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Texas Department of Public Safety v. J.S.H.

Court of Appeals of Texas, Ninth District, Beaumont

August 3, 2017

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
v.
J.S.H., Appellee

          Submitted on October 3, 2016

         On Appeal from the 253rd District Court Liberty County, Texas Trial Cause No. CV-1509671

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          LEANNE JOHNSON Justice

         The Texas Department of Public Safety (DPS) brings this restricted appeal from an order expunging J.S.H.'s criminal records related to two charges of driving while intoxicated with a child under fifteen years old.

         Background

         On December 23, 2007, J.S.H was arrested in cause number CR27217 on two counts of driving while intoxicated with a child under fifteen years of age. On July 15, 2015, J.S.H. filed a petition to expunge the records relating to his arrest because the charges had been dismissed, and he requested that the following entities that he believed had records subject to expunction be served with notice of the petition: (1) Liberty Police Department; (2) Liberty County District Attorney's Office; (3) Texas Department of Public Safety, Crime Records Department; (4) Liberty County District Clerk's Office; (5) Liberty County Sheriff's Office; (6) Liberty County Clerk's Office; (7) Liberty County Adult Probation; (8) Texas Department of Public Safety, Expunctions; and the (9) Federal Bureau of Investigations. In a letter filed and dated September 28, 2015, and addressed to the Liberty County 253rd Court Coordinator, J.S.H.'s counsel stated the following:

This letter is to confirm that a submission hearing has been scheduled for Friday, October 9, 2015 at 9:00 a.m. in the 253rd District Court for submission of the proposed Order for Expunction in the above referenced matter.
By copy of this letter, I am notifying all interested parties of this setting.
This letter also serves as Lead Document for efiling the Proposed Order for Expunction to be presented to the Court for consideration on October 9, 2015.

         The letter noted that a copy ("cc") of the letter was provided to the "First Assistant

         District Attorney" and J.S.H. No other interested parties are listed in the "cc" section of the letter.

         The trial court held a hearing on the expunction petition on October 9, 2015. J.S.H. appeared personally with his attorney at the hearing and his attorney stated that J.S.H.'s expunction petition was "uncontested[, ]" that all parties were given notice, and that no parties filed a response to the petition. That same day, the trial court signed an Order for Expunction and ordered the entities named in the expunction petition, as well as the Dayton Police Department, to return all records and files concerning J.S.H.'s arrest in CR27217 to the trial court, or if not practical, to destroy such records or files. In accordance with the expunction order, the district clerk delivered, by certified mail, return receipt requested, a copy of the expunction order to the ...


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