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Ex parte R.L.S

Court of Appeals of Texas, Tenth District

April 4, 2018

EX PARTE R.L.S.

          From the 77th District Court Limestone County, Texas Trial Court No. 1096-A

          Before Chief Justice Gray, Justice Davis, and Justice Scoggins

          MEMORANDUM OPINION

          TOM GRAY, Chief Justice

         R.L.S. appeals the trial court's denial of his petition for expunction. Because R.L.S. was not entitled to expunction, the trial court's judgment is affirmed.

         Background

         The material facts are not in dispute. In 1985, R.L.S. was indicted for the offense of burglary of a habitation in Freestone County. In 1986, R.L.S. turned himself in to Freestone County officials and left moments later, having posted bail for the offense. The next month, R.L.S. was arrested in Limestone County for driving with a suspended license (DWLS). He was also arrested on a warrant for the burglary of a habitation offense in Freestone County for which he had already posted bail and on warrants from the City of Mexia.[1] According to R.L.S., Limestone County officials learned that R.L.S. was not the person to whom the City of Mexia citations were issued and that the warrant from Freestone County regarding the burglary of a habitation offense was inactive. R.L.S. was permitted to post bail for the DWLS offense. Three days after this arrest in Limestone County, R.L.S. pled guilty to the burglary of a habitation offense and received deferred adjudication community supervision. In 2016, R.L.S. filed his petition for expunction of the Limestone County arrest.[2]

         Preliminary Matters

         Because several matters raised by R.L.S. may dispose of the appeal, we discuss those matters first before determining R.L.S.'s issues regarding whether the trial court erred in denying the petition for expunction.

         Standing

         We first consider R.L.S.'s standing argument. In response to the County's motion for extension of time to file its appellate brief after R.L.S. had filed his brief, R.L.S. asserted that the County did not have "standing" because it did not possess any records to be expunged. He further asserted that nothing in the motion for extension of time stated that the County represented any other party. Thus, his argument continued, the County was not a party and did not represent a party that had standing. When we granted the County's motion for extension of time to file its brief, we did so without prejudice to R.L.S., or this Court, raising a standing issue at a future date. The County then briefed the issue of standing and R.L.S. responded.

         As a general rule, to have standing, unless it is conferred by statute, a plaintiff must demonstrate that he or she possesses an interest in a conflict distinct from that of the general public, such that the defendant's actions have caused the plaintiff some particular injury. Williams v. Huff, 52 S.W.3d 171, 178 (Tex. 2001) (emphasis added). Here, the County was not the plaintiff in this expunction proceeding. Further, the County is not the appellant. See Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) (amended 2011) ("…an agency protesting the expunction may appeal….). Thus, the County's standing is not the issue.

         R.L.S.'s assertions, as best as we can decipher, pertain to whether the County had the capacity, or authority, to act when it did not have any records to be expunged. Although courts and parties have sometimes blurred the distinction between standing and capacity, there is a distinction, nonetheless. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). See e.g. In re R.A., 417 S.W3d 569, 580 (Tex. App.-El Paso, 2013, no pet.) (holding the District Attorney and the County had standing as appellees in an expunction appeal). A plaintiff has standing when it is personally aggrieved regardless of whether it is acting with legal authority; a party has capacity when it has the legal authority to act, regardless of whether it has a justiciable interest in the controversy. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-849 (Tex. 2005); Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996).

         While standing may be raised for the first time on appeal, a challenge to a party's capacity, on the other hand, must be raised by a verified pleading in the trial court or else it is waived. See Lovato, 171 S.W.3d at 849; see also Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003) ("An argument that an opposing party does not have the capacity to participate in a suit can be waived by a party's failure to properly raise the issue in the trial court."). Because R.L.S. did not file a verified plea contesting the County's capacity to participate in the expunction proceeding, his challenge is waived.

         Ju ...


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