NUMBER 13-08-00520-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,

v.

JOSE LUIS SOTO, Appellee.

 

On appeal from the 107th District Court 

of Cameron County, Texas.

 

O P I N I O N

Before Justices Yañez, Rodriguez, and Benavides

Opinion by Justice Rodriguez

Appellant, the Texas Department of Public Safety (TDPS), appeals the trial court's

order granting a petition for expunction filed by appellee, Jose Luis Soto. By two issues,

TDPS contends that it did not receive notice of the expunction hearing and that Soto did
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not meet his burden of proof. We reverse and set aside the expunction order and remand

for proceedings consistent with this opinion.

I. BACKGROUND

On December 19, 2007, Soto filed a petition for expunction of his arrest records that

listed five agencies as respondents, including TDPS. The trial court set a hearing for

March 3, 2008, and TDPS was notified of the hearing by certified mail. TDPS filed an

original answer denying each and every allegation in Soto's petition. On March 3, the trial

court reset the hearing to March 27. On March 18, 2008, the Cameron County District

Attorney, another agency listed in Soto's petition, filed a motion for continuance. The trial

court reset the hearing to July 31, 2008. On April 22, 2008, Soto filed an amended petition

for expunction, and a hearing was set for June 26, 2008. On June 26, the trial court

rescheduled the hearing to July 31, 2008. TDPS did not receive notice of the new date nor

did it waive the requirement of notice. As a result, TDPS did not participate at the July 31

expunction hearing during which the trial court granted the expunction of Soto's arrest

records. This appeal ensued.

II. DISCUSSION

The procedures to be followed in an expunction proceeding are set forth in article

55.02 of the Texas code of criminal procedure. See TEX.CODE CRIM.PROC.ANN. art. 55.02

(Vernon Supp. 2008). Because the right to expunction is a statutory privilege, the

petitioner must satisfy the provisions of article 55.02 in order for his action to be sustained.

Ex parte Myers, 68 S.W.3d 229, 232 (Tex. App.–Texarkana 2002, no pet.). Section 2(c)

of article 55.02 provides that "the court . . . shall give reasonable notice of the hearing to

each . . . agency . . . named in the petition" by either certified mail, return receipt requested
 W e note that when an expunction order is reversed and set aside, the reversal applies to all 1

agencies in possession of relevant criminal records. Ex parte Elliot, 815 S.W .2d 251, 252 (Tex. 1991) (per

curiam); Tex. Dep't of Pub. Safety v. Deck, 954 S.W .2d 108, 113 (Tex. App.–San Antonio 1997, no pet.).

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or secure electronic mail, electronic transmission, or facsimile transmission. TEX. CODE

CRIM. PROC. ANN. art. 55.02, § 2(c). 

By its first issue, TDPS contends that the trial court's expunction order should be set

aside because TDPS was not provided notice of the July 31 hearing pursuant to article

55.02. See id. We agree. TDPS is an agency named in Soto's petition; therefore, it was

entitled to reasonable notice of the July 31 hearing. See id. Here, the record does not

show that TDPS received notice of the July 31 hearing in accordance with the expunction

statute; therefore, the expunction order must be set aside. See Tex. Dep't of Pub. Safety

v. Deck, 954 S.W.2d 108, 112-13 (Tex. App.–San Antonio 1997, no pet.) (concluding that

the trial court erred in granting a petition for expunction because the appellant did not

receive notice that the expunction hearing was reset). We sustain TDPS's first issue. Due

to the disposition of TDPS's first issue, we need not address its second issue. See TEX.

R. APP. P. 47.1.

III. CONCLUSION

We reverse and set aside the expunction order and remand for proceedings

consistent with this opinion.

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NELDA V. RODRIGUEZ

Justice

Opinion delivered and filed this

26th day of March, 2009.