Opinion
No. 05-09-00574-CV
Opinion Filed October 19, 2009.
On Appeal from the Criminal District Court No. 7, Dallas County, Texas, Trial Court Cause No. X09-039-Y.
Before Chief Justice THOMAS and Justices O'NEILL and MURPHY.
MEMORANDUM OPINION
Leroy Harold White appeals the trial court's summary judgment denying appellant's petition for expunction of records relating to a felony conviction for unauthorized use of a motor vehicle. In his first two issues, appellant generally contends the trial court erred by granting the State's motion because appellant's conviction was void due to the State's failure to present an indictment in compliance with the code of criminal procedure. In his third issue, appellant argues the trial court erred by failing to require the State to produce documents prior to granting the State's motion and that the indictment relied upon by the State as summary judgment evidence was not properly authenticated. We affirm the trial court's judgment.
Background
Appellant was charged with unauthorized use of a motor vehicle and entered an open plea of guilty to the trial court. Prior to the sentencing hearing, the clerk's record, including the indictment, appellant's written waivers, and his written judicial confession, was lost. At the sentencing hearing, the State presented a copy of the indictment, the reporter's record from the plea hearing, and a blank copy of the written waivers appellant would have executed. The trial court sentenced appellant to twenty years' imprisonment. We affirmed appellant's conviction. White v. State, No. 05-01-01620-CR, 2003 WL 22718787, at *3 (Tex. App,-Dallas Nov. 19, 2003, no pet.) (not designated for publication).
Appellant filed a petition to expunge his arrest for unauthorized use of a motor vehicle contending the conviction was void because the State failed to present a valid indictment. On March 6, 2009, the State moved for summary judgment asserting appellant's conviction was final and, therefore, appellant was not entitled to expunction as a matter of law. On March 26, 2009, appellant filed a request for production of documents by the State. The trial court granted summary judgment for the State on April 3, 2009, and this appeal ensued.
Motion for Summary Judgment
The State was entitled to summary judgment if it established there was no issue of material fact and appellant was not entitled to expunction as a matter of law. Tex. R. Civ. P. 166a(c). The right to expunction is neither a common law nor a constitutional right; rather, it exists as a statutory privilege. T.C.R. v. Bell County Dist. Attorney's Office, No. 03-08-00627-CV, 2009 WL 3319922, at *1 (Tex. App.-Austin Aug. 6, 2009, no pet.); Ex parte E.R.W., 281 S.W.3d 572, 573 (Tex. App.-El Paso 2008, pet. denied). Under article 55.01 of the Texas Code of Criminal Procedure, a person who has been placed under a custodial or noncustodial arrest for commission of a felony or misdemeanor offense is entitled to have all records and files relating to the arrest expunged if the person meets certain statutory requirements. See Tex. Code Crim. Proc. Ann. art. 55.01(a) (Vernon 2006); E.R.W., 281 S.W.3d at 573. A statutory expunction proceeding is civil rather than criminal in nature, and the burden of proving compliance with the statutory conditions rests with the petitioner. T.C.R., 2009 WL 3319922, at*1; Tex. Dep't of Public Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App. [14th Dist.] 2008, no pet.). All of the statutory provisions are mandatory and exclusive, and the petitioner is entitled to expunction only when all statutory conditions have been met. E.R.W., 281 S.W.3d at 573. The trial court has no equitable power to allow expunction where it is not allowed by statute. T.C.R., 2009 WL 3319922, at *1; J.H.J. 274 S.W.3d at 806.
Here, appellant asserts he is entitled to expunction of records relating to his arrest and conviction under article 55.01(a)(2)(A) because the State failed to present a valid indictment. However, to be entitled to expunction under article 55.01(a)(2), appellant was required to establish:
(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 has 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)(2) (emphasis added).
Effective June 19, 2009, article 55.01(a)(2)(A)(ii) was amended to read:
the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or because the presentment has 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.
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(ii). Because the statutory change does not affect this case, we will cite to the current statute for convenience.
Appellant entered a guilty plea to and was convicted of unauthorized use of a motor vehicle. Appellant's conviction is final. Therefore, appellant cannot meet the statutory requirement in article 55.01(a)(2)(B) that the charge did not result in a final conviction. Tex. Dep't of Public Safety v. Aytonk, 5 S.W.3d 787, 788 (Tex. App.-San Antonio 1999, no pet.) (petitioner's entry of nolo contendre plea and final conviction rendered him ineligible for expunction of arrest records as a matter of law). See also Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991) (expunction statute not designed "to allow a person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty plea" to expunge records); J.H.J., 274 S.W.3d at 810. Therefore, the trial court did not err by granting the State's motion for summary judgment. We overrule appellant's first two issues.
Summary Judgment Evidence
In his third issue, appellant first argues the trial court erred by granting summary judgment without requiring the State to respond to appellant's request for production of documents. Appellant filed his request for production of documents on March 26, 2009. As appellant recognized in his request, the State was not required to respond to the request for thirty days. See Tex. R. Civ. P. 196.2(a). The trial court granted the State's motion for summary judgment on April 3, 2009, less than thirty days after appellant propounded his discovery requests. Accordingly, the State was not required to produce any documents responsive to appellant's request before the trial court granted the State's motion. Further, appellant did not request the trial court delay consideration of the State's motion until after the State had responded to appellant's discovery requests. Accordingly, we conclude appellant waived any complaint that the trial court granted summary judgment prior to the completion of discovery. Tex. R. App. P. 33.1(a); Willms v. America Tire Co., Inc., 190 S.W.3d 796, 808 (Tex. App.-Dallas 2006, pet. denied).
Appellant requested the production of documents "pursuant to Federal Rules of Civil Procedure 34 Rule 34(A)(a)(B)" and concluded that the State "should serve a written re-response [sic] within 30 days after service of this motion." Treating appellant's request as a request for production of documents under the Texas Rules of Civil Procedure, the State would also have thirty days to respond. Tex. R. Civ. P. 196.2(a).
Appellant's final contention is that the copy of the indictment attached to the State's motion for summary judgment was not properly authenticated and does not contain the signature of the grand jury foreman. Appellant, however, does not challenge the State's summary judgment evidence establishing appellant's conviction was final. Because the State established as a matter of law that appellant could not meet the statutory requirement that the charge not have resulted in a final conviction, we need not consider whether the State established a proper indictment was presented against appellant. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B). We overrule appellant's third issue.
We affirm the trial court's judgment.