Texas Dept. of Public Safety v. Butler

• Decision Date: 16 January 1997
• Docket Number: No. 13-95-577-CV,13-95-577-CV
• Citation: 941 S.W.2d 318
• Parties: TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Robert BUTLER, Appellee.
• Court: Texas Court of Appeals

Page 318

941 S.W.2d 318

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Robert BUTLER, Appellee.

No. 13-95-577-CV.

Court of Appeals of Texas Corpus Christi.

Jan. 16, 1997.

Charles R. Maddox, Asst. General Counsel, Texas Dept. of Public Safety, John C. West, Jr., Chief, Legal Services Div., Dept. of Public Safety, John Frank Davis, Asst. Attorney General, Austin, for appellant.

David M. Jordan, Corpus Christi, for appellee.

Before SEERDEN, C.J., and FEDERICO G. HINOJOSA, Jr., and YANEZ, JJ.

OPINION

SEERDEN, Chief Justice.

The Texas Department of Public Safety appeals from an order expunging the arrest record of Robert Butler. The Department raises five points of error. We reverse and render.

Butler was arrested on June 4, 1990, by police officers in the City of Corpus Christi for third degree felony theft. He alleged in his petition for expunction, filed in the 94th District Court in Nueces County, that he had been tried and acquitted of the offense. He asked that his arrest records be expunged from the files of the Department, as well as from other law enforcement agencies in this State. The Texas Department of Public Safety was specifically named as an agency that should be served with notice of the petition.

A statement of facts from the hearing on September 22, 1995, reveals that an assistant Nueces County District Attorney appeared on behalf of the State and announced ready. Butler asked the trial court to take judicial notice of the file in the criminal case, No. 90-CR-1971-H, which the trial court indicated that it would. The attorneys' representations at the hearing and the criminal file indicate that Butler had been indicted for stealing a jet ski, pleaded guilty, and in January of 1991 was placed on deferred adjudication probation for a term of three years. The terms of probation included, among other things, monthly reports to a probation officer, 600 hours of community service, and attendance at rehabilitation classes. However, by order entered on May 13, 1992, that court discharged Butler from probation, and dismissed the criminal proceeding, because of the successful completion of a sufficient term of probation. No further testimony or evidence was received. The district attorney argued that Butler was not entitled to expunction under the relevant statute ¹, but the trial court indicated that it believed expunction to be appropriate under the circumstances.

By order signed on September 28, 1995, the trial court expunged Butler's arrest record. The Department then filed on October 19, 1995, a request for findings of fact and conclusions of law, which the record shows to have been timely mailed as of October 18, 1995. See Tex.R.Civ.P. 296, 21a. The trial court denied the request by a written and signed "response" which stated that the Department had been given notice of the petition and hearing, but had failed to respond or appear at the hearing, and thus is not a party to the present proceeding. On November 28, 1995, the Department filed its notice of appeal from the expunction order.

Before addressing the Department's points of error, we address Butler's complaint that, because the Department failed to answer the notice of expunction or attend the hearing through its counsel, it had no standing to request findings and conclusions or to prosecute the present appeal.

The Texas Department of Public Safety has been established by statute as an agency of this State. Tex. Gov't Code Ann. § 411.002(a) (Vernon 1990). With regard to civil lawsuits generally, an agency of the state is generally treated as the equivalent of the State itself. See Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976).

The Texas Constitution specifically grants to county and district attorneys the right to represent the State in all cases in the district and inferior courts in their respective counties. Tex. Const. Art. V, § 21; see State Bd. of Dental Examiners v. Bickham, 203 S.W.2d 563, 566 (Tex.Civ.App.--Dallas 1947, no writ). In particular, the district attorney represents the State in all criminal cases in the district courts of his district. Tex.Code Crim.Proc.Ann. art. 2.01 (Vernon Supp.1997). However, the district attorney's role is not necessarily limited to criminal proceedings. In the absence of a specific legislative enactment to the contrary, the Constitution provides for either the district attorney or the county attorney, jointly or singly, in the event either fails to act, to be the proper officer to represent the State in the district court in civil actions. See Garcia v. Laughlin, 155 Tex. 261, 285 S.W.2d 191, 195 (1955); Holmes v. Morales, 906 S.W.2d 570, 574 (Tex.App.--Austin 1995), rev'd on other grounds, 924 S.W.2d 920 (Tex.1996); see also Hill v. Texas Water Quality Bd., 568 S.W.2d 738, 741 (Tex.Civ.App.--Austin 1978, writ ref'd n.r.e.); Bickham, 203 S.W.2d at 566 ("[n]or may the State be represented in the district or inferior courts by any person other than the county or district attorney, unless such officer joins therein.").

However, the statutory procedure for expunction of arrest records also provides for the participation of counsel representing the various law enforcement agencies that have records or files subject to expunction. Accordingly, the statute requires the trial court to give reasonable notice of the hearing to each official, agency or other entity named by the petitioner as having records or files subject to expunction, "and such agency may be represented by the attorney responsible for providing such agency with legal representation in other matters." Tex.Code Crim.Proc.Ann. art. 55.02(2) (Vernon Supp.1997). Moreover, if expunction is ordered, "[a]ny petitioner or agency protesting the expunction may appeal the court's decision in the same manner as in other civil cases." Tex.Code Crim.Proc.Ann. art. 55.02(3)(a) (Vernon Supp.1997). Accordingly, the Department, as an agency of the State with records or files subject to the expunction, clearly has standing to contest expunction and to appeal the present order granting expunction. See State v. Sink, 685 S.W.2d 403, 404 (Tex.App.-Dallas 1985, no writ).

In addition, though it did not appear through agency counsel at the hearing, the Department did not waive its right either to appeal or to request findings and conclusions following that hearing. We hold that the Department was present at the hearing through the presence of the Nueces County District Attorney.

Texas law governing expunction of criminal records creates a unique situation in which all persons and agencies party to an expunction action share not only interwoven but identical interests. These agencies, along with the public, share the common goals of uniform management of documentation and effective deterrence of recidivism, both of which are achieved by maintenance of arrest records. See Ex parte Elliot, 815 S.W.2d 251, 252 (Tex.1991).

Because expunction is a civil proceeding, the statute allows each law enforcement agency cited to represent itself, rather than being forced to rely on the district attorney to represent its interest at the hearing as it would be in a criminal proceeding. See Texas Dept. of Public Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex.App.--Houston [1st Dist.] 1994, no writ) (only the DPS appeared at the hearing to contest expunction). Accordingly, other law enforcement agencies which appear at the hearing are not bound by the district attorney's actions or agreements concerning expunction. Id. at 458.

However, although Katopodis stands for the proposition that the Department may separately appear at an expunction hearing, it does not imply that the Department and other state agencies, in the absence of a separate appearance, are not in fact represented by the district attorney. The identical interests of the various law enforcement agencies involved, such that relief granted or denied to one amounts to relief granted or denied to all, clearly requires some coordination of effort by the State. We conclude that the county or district attorney is the primary representative for the State and thus for the interests of all of the various state agencies that may protest the expunction. Having originally prosecuted the criminal action, the district attorney is in the best position...