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Ex parte V.A.

Court of Appeals of Texas, Second District, Fort Worth

May 11, 2017

EX PARTE V. A., JR.

         FROM THE 211TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 16-07168-211

          PANEL: LIVINGSTON, C.J.; WALKER and PITTMAN, JJ.

          MEMORANDUM OPINION[1]

          TERRIE LIVINGSTON CHIEF JUSTICE

         Pro se appellant V.A., Jr. appeals the trial court's order dismissing his petition for expunction. In three points, he contends that the order is erroneous because he meets the statutory requirements for an expunction and that the court's failure to conduct an evidentiary hearing before signing the order violated his constitutional rights to due process and to access to courts. We disagree with these arguments and affirm the trial court's order.

         Background Facts

         Appellant filed a petition for expunction of records relating to his "charge and confinement" for aggravated robbery "in Denton County Cause No. F-2007-0838-C." In the petition, he conceded that he was "currently incarcerated" on the "charge at issue." Nonetheless, he claimed that under chapter 55 of the code of criminal procedure, [2] he was entitled to have all records and files related to that charge expunged.

         To the petition, appellant attached a "Register of Actions" related to a different Denton County case, cause number F-2007-1732-C. That cause related to a charge for theft, and the register indicated that the theft charge had been dismissed. Appellant also filed a declaration of his inability to pay costs related to the expunction petition.

         The State answered the expunction petition. In the answer, the State contended that appellant was not entitled to expunction of records related to cause number F-2007-0838-C because he was found guilty in that case and was serving a twenty-three-year sentence. Thus, the State contended that appellant's petition was frivolous and asked the trial court to dismiss it. Appellant did not file any documents contradicting the State's assertions that he was convicted of aggravated robbery in cause number F-2007-0838-C and that he was serving his sentence for that offense.

         In accordance with the State's request, the trial court signed an order dismissing appellant's expunction petition. Appellant brought this appeal.

         The Resolution of Appellant's Points

         We construe appellant's three points as presenting contentions that he met the requirements for an expunction under chapter 55, that the trial court violated his right of due process by not conducting an evidentiary hearing before dismissing his petition, and that the court's failure to hold a hearing also violated his right of access to courts. The State contends that the trial court did not err because appellant cannot establish the statutory conditions for an expunction and because under the circumstances of this case, the law did not require the court to hold an evidentiary hearing. We agree with the State's arguments.

         Generally, we review a trial court's ruling on an expunction petition under an abuse-of-discretion standard. Ex parte S.B.M., 467 S.W.3d 715, 717 (Tex. App.-Fort Worth 2015, no pet.). But to the extent a ruling on an expunction petition turns on a question of law, we review the ruling de novo because a trial court has no discretion in determining what the law is or in correctly applying the law to the facts. Id.

         No entitlement to expunction

         Article 55.01 of the code of criminal procedure provides a statutory right to expunge criminal records under certain conditions. See Tex. Code Crim. Proc. Ann. art. 55.01; S.B.M., 467 S.W.3d at 718 ("An expunction will be granted only when a petitioner satisfies all statutory conditions. The petitioner bears the burden of demonstrating that each statutory condition has been met." (citations omitted)); State v. N.R.J., 453 S.W.3d 76, 79 (Tex. App.-Fort Worth 2014, pet. denied) ("A petitioner's right to an expunction is purely a matter of statutory privilege, and the petitioner bears the burden of demonstrating that each of the required statutory conditions [has] been met."). Article 55.01 states in part, (a) A person who has ...


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