Texas Department of Public Safety v. Borhani, No. 03-08-00142-CV (Tex. App. 10/3/2008)
| Decision Date | 03 October 2008 |
| Docket Number | No. 03-08-00142-CV.,03-08-00142-CV. |
| Parties | TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. KAISAR ABBAS BORHANI, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the District Court of Williamson County, 277th Judicial District, No. 06-646-C277, Honorable Ken Anderson, Judge Presiding.
Reversed and Remanded.
Before Justices PATTERSON, WALDROP and HENSON.
In this restricted appeal, the Texas Department of Public Safety ("DPS") appeals the trial court's expunction of Kaisar Abbas Borhani's conviction for theft. See Tex. R. App. P. 30. DPS contends that Borhani produced no evidence to support his petition for expunction and that the order was therefore erroneous. Because we find insufficient evidence to support the trial court's order of expunction, we reverse the trial court's order and remand to the trial court for further proceedings.
On August 29, 2006, Borhani filed a petition for expunction of his criminal record relating to his arrest and conviction for theft. In his petition, he admitted he had pleaded no contest to the offense of "Theft `B' reduced to Theft `C', a class C misdemeanor committed on 2/11/06 as charged by the complaint or information herein." According to his judgment and sentence, in July 2006, he was found guilty and ordered to pay a $250 fine. In his petition for expunction, Borhani alleged that because an "indictment or information was presented" but was "subsequently dismissed or quashed" and he pleaded no contest "thereby indicating a lack of probable cause at the time of the dismissal," the charge did not result in a final conviction and he was entitled to expunction pursuant to article 55.02 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.02 (West Supp. 2008). He properly notified DPS of his request pursuant to article 55.02. Id.
In response to the petition, DPS filed special exceptions, an affirmative defense, and a general denial, asserting that Borhani was not entitled to expunction because he pleaded no contest to the misdemeanor offense of theft and received a conviction pursuant to the plea, which is a bar to expunction. See id. art. 55.01 (West 2006). On August 29, 2006, the trial court set a hearing on the matter for October 5, 2006. The hearing was reset, and a hearing was eventually held on September 5, 2007. DPS does not complain that it did not receive notice of the hearing but it did not appear at the hearing.
At the hearing on September 5, 2007, Borhani's counsel offered no evidence. A transcript of the hearing shows that the hearing lasted for one minute and that Borhani's counsel represented to the court that the DPS attorney had been notified of the setting but was not present. The trial court granted the petition for expunction. In pertinent part, the order states that Borhani is entitled to expunction because the court finds:
that the circumstances surrounding the dismissal of said offense or the quashing of the indictment or information indicate that there was an absence of probable cause at the time of such dismissal because Petitioner entered a plea of no contest to the office [sic] of Theft "B" reduced to Theft "C" misdemeanor.
On appeal, DPS argues that the evidence in the record is legally insufficient to show strict compliance with "each of the [] conditions" of article 55.01(a)(2), because Borhani presented no evidence that he was entitled to expunction. Further, DPS argues that Borhani was not entitled to expunction because he pleaded no contest to the offense he sought to expunge and article 55.01 generally prohibits expunction of an arrest that results in a conviction.
To attack an order by restricted appeal, DPS must show (1) it was a party who did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of; (2) it filed a notice of appeal within six months after the order was signed; (3) it did not timely file a postjudgment motion or request findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Borhani does not contest that DPS is a proper party to this suit, and DPS did not participate in the hearing in which the expunction was granted. The record also reflects that DPS filed a notice of a restricted appeal within six months of the expunction order, and did not file any postjudgment motions. Thus, DPS has satisfied the first three requirements for a restricted appeal. We must then determine whether DPS has met the fourth element—that error is apparent on the face of the record. See Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). The face of the record includes all papers on file in the appeal and the reporter's record, if any. Id. A restricted appeal affords the appellant the same scope of review as an ordinary appeal, i.e., the entire case. Id.
Texas Code of Criminal Procedure article 55.01 governs a petitioner's right to an expunction; article 55.02 governs the procedures for expunctions. See Tex. Code Crim. Proc. Ann. arts. 55.01, 55.02. These provisions are mandatory and must be complied with in an expunction proceeding. See, e.g., Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.-San Antonio 1997, no writ).
The petitioner in an expunction proceeding has the burden of proving compliance with the statutory requirements. McCarroll v. Texas Dep't of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.-Fort Worth 2002, no pet.); Texas Dep't of Pub. Safety v. Aytonk, 5 S.W.3d 787, 788 (Tex. App.-San Antonio 1999, no pet.). Article 55.01 of the Texas Code of Criminal Procedure provides wrongfully arrested persons the opportunity to expunge their arrest records. Tex. Code Crim. Proc. Ann. art. 55.01; McCarroll, 86 S.W.3d at 378. Although section 55.01 is in the Texas Code of Criminal Procedure, an expunction proceeding is civil in nature. McCarroll, 86 S.W.3d at 378.
Borhani, as the one requesting expunction, bears the burden of proof. Ex parte Wilson, 224 S.W.3d 860, 862 (Tex. App.-Texarkana 2007, no pet.); Heine v. Texas Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied);Texas Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 650 (Tex. App.-Corpus Christi 2002, no pet.). Expunction will not be granted unless the petitioner satisfies each of the statutory requirements. Wilson, 224 S.W.3d at 862-63; Perdue v. Texas Dep't of Pub. Safety, 32 S.W.3d 333, 335 (Tex. App.-San Antonio 2000, no pet.). Moreover, courts have no equitable power to extend the right to expunction beyond that allowed by statute. Williams, 76 S.W.3d at 650; Texas Dep't of Pub. Safety v. Wiggins, 688 S.W.2d 227, 229 (Tex. App.-El Paso 1985, no writ).
Article 55.01(a) provides that a petitioner is entitled to expunction when:
(1) the person is tried for the offense for which the person was arrested and is:
(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or
(B) convicted and subsequently pardoned; or
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court ordered community supervision under Article 42.12 for any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex. Code Crim. Proc. Ann. art. 55.01(a)(1), (2).
The trial court is required to set a hearing on a petition for expunction. Id. art. 55.02, § 2(c); McCarroll, 86 S.W.3d at 378. Such a hearing does not necessarily have to be an oral hearing. Wilson, 224 S.W.3d at 863; see, e.g., Gulf Coast Inv. Corp. v. NASA 1 Bus. Ctr., 754 S.W.2d 152, 153 (Tex. 1988) (). A trial court, for example, may rule on an expunction petition without conducting a formal hearing and without considering live testimony, if it has available the necessary proof to satisfy the various requirements of the statute. Wilson, 224 S.W.3d at 863.
DPS contends that the trial court erred in granting Borhani's petition for expunction because Borhani failed to submit evidence to satisfy the statutory requirements for expunction. Specifically, DPS asserts that Borhani was required to prove that he satisfied the...
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