### 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. 03-13-00702- CV

The Travis Coun ty Att orney, Appellant

v. L. C., Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 299 TH JUDICI AL DISTRICT NO. D-1 -EX- 13- 0002 66, H ONO RAB LE K AREN SAGE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

The Travis County Attorney (Cou n t y At torney ) bring s this restric ted appea l challeng ing an order of expunction signe d by the trial court on May 1, 2013, in favor of appellee L .C. (the May order ). The County Attorney urg es that the trial court abused its discretion when it enter ed the order direc ting the County Attorney and others to expunge arr est rec ords and files. For the following rea sons, we reve rse, set aside the expunction order , and rema nd this case to the trial court for pr ocee dings c onsistent with thi s opinion.

BACK GR OUND
I n Marc h 2013, L .C. f

iled an ex parte petition to expunge rec ords of his 2012 arr est for the felony offe nse of injury to a child and t h e misdemeanor offe nse of interfe renc e with an

emer g ency call. See Tex. Code Crim. Proc. art. 55.02 (setting forth proce dures for expunction). The petiti o n d i d n ot list the Travis County Attorney among the ag encie s, entities, and officia ls withrec ords or files perta ining to the arr est. See id. art. 55.02, § 2(b)( 8) (re quiring petition to include list

of applicable “l aw enfor ceme nt ag encie s, jails or other detention fac iliti es, mag istrates, courts,
prosec uting attorney s, corr ectional fac iliti es, centr al state depositories of criminal rec ords, and other officia ls or ag encie s or other e ntities of this st ate or of any political subdivision of t his state” with

rec ords or files soug ht to be expunged)

. The May order , howeve r, included the County Attorney
among the named ag encie s, entities, and officia ls subjec t to the order

. After compar ing the names listed in L .C.’s petition to the o n es l i s t ed i n the order, t he Deputy Travis Count y District Clerk i n char g e of handling expunction case s notified L .C. that she could not proce ss the May order as to the County Attorney , and the District Clerk did not send a copy of the orde r to the County Attorney

. On Aug ust 15, 2013, L .C. filed a first amende d petition for expunction that listed the County Attorney as having rec ords or files perta ining to the arr est. See id. I n the amende d petition,
L .C. lists the entities , agencies, and officia ls who wer e named in the orig inal petition, and then

s e p a r a te ly lists other entities, ag encie s, and officia ls to be serve d with notice of the amende d petition

. The County Attorney was on the latter list. The County Attorney responde d to the amende d petition by filing special ex ceptions and a gene ral denial to the amended petit ion on September 11, 2013.
At that point, th e C o u n t y Attorney was unawa re of the May order

. Acc ording to the Assistant County Attorney who handled all expunction case s for T ravis County ag encie s, the office of the County Attorney did not become a

war e of the May

order until S eptember

2013. On Octobe r 1, 2013, the County Attorney filed a motion to set aside the May order and for a new trial on the grounds that he was no t named in the original petit ion but named in the May order and that he was unawa re of the May order unti l S ep t em ber 2013. L .C. filed a written

2response to the motion, arg uing that the May order was final and the trial court had lost jurisdiction

t o consider the County Attorney ’s motion to set aside and for a new trial beca use the trial court’ s plenar y power had expired. See Tex. R. Civ. P. 306a(4) , 329b(d). Ag ree ing with L .C., the County Attorney abandone d the motion and did not proce ed with a hear ing. This restric ted appea l followed. 1

ANALYSIS
I n one issue, the County Attorney urg es that the trial court abused its discretion when it signe d the May order direc ting the County Attorney and others who did not have notice of L .C.’s petition to ex p u n ge ar re s t rec ords and files of L .C. See Travis Cnty. Dist. Attorney v. M.M. , 2
354 S.W .3d 920, 922 (Tex. App.—A u s tin 2011, no pet.) (en banc) (re viewing expunction order under abuse of discretion standard (citing Heine v. Texas Dep’ t of Pub. Safety , 92 S.W .3d 642, 646 (Tex. App.—Austin 2002, pet. denied) ). A trial court abuses its discretion when it acts without
reg ard to any g uiding rules or principles. Downer v. Aquamarine Operators, Inc ., 701 S.W .2d 238,
241–42 (Tex. 1985)

. “A trial court also abuses its discr etion by failing to a naly ze or apply the law

corr ectly .” Iliff v. Iliff

, 339 S.W .3d 74, 78 (Tex. 2011) (citing W alker v . Pack

er , 827 S.W .2d 833, 840 (Tex. 1992)).

To succe ssfully

attack an order by restric ted appea l, the appea ling party must show it was (1) a party to the underly ing law s u i t ; (2 ) it did not participa te either in person or throug h

I n a separ ate but rela

ted appea l, 03-13-00715- CV, The Travis County Attorney v. L.C. , the 1 County Attorney challeng es a subsequent expunction order signe d by the trial court in October 2013. That order i s based on the amended petition filed by L .C. in Aug ust 2013. By opinion issued this same da te, we va cate the Octobe r 2013 orde r. L .C. has not filed a re sponsive brief. 2 3counsel in the hea ring that resulted in the c omplained-of judg ment or orde r, (3) it filed a notice of
appea l within six months afte r the judgme nt or order was signe d, and (4) err or is appar ent on the fac e of the rec ord. T ex . R. App. P. 26.1(c) , 30; Alexande r v. Lynda’s Boutique , 134 S.W .3d 845, 848 (Tex. 2004); Texas Dep’ t of Pub. Safety v. Jacobs , 250 S.W .3d 209, 210 (Tex. App.—Dallas 2008, no pet.).
Her e, the rec ord aff irmatively shows that the County Attorney —as a prosec uting attorney with rec ords subject to expunction—was a pa rty , that he wa s unawa

re and did not appear

or otherwise participa te in this case until several months afte r the trial court signe d the May order , and that he filed his notice of appea l w ithin 6 months a fter the May order was signe d. See Tex. R. App. P. 26.1(c) , 30; Alexande r , 134 S.W .3d at 848; Jacobs , 250 S.W .3d at 210 (conc luding that the
Texas Depa

rtment of Public Safety “‘a s a State ag ency with rec ords subject to expunction, is a party
to the suit within the meaning of the require ments for a restric ted appea l’” (quoting Texas Dep’ t of Pub. Safety v. Moore , 51 S.W .3d 355, 357 (Tex

. Ap p . — T y ler 2001, no pet.)). Thus, the County Attorney meets the first three require ments for raising a restric ted appea l. Acc ording ly , we turn to whether err or is appar ent on the fac e of the rec ord. See Norman Commc’ns v. Texas Eastman Co. , 955 S.W .2d 269, 270 (Tex. 1997) (per curia m). The “ fac e of the rec ord” c onsists of all paper s on file in the appe al. Id. ; Jacobs , 250 S.W .3d at 210.

Be cause the rig ht to expunction is a statutor y p ri vileg e, “a person is entitled to expunction only when all statutory conditions ha ve been met.” M.M. , 354 S.W .3d at 923 (quoting
Harris Cnty. Di s t. Attorney v. Lacafta , 965 S.W .2d 568, 569 (Tex. App.—Houston [14t h Dist.] 1997, no pet.)); see Tex. Code Crim. Proc. art

. 5 5

. 02; Texas Dep’ t of Pub. Safety v. Dec k ,

4954 S.W .2d 108, 112 (Tex. App.—San Antonio 1997, no writ) (noting t h at p roce dures in article

55.02 are mandatory and that err or is appar ent on fac e of rec ord when rec ord ref lects that proce dures

wer e n o t fo l l o wed) ; Texas Dep’ t of Pub. Safety v. Riley , 773 S.W .2d 756, 758 (Tex. App.—San Antonio 1989, n o writ) (same)

. Among the require ments in article 55.02, a petitioner seeking expunction is require d to name in his petition “prose cuting attorney s” who have rec ord s or files subject to expunction, and the trial court is require d to set a hear ing on the matter and to g ive notice of the hear ing to prosec uting attorney s named in t he petition. Tex. Code Crim. Proc. art. 55.02, § 2(2)( b)(8) (A), ( c).

Her e, the County Attorney was the prosec uting attorney for the misdemeanor char g e and wa s named in the May order , but he was not na

med in the petition a

nd rec eived no notice of a hear ing on the petition. See id

. There also is no repor ter’s r ecor d of a he aring on the petition for 3 expunction, and the re co rd i n cl udes affidavits from the Deputy Travis Count y District Clerk and

4 Assistant Travis County

Attorney s. The De puty Travis County District Clerk ave rre d that she did
not send a copy of t he May order to the C ounty At t o rn ey , an d o ne of the Assi stant Travis Count y Attorney s aver

red that the office of the Travis County Attorney did not lear n of the May order until Sep t em b er 2 0 13 and first rec eived a copy of the order on September 23, 2013. Thus, the rec ord ref lects that the statutory

conditions for expunction were not met. See id.
Be cause the rec ord ref

lects that the statutory conditions for expunction wer e not met,

we conclude that err or is appar ent on the fac e of the rec ord, and that the May order must be set aside.

As previously stated, L .C. na med the County Attorney in his a mended petition but not in 3 his origina l petition. Acc ording to the court re porter, she does not have a re cord of a hear ing on May 1, 2013. 4 5See De ck , 9 5 4 S.W .2d at 112; Riley , 773 S.W .2d at 758; see also Texas Dep’ t of Pub. Safety

v. Flores , No. 04-07-00257- CV, 2008 Tex. App. L EXI S 1021, at *2–4 (Tex. App.—San Antoni o Fe b. 13, 2008, no pet.) (mem. op.) (setting aside expunction order in restric ted appea l based o n failure to follow statutory provisions as to notice). The rec ord ref lects that the trial court abused its discretion when it g rante d L .C.’s petition for ex punction. See Iliff , 339 S.W .3d at 78 (n o t i n g t h at trial court abuses its di scre tion when it fails to apply law corr ectly ). Thus we sustain the County Attorney ’s issue.

CONCLUSION

For these reasons, we reve rse, set aside the May o rder , and remand t his case to the trial court f

or proc eeding s consistent with this opi nion.

__________________________________________ Melissa Goodwin, Jus tice
Be fore J ustices Pury ear , Goodwin, and F ield
Reverse d and Remande d Filed: May

12, 2015

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