telephon ic Hearing A litigant cannot be denied acc ess to the courts simply beca use he is incar cer ated. Byrd v. Attorney Gen. , 877 S.W .2d 566, 569 (Tex. App.—B eaumont 1994, no writ), disapproved of on other grounds by In re Z.L.T

. , 1 2 4 S.W .3d 163, 166 (Tex. 2003). Howeve r, prisoners do not enjoy an absolute rig ht to make a persona l appea ranc e in civil proce eding s such as

We note t hat m uch of the missing information appe ars to be public or rea dily attainable, 5 such as A.S.’s own dri ver’ s license number, case numbers, the courts to which the case s wer e as s i gn ed, and the addre sses of public entities that would have rec ords of the char g es. Tex. Co d e Crim. Proc

. art. 55.02, § 2(b)( 1)(E) , (7), (8). I f there was a leg itimate r eason why this infor mation was be y ond A.S.’s g rasp, he did not lis t that rea son in his petiti on. 6expunction hear ings. Id. “The rig ht of a prisoner to have acc ess to the court entails not so much his

persona l prese nce as the opportunity to prese nt evidenc e or contra dict the evidenc e of the opposing party .” Do d

d v. Dodd , 17 S.W .3d 714, 717 (Tex. App.—Houston [1st Dist.] 2000, no pet.), disapproved of on other grounds by In re Z.L.T

. , 124 S.W

. 3 d at 1 6 6

. I f the trial court denies an inmate’s reque st to appea r persona lly , the inm at e should be allowed to proce ed by some other

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means such as a t eleconfer ence , aff idavit, or deposition. Id. A trial court abuses its discretion if it eff ectively bar s t h e i n mate from prese nting his case . Armstrong v. Randle , 881 S.W .2d 53, 57 (Tex. App.—Texarkana

1994, writ denied)

. A.S. complains that the district court denied him his constitutional rig ht to prese nt his

case by deny ing expunction afte r deny ing his reque st to appea r via teleconf

ere nce. TDPS counter s that A.S.’s appea

ranc e would have been futile in light of the petition’s defic iencies, which establish

a lack of strict compliance with t h e ex p u n ction statute and cast doubt on whether the rele vant ag encie s ever rec eived notice. A.S. did not reque st a bench war rant in order to attend the hear ing in person. I nstead, he asser ted that his prese nce was unnece ssary but reque sted a teleconf ere nce in the event that the district c ourt require d his pr esenc e. The rec ord does not indicate that A.S. ma de any reque st to participa te by any other means. Nor does the rec ord sug g est t h at the district court preve nted or specific ally provi d ed for him to participa te by any other means. Under these

When a prisoner reque sts a bench war rant to make a phy sical appea ranc e at a civil trial or 6 hear ing, the trial court employ s a multi-factore d balanc ing test to deter mine whether the prisoner’ s need to attend justifies the resulting strain on our corr ectional sy stem. In re Z.L.T

. , 124 S.W .3d 163, 165–66 (Tex. 2003)

. We will not addre ss whether A.S. was entitled to attend the hear ing in person beca use he specific ally contende d that his phy sical prese nce was unnece ssary and soug ht only to appea r via tele confe renc e if his phy sical pre sence was re quested by the district court. 7circ u m s t ance s, we cannot say that A.S. was eff ectively barr ed from prese nting his case . See Armstrong , 881 S.W .2d at 57.

I t is somewhat troubling that the district court found that A.S. “wholly made defa ult” afte r deny ing his motion to appea r via teleconf

ere nce. Howeve r, we reiter ate that expunction is only available upon strict compliance with th e s tatute and that the statute require s cer tain information to be listed in t h e p et i t ion itself rathe r than alleg ed later at a hear ing. See Carson , 65 S.W .3d at 781–82; Tex. C ode Crim. Proc. art. 55.02, § 2(b). We cannot conclude that the district court abused its discretion by listi ng defa ult as a rea son for deny ing the petition beca use we have alre ady found that the district court was withi n i t s d i s cr et ion to deny the petition for lack of essential information. Luxenberg , 835 S.W .2d at 141–42 (“When a trial court g ives an incorre ct leg al rea son for its decision, we will never theless uphold the order on any other g rounds supported by the rec ord” under the abuse of

discretion standa

rd of r eview) . We overrule A.S.’s second issue.
CONCLUSION Having conclude d that the district court did not abuse its discretion, we af firm its J udg ment Deny

ing Petition for Expunction.

_________________________________________ Cindy Olson Bour land, J ustice Be fore J ustices Pury ear , Goodwin, and B ourland Affir med Filed: De cembe r 31, 2015

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