### 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. 03-12-00384- CV

R. L. M.

v. The State of Texas

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -EX- 12- 0002 86, 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

R.L .M., an inmate appea ring pro se, appea ls the d i strict court’s denial of his petition for expunction. Be cause R.L .M. did not re ce i v e n otice of the hear ing on his petition for expunction, we will reve rse the district court’s order deny ing the petition and rema n d the cause for f urther pr ocee dings.

BACK GR OUND

On April 4, 2012, R.L .M. filed a petition for expunction in the district court, pursuant
to chapte r 55 of the Texas Code of Criminal Procedur e. See Tex. Code Crim. Proc. arts. 55.01-.06 (expunction of criminal rec ords). I n his petition, R.L .M. soug ht expunction of rec ords rela ted to his
1999 arr est and indi ctment for capital murder. R.L .M. asserte d that he wa s entitled to ex punction beca use the char g es had been dismiss ed by the State when, pursuant to a plea barg ain with the State, he pleade d g uilty to a lesser char g e. Simul taneously with his petition, R.L .M. filed a motion forhear i n g by confe renc e call, explaining that he is incar cer ated and would be unable to persona lly

appea r bef ore the court. On the same day that R.L .M. filed his petition and mot i o n , t h e d istrict cler k set R.L .M.’s petition for a hear ing on J une 21, 2012. I n response , R.L .M. filed another motion for hear ing by confe renc e call. Ag ain, R.L.M. explained to the court that as a conseque nce of his incar cer ation, he would be unable to appea r persona lly at the J une 21 hear ing and reque sted that he be allowe d to participate in the hear ing by telephone.
For rea sons that do not appea r in the rec ord befor e us, the district court did not hear
R.L .M.’s petition on June 21, 2012. I nstead, the court hear d the cause on May 24, 2012. Wit hout ruling on R.L .M.’s motions to participa te by telephone, and despite the fac t that neither R.L .M. nor
any repr esenta tive from the State was prese nt at the hear ing, the court proce eded to consider the

cause and deny

R.L .M.’s petition. Raising four i ssues on appea l, R.L .M. challeng es t he court’s judgme nt. I n his first and s ec o n d issues, R.L .M. challeng es the district court’s substantive deter mination that he is not

e n ti tl e d to e xp u

n c ti o n . I n h is th ir d a

n d f o u r th is s u e s , R. L

. M

. c h a ll e n g e s th e p r o c e d u r a l c ir c u ms ta n c e s under which the court ruled on his petition. We will first consider R.L .M.’s proce dural challeng es.

ANALYSIS The reme dy of expunction allows a person who has been arr ested for the commission of an offe nse to have all information about the arres t re m o v ed from the State rec ord if he meets the statutory require ments set out in article 55.01 of the Code of Criminal Procedur e. See Tex. Code
Cr im

. Pr o c . a

r t. 5 5

. 0 1 ; Te

x a s D e p ’ t o f P u b li c S a fe ty v
. Na il , 3 0 5 S. W. 3 d 6 7 3 , 6 7 4 ( T e x. A p p . — A u s ti n
22010, no pet.). A petitioner’s r ight to ex punction is purely a matter of st atutory privileg e, and the

petitioner bear s the burden of demonstrating that eac h of the require d statutory conditions have been
met. Nail , 305 S.W .3d at 674; Ex parte W ilson , 224 S.W .3d 860, 862 (Tex. App.—Texarkana 2007,

no pet.). We revie w a trial court’s d ec i sion g ranting or deny ing a petition for expunction for an

a b u s e o f d is c r e ti o n . S

e e H e in e v
. Te x a s D e p ’ t o f P u b

. S a fe ty , 9 2 S. W. 3 d 6 4 2 , 6 4 6 ( T e x. A p p . — A u s ti n 2002, pet. denied)

.

Article 55.02 of the Code of C ri minal Procedur e sets forth the proce dures for obtaining expunction. See Tex. Code Crim. Proc

. art. 55.02. These include a require ment that the trial court “set a hear ing” on the petition and “g ive to eac h officia l or ag ency or other g overnme ntal entity named in the petition rea sonable notice of the hear ing.” See id

. art. 55.02, § 2(c)

. Howeve r, article 55.02 does not nece ssarily require that the court conduct an oral he aring

. Ex parte W ilson , 224 S.W .3d at 863; Ex parte Current , 877 S.W .2d 833, 839 (Tex. App.—Waco 1994, no writ). A 1
trial court may rule on an ex punction petition wi t h o ut conducting an oral hear ing and wit hout the consideration of live testimony , if it has at its disposal all the i n fo rm at ion it needs to resolve the issues raised by

the petition. Ex parte W ilson , 224 S.W .3d at 863.

I n Gulf Coast Inve

stment Corporati on v. NA S A 1 Business Center , the Texas Supreme 1 Court held t hat an or al hea ring was re quired on a

motion to reinstate under r ule 165a of

the Texas Rules of Civil Procedur e. 754 S.W .2d 152, 153 (Tex. 1988). I n doing so, the court rec og nized that not ever y hear ing called for under ever y rule of civil proce dure nece ssarily require s an oral hear ing, and, unless re quired by

the express lang uag e or the context of a particula r rule, the term “hea

ring ” does not nece ssarily

contemplate a

persona l appea

ranc e bef ore the court or a

n oral presentation t o the cour t. Id . Rule 165a re quires that the c ourt “set a hear ing on the motion [ to reinstate] as soon as pra cticable ” and “ notify all parties or their attorney s of re cord of the date, time a

nd place of the hear ing.” Tex. R Civ. P. 165a(3)

. Although article 55.02 require s the court to set a hear ing and g ive notice, simil ar to rule 165a, it does not require notice of “the date, time, and place .” Compare Tex. R. Civ. P. 165a(3) , with Tex. Code Crim. Proc. art. 55.02, § 2(c)

. Thus, unlike rule 165a, the express lang uag e of a

rticle 55.02 doe s not nece ssarily contemplate a

n oral he aring

. 3I n hi s fo u rt h i ssue, R.L .M. arg ues that the district court abused its discretion

when it chang ed the date of the hear ing without notify ing him of the chang ed date. A party who has
ap p eared in a case is entitled to notice of a trial setting as a matter of due proce ss under t h e Four teenth Amendment to the Fe dera l Constit ution. LBL Oil v. In ternational Power Servs., Inc ., 777 S.W .2d 390, 390-91 (Tex. 1989). “An elementa ry and fundame ntal require ment of due proce ss in any proce eding whi ch i s to be acc orded finality is notice rea sonably calc ulated, under the circ umstance, to apprise interested parties of the pendenc y of the actio n an d af fo rd them the

o p p o r tu n it y to p r e s e n t th e ir o b

je c ti o n s . ” P e r

a lt a v
. H e ig h ts M e d

. Ct r
. , I n c
. , 4 8 5 U

. S. 8 0 , 8 4

- 8 5 ( 1 9 8 8 )

. A hea ring on an expunction petition is a civil proce eding and im plicates the notice require ments g ener ally applicable to civil trial proce eding s. See Jones v. Texas Dep’ t of Pub

. Safety , 803 S.W .2d 760, 761 (Tex. App.—Hou s ton [14t h Dist.] 1991, no writ) (explaining that petition for expunction is civil p ro ce ed ing and “notice require ments of Tex. R. Civ. P. 245 are in issue”). Consequently , while a tria l court ca n, under the proper

circ umstances, dispense with the nece ssity of a formal h ea ri n g on a petiti on for ex punction under article 55.02, it cannot deprive a petitioner of his rig ht to notice of the statutorily require d “hea

ring ” altog ether

. I n this case , the district court, on its own motion, set R.L .M.’s petition for a hear ing

on the merits of his entire ca se. The rec ord on its fac e demonstrates that R.L .M. did not rec eive
any n o t i ce t h at t h i s h ear ing was to be held on May 24, 2012. I n fac t, the only notice sent to R.L .M. informed him that the hear ing would be held almost a month later, on J une 21. Be cause
t h e court chang ed the date of the hear ing to an ear lier hear ing date, without any additi o n al n o t i ce
to R.L .M., he was deprive d of the opportunity to make any arg ument or objection—including

4written arg ument or obj ection—in s u p port of hi s expunction claim. See Heine , 92 S.W .3d at 650

(noting that “rig ht to be hear d includes the opportunity to be hear d on questions of law”) ; cf. Ex parte Staner , No. 06-06-00088- CV, 2007 WL 7 9 4 0 6 , a t * 5

- 6 (Tex. App.—Texarkana J an. 5, 2007, no pet.) (mem. op.) (conc luding that court did not err by considering State’s motion for summary judgme nt

on expunction hear ing without oral hear ing when (1) court could deter mine i s sues based on pleading s and evidenc e in the rec ord and (2) inmate had notice and opportunity to file wr i tten
response and any controve rting ev id e n c e )

. U n d e r the se circ umstances, the court abused its discretion in conducting a hear ing on the merits of R.L .M.’s petition fo r ex p u n ct i o n. We sustain R.L .M.’s 2 fourth issue on appe al. 3

Rule 324(b) of the Texas Rules of Civil Procedur e provides that a motion for new trial is 2 require d to prese rve five cate g ories of complaints on appeal : (1 ) a complaint on which evidenc e must be hear d, (2) a complaint that a jury finding is not supported by fac tually sufficie nt e vidence , (3) a complaint that a jury finding is ag ain s t t h e o v er whelmi ng weig ht of the evidenc e, (4) a complaint as to damag es, or (5) a complaint of incura ble jury arg ument. Tex. R. Civ. P. 324(b)( 1). Her e, R.L .M.’s complaint that he did not rec eive notice does not require the prese ntation of evidenc e beca use t he lack of not ice is apparent from the face of the record. Consequently , none of the five ca teg ories of complaints is applicable to R.L .M.’s asser tion that he did not rec eive notice of the expunction hearing

. I n his third issue, R.L .M. arg ues that the district court abused its discretion when it failed 3 to g rant his motion for a telephone confe renc e. I t is well established that litigants cannot be denied acc ess to t h e co urts simply beca use they are inmates. See Hudson v. Palmer , 468 U.S. 517, 523 (1984); In re Z.L.T

. , 124 S.W .3d 163, 166 (Tex. 2003). Even when an inmate’s persona l appea ranc e is not war rante d, the court must never theless aff ord the inmate other eff

ective means of participa ting, such as by confe renc e call. See Larson v. Giesensc hlag , 368 S.W .3d 792, 797 (Tex. App.—Austin 2 0 1 2 , n o p e t. ) ; s e e a ls o H

e in e v
. Te x a s D e p ’ t o f P u b

. S a fe ty , 9 2 S. W. 3 d 6 4 2 , 6 5 0 ( T e x. A p p . — A u s ti n 2002, pet. denied)

. Howeve r, beca use we have conclude d that R.L .M. was denied the oppor tunity to prese nt his side of the dispute in any manner when he did not rec eive notice of the chang e in the hear ing date, we need not decide this issue. Simi larly , beca use we have conclude d that the court should not have proce eded on the merits of R.L .M.’s petition without first providing him notice of the hear ing date, we do not rea ch R

. L .M.’s first and second issues on appea l, which rela te to the district court’s de cision on the merits. 5CONCLUSION
We reve rse t h e o rder of the district court and rema nd this cause for further
proce eding s consistent with this opi nion.

__________________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Jones, J ustices Goodwin and F ield
Reverse d and Remande d Filed: Nove mber 27, 2013

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