Ex parte Stiles

• Decision Date: 08 October 1997
• Docket Number: No. 10-97-041-CV,10-97-041-CV
• Citation: 958 S.W.2d 414
• Parties: EX PARTE Timothy Lee STILES, Appellant.
• Court: Texas Court of Appeals

Page 414

958 S.W.2d 414

EX PARTE Timothy Lee STILES, Appellant.

No. 10-97-041-CV.

Court of Appeals of Texas,

Waco.

Oct. 8, 1997.

John C. West, Jr., Chief of Legal Services, J. Frank Davis, Senior Hearing Examiner, Charles R. Maddox, Asst. Gen. Counsel, Texas Department of Public Safety, Austin, for appellant.

Mitchell Madden, Michelle P. Nicaud, Dallas, for appellee.

Before DAVIS, C.J., and CUMMINGS and VANCE, JJ.

OPINION

CUMMINGS, Justice.

Appellant's motion for rehearing is denied. Our opinion issued August 6, 1997, in this cause is withdrawn and the following opinion is substituted.

The appellant, Texas Department of Public Safety, appeals by writ of error the order of the 40th District Court of Ellis County granting an expunction of the arrest record of the appellee, Timothy Lee Stiles. The Texas Department of Public Safety (D.P.S.) contends that it has met the requirements to appeal by writ of error and brings five points of error.

I. Factual and Procedural Background

Timothy Lee Stiles was indicted by an Ellis County grand jury on February 21, 1990, for sexual assault and indecency with a child. See TEX. PEN.CODE ANN. § 22.011 (Vernon 1994 & Supp.1997), § 21.11 (Vernon 1994). Subsequently the district attorney learned new information regarding the complainant's past sexual conduct. This information had not been presented to the grand jury, nor had information about the complainant's psychiatric history been presented because the district attorney believed it was irrelevant. The new information provided Stiles with a defense which the district attorney believed would lead to Stiles' acquittal on the charges filed. Therefore, the district attorney went back to the grand jury twice seeking an indictment on different charges stemming from the same incident. Both grand juries returned a "no-bill" refusing to indict Stiles. The district attorney, on June 19, filed a motion to dismiss the original indictment claiming that there was insufficient evidence to proceed.

Stiles filed a petition for expunction of his arrest record on March 10, 1996. See TEX.CRIM. PROC.CODE ANN. art. 55.01 (Vernon Supp.1997). The trial court set the expunction hearing for April 24, 1996. The court's order directed the clerk to give the required notice of the expunction hearing to the state and federal agencies listed in Stiles' petition. D.P.S. was among the named agencies receiving notice of Stiles' petition for expunction, but it did not appear to oppose the expunction. The Ellis County District Attorney ¹ filed an answer requesting that Stiles' petition for expunction be denied.

At the hearing on April 24, Stiles presented evidence in support of his petition for expunction. D.P.S. was not represented by counsel at the hearing, but an assistant district attorney appeared at the hearing to oppose Stiles' petition. On April 26, 1996, the trial judge informed both parties by letter that the petition for expunction would be denied because Stiles presented no evidence he had not been convicted of a felony in the five years preceding the date of his arrest. See TEX.CRIM. PROC.CODE ANN. art. 55.01(a)(2)(C) (Vernon Supp.1997). Stiles then petitioned the trial court to reopen the record, or in the alternative to grant a new trial. The trial judge granted Stiles' petition to reopen the record at a hearing on July 9. During this second hearing Stiles testified that he had never been convicted of a felony. The trial judge then granted the expunction of Stiles' arrest record. The last hearing in the trial court occurred on August 6 when the parties discussed the terms of the order of expunction, which was signed by the trial judge on that date. At the request of the Ellis County District Attorney, the trial court also made findings of fact and conclusions of law.

II. Appeal by Writ of Error

D.P.S. and the Ellis County District Attorney have filed separate appeals challenging the order of expunction. D.P.S. contends that it has met the requirements to appeal by writ of error: (1) filing a writ of error within six months after the trial judge signed the final judgment, (2) being a party to the lawsuit, (3) having not participated in the actual trial of the case, and (4) demonstrating error apparent on the face of the record. See Withem v. Underwood, 922 S.W.2d 956, 957 (Tex.1996); General Elec. Co. v. Falcon Ridge Apartments, 811 S.W.2d 942, 943 (Tex.1991); see also TEX.R.APP. P. 45. Stiles claims that appeal by writ of error is inappropriate because D.P.S. participated in the trial of the case and has demonstrated no error apparent on the face of the record.

Stiles argues that the State of Texas was represented at the trial by the Ellis County District Attorney. See TEX. CONST . art. V, § 21. Thus, Stiles claims D.P.S., as a state agency, was also represented by the district attorney and cannot appeal by writ of error because of this participation in the actual trial. See Texas Dep't of Pub. Safety v. Butler, 941 S.W.2d 318, 319-20 (Tex.App.--Corpus Christi 1997, no writ) (holding that if the Department of Public Safety chooses not to appear it is represented by the district attorney who is acting on behalf of the State); Texas Dep't of Pub. Safety v. Riley, 773 S.W.2d 756, 759 (Tex.App.--San Antonio 1989, no writ) (Butts, J., concurring).

The San Antonio Court of Appeals addressed this precise question in the recent case of Texas Department of Public Safety v. Deck, 954 S.W.2d 108 (Tex.App.--San Antonio 1997, n.w.h.). In Deck the court held that the district attorney did not represent D.P.S. in expunction hearings because the hearing is a civil proceeding in which "each law enforcement agency is entitled to represent itself." Id., at 111. We find the reasoning of the San Antonio Court of Appeals persuasive. The procedure established by the legislature for expunction hearings is unique because each law enforcement agency listed in the petition who has records which are subject to expunction may appear in court to oppose the expunction and may appeal the court's decision "in the same manner as in other civil cases." TEX.CRIM. PROC.CODE ANN. art. 55.02 §§ 2, 3(a) (Vernon Supp.1997). Thus, because each agency may make a separate appearance in court and may separately appeal the decision, one agency does not represent the others in court and does not participate in the trial on behalf of all agencies notified of the expunction. Deck, at 111; see also Texas Dep't of Pub. Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex.App.--Houston [1st Dist.] 1994, no writ) (holding that D.P.S. is not bound by the district attorney's agreement not to oppose expunction petition).

In support of its argument that it did not participate at trial, D.P.S. filed with this court a "Motion in Support of Jurisdiction." Attached to this motion are affidavits from two assistant district attorneys stating that they did not represent D.P.S. at trial and a certified copy of a letter from the Office of the Attorney General authorizing D.P.S. to represent itself in expunction actions. In determining this court's jurisdiction over D.P.S.' writ of error, we have properly considered the affidavits and certified public record which D.P.S. has filed. See Stewart v. Texco Newspapers, 734 S.W.2d 175, 177 (Tex.App.--Houston [1st Dist.] 1987, no writ); see also In re Estate of Hillje, 830 S.W.2d 689, 691 (Tex.App.--San Antonio 1992, no writ).

Stiles' reply point asserting that D.P.S. participated at trial is overruled because we hold that the Ellis County District Attorney did not represent D.P.S. at trial. As a matter of law the district attorney does not automatically represent D.P.S. at expunction proceedings and D.P.S. has shown by affidavit that there was no agreement for the Ellis County District Attorney to represent D.P.S. at trial.

III. Points of Error

In five points of error D.P.S. asserts that error is apparent on the face of the record because: (1) D.P.S. did not receive proper notice of the July 9 or August 6 hearings; (2) Stiles' expunction petition was not properly verified; (3) Stiles failed to prove that Ellis County was the county of arrest; (4) no evidence supports the trial court's finding that Stiles is entitled to an expunction of his record; (5) insufficient evidence supports the trial court's finding that Stiles is entitled to an expunction of his record.

A. Was D.P.S. entitled to thirty days notice of the second

and third hearings on Stiles' petition for expunction?

In its first point of error, D.P.S. claims the trial court committed fundamental error when D.P.S. was not given thirty days notice of the July 9 or the August 6 hearings. The Code of Criminal Procedure requires that expunction hearings be held at least thirty days after the filing of the petition and that law enforcement agencies listed in the expunction petition receive reasonable notice of the hearing by certified mail. TEX.CRIM. PROC.CODE ANN. art. 55.02 § 2. If reasonable notice is not given to law enforcement agencies this violates the statute and is reversible error. Rodriguez v. T.M.B., 812 S.W.2d 449, 450 (Tex.App.--San Antonio 1991, no writ); Riley, 773 S.W.2d at 758. However, in the instant case the record reflects that D.P.S. received reasonable notice of the expunction hearing held on April 24. Stiles' expunction petition was filed on March 10, and the expunction hearing was held more than thirty days later, on April 24. The transcript contains a signed order directing that the clerk of the court mail a copy of the expunction petition and order setting the expunction hearing on April 24 to the law enforcement agencies on the certified mail list. Absent contrary evidence, the law presumes the clerk of the court properly carried out this official duty and mailed notice to D.P.S. informing it of the date of the expunction hearing. See Sanchez v. Texas Indus., 485 S.W.2d 385, 387 (Tex.Civ.App.--Waco 1972, writ ref'd n.r.e.).

D.P.S. claims that, although it did not appear...