The State has not filed a brief. We do not make arguments for parties, and so we examine Canty’s 1

argument for obvious defects and also consider the reasoning set forth by the trial court. See Archer v. Tex. Dep’t of

Criminal Justice-Institutional Div., No. 12-07-00012-CV, 2008 WL 1735168, at *1 n.1 (Tex. App.–Tyler Apr. 16,

2008, no pet.). Ordinarily, we would also consider the arguments made by the State before the trial court. See id.

However, the State never reached the point of making arguments at the trial court level. Additional arguments may

exist to support dismissal that have not been considered in this opinion.

The facts set forth in our opinion have been gleaned from Canty’s amended petition and the trial court’s 2

order. Our opinion should not be construed as an evaluation of the veracity or merits of any allegation made by

Canty in this expunction proceeding.

NO. 12-08-00257-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

VICTOR J. CANTY, § APPEAL FROM THE 87TH

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE § ANDERSON COUNTY, TEXAS

 

MEMORANDUM OPINION

Victor J. Canty appeals the trial court’s order denying his petition for expunction of criminal

records. In one issue, Canty argues that the trial court erred by denying his petition without holding

a hearing. We affirm.1

BACKGROUND2

Canty was arrested on August 20, 1996 for assaulting a public servant. On March 27, 1997,

Canty was charged by indictment with the offense. The indictment was dismissed on October 5,

1999.
2

On July 13, 2007, Canty filed a petition for expunction. He filed an amended petition for

expunction on January 16, 2008. Canty alleged that he was entitled to expunction “pursuant to the

Texas Code of Criminal Procedure, Articles 55.01(a)(2)(A)(i), 55.01(a)(2)(B), (C), and

55.02(2)(a).” On April 24, 2008, Canty filed a motion in the trial court stating that adequate time

to set an expunction petition hearing had passed and requesting that the trial court set an expunction

petition hearing. In response, on May 15, 2008, the trial court made the following notation in the

docket:

Considered [Canty’s] request for hearing [on] expunction under Chp 55 - Tx Code of Criminal

[P]rocedure[.] [Canty is] not entitled to expunction under [the] Chp 55 statutory requirements for

obtaining an expunction [because those requirements are] not present[.] [N]o action taken[.]

On June 11, 2008, Canty, believing the trial court had denied his petition, filed a notice of

appeal. On July 22, 2008, the trial court signed a written order denying the petition. The trial court

stated in the order that

[t]he Court finds that [Canty] is not entitled to an expunction under Chapter 55 of the Texas Code of

Criminal Procedure[]. [Canty] failed to comply with the statutory requirements for obtaining an

expunction.

Accordingly and pursuant to Chapter 55 of the Texas Code of Criminal Procedure[], the

petition as filed is denied. It is hereby, ORDERED, ADJUDGED AND DECREED that the request

of [Canty] is denied.

This appeal followed.

DENIAL OF PETITION WITHOUT ORAL HEARING

In one issue, Canty argues that “[t]he trial court erred in denying [him] a hearing on his

expunction petition prior to ruling on [the] merits [of this petition.]”

Standard of Review

Expunction proceedings are authorized by chapter 55 of the Texas Code of Criminal

Procedure and are considered civil causes of action. See Ex parte Wilson, 224 S.W.3d 860, 862

(Tex. App.–Texarkana 2007, no pet.). We review a trial court’s decision whether to hold an oral

chapter 55 expunction hearing under an abuse of discretion standard of review. See id. at 863-64

(conducting such a review); see also State v. Taylor, 266 S.W.3d 553, 555 (Tex. App.–Tyler 2008,
 Because it is unnecessary to do otherwise, we have cited to the most current version of chapter 55 in this 3

opinion.

3

pet. denied). A trial court abuses its discretion when its decision is arbitrary, unreasonable, or

without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d

357, 360 (Tex. 2000).

In conducting an abuse of discretion review, we examine the entire record. Mercedes-Benz

Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996). “The mere fact that a trial judge may

decide a matter within [her] discretionary authority in a different manner than an appellate judge in

a similar circumstance does not demonstrate that an abuse of discretion has occurred.” Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). However, a trial court has no

discretion in determining what the law is or applying the law to the facts. Spitzer v. Berry, 247

S.W.3d 747, 750 (Tex. App.–Tyler 2008, pet. denied).

Discussion

Canty was entitled to a hearing under chapter 55. See TEX. CODE CRIM. PROC. ANN. art.

55.02, § 2(c) (Vernon Supp. 2008) (“The 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 governmental

entity named in the petition reasonable notice of the hearing . . . .”). However, “[n]ot every hearing 3

called for under every rule of civil procedure necessarily requires an oral hearing, and, unless

required by the express language or the context of the particular rule, the term ‘hearing’ does not

necessarily contemplate either a personal appearance before the court or an oral presentation to the

court.” See Wilson, 224 S.W.3d at 863. “For example, a trial court may rule on an expunction

petition without conducting a formal hearing and without the consideration of live testimony, if it

has at its disposal all the information it needs to resolve the issues raised by the petition.” See id.

That information might be available from the pleadings, summary judgment proof, or court records

subject to judicial notice. See id.

Here, the record demonstrates that the trial court determined that Canty had not filed an

expunction petition satisfying the statutory requirements set forth in chapter 55. Our review of

Canty’s amended petition shows that Canty failed to set forth “the date the offense charged against

[Canty] was alleged to have been committed,” information that Canty was statutorily required to

allege. See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(b)(3) (Vernon Supp. 2008). Addressing
4

this and other required information, chapter 55 commands that “[t]he [expunction] petition . . . shall

include the following or an explanation for why one or more of the following is not included.” TEX.

CODE CRIM. PROC. ANN. art. 55.02, § 2(b) (Vernon Supp. 2008). Having at its disposal Canty’s

amended petition, the trial court had everything it needed to determine whether Canty had included

this information. See Wilson, 224 S.W.3d at 863.

The right to an expunction is neither a constitutional nor a common law right, but rather, a

statutory privilege. See Quertermous v. State, 52 S.W.3d 862, 864 (Tex. App.–Fort Worth 2001,

no pet.). Where a cause of action is created by statute, all statutory provisions are mandatory and

exclusive, and must be complied with in order to sustain the action. See id. Therefore, Canty could

not be entitled to relief under chapter 55 when he failed to set forth in his petition the statutorily

required information. See id. at 864-65 (reaching a similar conclusion regarding jurisdiction). We

hold that the only hearing required under these circumstances was a trial court review of Canty’s

pleadings. See Wilson, 224 S.W.3d at 863. Because the record reflects that the trial court conducted

such a review, we also hold that the trial court did not abuse its discretion when determining the type

of hearing appropriate to the case. See Honeycutt, 24 S.W.3d at 360. We overrule Canty’s sole

issue.

DISPOSITION

We affirm the order of the trial court.

 SAM GRIFFITH 

 Justice

Opinion delivered April 15, 2009.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)