Opinion filed April 16, 2015



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 1 4

- 00 128

- CV

__________ EX PARTE BILLY WAYNE WILLIAMS

On Ap peal from the 32 nd District Court Mitchell County, Texas Trial Court Cause No. 15,775

M E M O R A N D U M O P I N I O N Billy Wayne Williams , Appellant, appeals the trial court’s dismissal of his petition for expunction for want of prosecution . Appellant claims in two issues
that he should have been allowed to appear at or participate in the hearing on the proposed dismissal and that the trial court should have reinstated the case following dismissal

. W e re verse and remand.
I. Procedural History At the outset, we note that the State h as conceded error concerning Appellant’s no n participation in the hearing . Nevertheless, that concession is not2

conclusive on appeal. Saldano v. State , 70 S.W.3d 873, 884 (Tex. Cr im . App. 2002); Isham v. Stat e , 258 S.W.3d 244, 248 (Tex. App.

— Eastland 2008, pet.
ref ’d ). W e must conduct an independent examination of the merits of Appellant’s
claim. Isham
, 258 S.W.3d at 248. Appellant filed a petition in which he asked the trial court to expunge records of an arrest for the felony offense of escape, as presented in the indictment
in Cause No. 4197 in the 32 nd District Court of Mitchel l County, Texas. Appellant asserted that the indictment had been dismissed and that he was entitled

to an expunction. The trial court set a hearing and notified Appellant of the hearing date

. Appellant , who was incarcerated, move d for a writ of hab eas corpus and a bench warrant so that he could attend the hearing

. A lternatively, Appellant requested that the trial court allow him to appear at the hearing via affidavit, deposition, telephone, or teleconfe rence. T he trial court did not rule on his request
for the writ or bench warrant and did not issue a bench warrant or otherwise permit Appellant to parti cipate in the hearing

. On the day of the hearing, the trial court called the case for hearing

. W hen no one appeared for the hearing , the trial court
entered an order in which it dismissed the case for want of prosecution

. II

. Analysis Appellant argues that the trial court erred when it failed to allow him to appear in person or participate at the hearing and when it dismissed t he case for want of prosecution and refused to reinstate it

. The right to expunction is statutory; courts have no equitable power to expunge records. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 55.01 (West Supp. 2014); Tex. Dep ’ t of Pub. Safety v. J.H.J.
, 274 S.W.3d 803, 806 (Tex. App.

— Houston [14th Dist.] 2008, no pet.). A statutory expunction proceeding is civil rather than criminal in nature, and the petitioner must prove that all statutory requirements have been satisfied. Ex parte Cephus
, 410 S.W.3d 416, 418 (Tex. App.

— Houston [14th Dist.] 2013, no pet.). We review t he ruling of a3

trial court on a p etition for expunction under an abuse

- of

- discretion standard. Ex parte Reed
, 343 S.W.3d 306, 308 (Tex. App.

— Houston [14th Dist.] 2011, no pet.) ; Rodriguez v. State
, 224 S.W.3d 783, 784 (Tex. App.

— Eastland 2007, no pet.); Heine v. Tex. Dep’t of Pub. Safety
, 92 S.W.3d 642, 646 (Tex. App.

— Austin 2002, pet. denied)

. The Texas Code of Criminal Procedure provides that the trial court shall set a hearing on an expunction petition and give reasonable notice of the hearing to
each official or agency or other governmental entity named in the petition. See
C RIM

. P ROC

. art. 55.02, § 2(c). A trial court may rule on an expunction petition without conducting a formal hearing and without the consideration of live testimony if the court has at its disposal all the information it needs to resolve the issues raised by the petition. Ex parte Wilson , 224 S.W.3d 860, 863 (Tex. App.

— T exarkana 2007, no pet.). A prisoner does not lose his access to the courts as a
result of his incarcerated st atus, but he does not have an absolute right to personally appear. Hudson v. Palmer
, 468 U.S. 517, 523 (1984); Ex parte Guajardo , 70 S.W.3d 202, 205 (Tex. App.

— San Antonio 2001, no pet.). The trial court must balance the government’s interest in protect ing the integrity of the correctional system against the prisoner’s right of access to the courts. Guajardo
, 70 S.W.3d at 206. A key factor is whether the prisoner is represented by counsel.
Heine , 92 S.W.3d at 649

– 50 (citing Jones v. Jones , 64 S.W.3d 2 06, 210 ( Tex. App.

— El Paso 2001, no pet. ) , and Dodd v. Dodd
, 17 S.W.3d 714, 717 (Tex. App.

— Houston [1st Dist.] 2000, no pet.) )

. As we do in our consideration of a trial court’s ruling on the actual petition, w e review for an abuse of discretion the trial court’s decision on Appellant’s request for a bench warrant and his request to participate in the hearing by other means. Heine , 92 S.W.3d at 6 50 ; Guajardo , 70
S.W.3d at 206

– 07.4

After our independent review, we agree with Appellant and the State that the trial court thereby abused its discretion. We sustain Appellant’s first issue

. Guajardo , 70 S.W.3d at 206

– 07. In light of our decision on Appellant’s first issue,

we need not a ddress his remaining issue.
III

. This Court ’ s Ruling
We reverse the order of the trial court
, and we remand the ca u se to the trial
court for fu r ther pro c eedings consistent with this opinion.

MIKE WILLSON
JUSTICE

April 16, 2015
Panel consists of: W right , C.J., W illson, J

. , and Bailey, J.