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In re M.B.

Court of Appeals of Texas, Second District, Fort Worth

September 8, 2017

IN RE M.B. RELATOR

         ORIGINAL PROCEEDING TRIAL COURT NO. C2016374

          PANEL: PITTMAN, MEIER, and KERR, JJ.

          MEMORANDUM OPINION [1]

          PER CURIAM

         In July 2017, pro se Relator M.B. filed a petition for writ of mandamus in this court, asking us to compel Respondent, the Honorable Ralph H. Walton Jr., to hold a hearing, to rule on Relator's petition for expunction, and to enter an order of expunction. The State agrees that Relator is entitled to a hearing and ruling. We conditionally grant relief in part.

         I. Procedural and Factual Background

         On January 9, 2017, Relator filed a petition for expunction in the 355th District Court, seeking the expunction of all records and files arising out of a misdemeanor case in Hood County for which he was acquitted several years ago. See Tex. R. Evid. 201 (allowing courts to judicially notice facts not subject to reasonable dispute); Tex. Code Crim. Proc. Ann. art. 55.02, § 2(a) (West Supp. 2016) (requiring the petition for expunction to be filed in a district court for the county in which the petitioner was arrested or the offense was alleged to have occurred). Within the petition, he also asked that his petition be set for hearing. Respondent has not yet set the petition for hearing or ruled on it.

         Contemporaneously, Relator filed a separate "Motion for Bench Warrant or in the Alternative Motion for Hearing by Conference Call." Respondent timely denied that motion. Relator attempted to appeal that denial in this court, but this court dismissed his appeal for want of jurisdiction because that order is an unappealable interlocutory order. Ex parte M.B., No. 02-17-00070-CV, 2017 WL 2805871, at *1 (Tex. App.-Fort Worth June 29, 2017, no pet.) (mem. op.). While that appeal was still pending, Relator filed a noncompliant petition for writ of mandamus in this court; his compliant petition seeking mandamus relief in this court was filed July 17, 2017.

         II. Discussion

         In his petition for writ of mandamus, Relator contends that Respondent abused his discretion by

. failing to set the petition for expunction for hearing;
. failing to rule on the petition for expunction; and
. failing to order the expunction as requested.

         A. Standard of Review

         Mandamus relief is proper only to correct a clear abuse of discretion when there is no "adequate remedy at law, such as a normal appeal." In re H.E.B. Grocery Co., LP.,492 S.W.3d 300, 304 (Tex. 2016) (orig. proceeding) (quoting State v. ...


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