Opinion
No. 08-18-00112-CV
08-28-2019
In the MATTER OF the Expunction of L.B.
ATTORNEY FOR THE APPELLEE, Kevin McCary, Assistant County Attorney, 500 E. San Antonio, Rm. 503, El Paso, TX 79901. ATTORNEY FOR APPELLANT, Michael R. Gibson, 521 Texas Avenue, El Paso, TX 79901.
ATTORNEY FOR THE APPELLEE, Kevin McCary, Assistant County Attorney, 500 E. San Antonio, Rm. 503, El Paso, TX 79901.
ATTORNEY FOR APPELLANT, Michael R. Gibson, 521 Texas Avenue, El Paso, TX 79901.
Before Rodriguez, J., Palafox, J., and Jewell, J., Jewell, J. (Sitting by Assignment)
OPINION
YVONNE T. RODRIGUEZ, Justice
L.B. appeals the trial court's denial of her petition for an expunction on substantive and procedural grounds. Substantively, she contends that her otherwise voluntary waiver of the right to an expunction was made unlawful and ineffective by Section 76.011 of the Texas Government Code. Procedurally, she maintains that she was harmed both by the trial court quashing subpoenas she issued against various county officials and by the regional presiding judge's decision refusing to recuse the trial judge on bias-against-counsel grounds.
We affirm the judgment of the trial court.
BACKGROUND
In 2009, L.B. was charged with theft. L.B. participated in and successfully completed a pretrial diversion program that resulted in the District Attorney's Office dropping the theft charge. However, a term of the pretrial diversion agreement that L.B. signed stated that as a condition of participating in the program, she agreed to waive her right to an expunction.
In 2017, L.B. filed a petition for an expunction. As part of her expunction suit, she subpoenaed Judge Alma Trejo; El Paso County Attorney JoAnne Bernal; El Paso District Attorney Jaime Esparza; and El Paso County Clerk Delia Briones along with the county director of the probation department and a probation supervisor (the County Respondents). Bernal, representing herself and the County Respondents, filed motions to quash the subpoenas on multiple grounds, including for procedural defects and lack of relevance of their testimony. The trial judge orally granted the motion to quash as to all County Witnesses except County Clerk Delia Briones, who agreed to provide to L.B. with documents.
At a hearing that was apparently set as a final hearing, L.B. filed a motion to recuse the trial judge (the Honorable Sam Medrano of the 243rd District Court), alleging that Judge Medrano manifested bias and personal animosity against her attorney, Michael Gibson. The matter was referred to Regional Presiding Judge Steven Ables, who denied the motion to recuse.
Later, the County on behalf of numerous respondents filed a motion for summary judgment, contending that the expunction waiver that L.B. signed as part of her pretrial diversion agreement precluded the granting of an expunction as a matter of law. The trial court ultimately granted the motion for summary judgment. L.B. appealed.
DISCUSSION
L.B. has raised three issues in this appeal. In Issue One, L.B. contends that the trial court erred by quashing her subpoenas. In Issue Two, L.B. maintains that the requirement that she waive her right to an expunction in order to obtain entry into the pretrial diversion program was unlawful under Section 76.011. In Issue Three, she asserts that the regional presiding judge erred by failing to recuse the trial judge based on the trial judge's personal animosity against her lawyer.
We will address these issues out of order, beginning with the merits of L.B.'s claim before turning to her procedural complaints.
Merits
In Issue Two, L.B. maintains that the trial court improperly granted summary judgment in the County's favor based on her signed waiver of the right to an expunction, as the practice of obtaining an expunction waiver is prohibited by statute. We disagree.
Summary judgment is proper where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a. As explained below, the dispositive facts in this expunction case are undisputed. The only outstanding questions related to this issue are purely legal—namely, the proper interpretation of Section 76.011 of the Texas Government Code and the determination of whether the pretrial diversion agreement at issue violated Section 76.011. We review these legal questions de novo. Rio Valley, L.L.C. v. City of El Paso , 441 S.W.3d 482, 491 (Tex.App.—El Paso 2014, no pet.) (statutory interpretation is a legal question).
As the County correctly notes, this Court has previously upheld voluntary waivers of the right to an expunction, including waivers signed in connection with a defendant's entry into a pretrial diversion program. See, e.g. , In re Expunction of Arnold , 34 S.W.3d 583, 585 (Tex.App.—El Paso 2000, no pet.) (upholding the same pretrial diversion program waiver at issue in this case against voluntariness and other challenges). And L.B. does not argue that her signed waiver was involuntary as a matter of fact. Rather, L.B. argues that as a matter of law the use of diversion agreements conditioning entry into a pretrial diversion program on the waiver of the right to an expunction at the behest of the District Attorney is unlawful under Section 76.011. This specific question of whether the practice has been prohibited by statute is apparently one of first impression for this Court.
Section 76.011, which deals with the operation of community supervision services, states in relevant part:
(a) The department may operate programs for:
(1) the supervision and rehabilitation of persons in pretrial intervention programs;
...
(b) Except as otherwise provided by this subsection, programs operated by the department under Subsection (a) may include reasonable conditions related to the purpose of the program, including testing for controlled substances. If this subsection conflicts with a more specific provision of another law, the other law prevails.
TEX.GOV'T CODE ANN. § 76.011(a)(1) - (b).
While L.B. asserts that the imposition of an expunction waiver as a condition of obtaining pretrial diversion was made unlawful by Section 76.011, L.B.'s briefing on this important question is underdeveloped, to say the least. We have a duty to construe briefs liberally but reasonably, but we also note that the appellant's duty of adequate briefing encompasses a duty to engage in analysis, and that while the question of whether the duty to analyze has been satisfied is necessarily context-driven, "[t]he assertion of a legal conclusion in a sentence followed by a citation to a case [or statute] is not always enough to meet the briefing standard if the link between the conclusion and the case [or statute] is not obvious." Ridge Nat. Res., L.L.C. v. Double Eagle Royalty, L.P. , 564 S.W.3d 105, 127 (Tex.App.—El Paso 2018, no pet.).
Besides citing Section 76.011 generally and then asserting that the District Attorney's use of expunction waivers in pretrial diversion agreements violates Section 76.011, L.B. does not specifically explain what in the statutory language explicitly or implicitly prohibits the District Attorney or the Pre-Trial Diversion Office from conditioning entry into the pretrial diversion program on the waiver of the right to expunction. Instead, L.B. simply states that requiring a waiver of the right to an expunction violates Section 76.011 because waiving expunction "has nothing to do with the purposes of pre-trial diversion." However, L.B. never fully explains why the expunction waiver has nothing to do with the purposes of pretrial diversion, putting this Court in the position of having to guess at the reason or fill in the gaps in L.B.'s argument and thereby risk abandoning a position of neutrality and inadvertently becoming an advocate on L.B.'s behalf.
In its reply brief, the County maintains that the District Attorney has the discretion to include a waiver of the right to expunctions in pretrial diversion agreements, referring us to a Texas Attorney General opinion stating that "there is no legal authority directly limiting the scope of a pretrial intervention agreement." Tex. Att'y Gen. Op. No. GA-0986, at 2 (2013). The County also highlights Section 76.011(b), which allows programs operated by the department to include "reasonable conditions." The County argues that the imposition of an expunction waiver as a precondition to pretrial diversion is reasonable, but, as with L.B.'s brief, the County does not elaborate why; instead, the County simply refers us to previous decision from this Court upholding expunctions against voluntariness challenges. Those cases do not squarely address the issue of whether the otherwise lawful practice of obtaining voluntary expunction waivers from defendants has since been prohibited by Section 76.011.
As the Attorney General's Opinion observes, there is limited guidance from the statute regarding what constitutes a "reasonable condition" imposed as part of a pretrial diversion program. Tex. Att'y Gen. Op. No. GA-0986, at 2. The parties' focus on matters other than on whether conditioning pretrial diversion on expunction relief is reasonable under Section 76.011(b) has hampered our ability to answer this question directly. Instead, we must resolve this case within the confines of the arguments with which we have been presented and under the standards of review by which we are bound. Ultimately, L.B. as appellant bears the burden of proving she is entitled to appellate relief. L.B. has not established in her brief that Section 76.011 explicitly or implicitly prohibits the use of expunction waivers, nor has she shown to the Court's satisfaction that an expunction waiver is an unreasonable condition inconsistent with Section 76.011(b) ; her bare assertion—without citation to authority or any expository argument—that the expunction waiver is unrelated to the purposes of pretrial diversion is not enough to meet the standard for appellate reversal.
Absent any substantive, persuasive argument from L.B. demonstrating that the District Attorney's practice of obtaining expunction waivers is prohibited by the pretrial diversion program enabling statute, our prior cases dealing with voluntary expunction waivers in the Arnold line control the outcome of this case. And since L.B. does not point to any evidence in the record showing that her assent to the agreement was not knowing or voluntary sufficient to create a fact issue precluding summary judgment, we find that her waiver was effective and that summary judgment based on waiver was proper.
Issue Three is overruled.
Subpoenas
Given that summary judgment was proper on the merits, we now turn our attention to whether a harmful procedural defect may have nonetheless made the otherwise proper summary judgment subject to appellate reversal. See TEX.R.APP.P. 44.1 (establishing that a civil judgment may be reversed based on the presence of a procedural error only if the error was harmful). L.B. raises two procedural complaints. We will begin with those related to her attempts to subpoena various county elected officials.
In Issue One, L.B. contends that the trial court erred by quashing her subpoenas. We disagree.
Expunction proceedings are civil, meaning that the Texas Rules of Civil Procedure govern. See State v. T.S.N. , 547 S.W.3d 617, 619 (Tex. 2018) ; In re Expunction of J.S. , 392 S.W.3d 334, 337 (Tex.App.—El Paso 2013, no pet.) (applying civil rule standards). We review a trial court's decision to quash a subpoena for abuse of discretion. See Grunauer v. Difilippo , No. 07-03-0149-CV, 2004 WL 111462, at *1 (Tex.App.—Amarillo Jan. 22, 2004, no pet.) (mem. op.). Even if the record shows the trial court erred, we may not reverse a judgment in a civil case unless the error (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. TEX.R.APP.P. 44.1(a).
The County raises several technical problems with the subpoenas. For example, the County claims that at least as to County Respondents Bernal and Esparza, the subpoenas were formally defective for two reasons. First, they were incorrectly styled as "In Re: Matter of Expunction" instead of being styled in L.B.'s name. Second, L.B. did not pay the witness fee. See TEX.CIV.PRAC. & REM.CODE ANN. § 22.001(a) - (b) (a witness is entitled to $10 for each day the witness attends court and fee must be paid by party summoning witness at the time the subpoena is served). Additionally, neither Bernal nor Esparza were apparently served. The County also attacks the substance of the subpoenas, claiming that the testimony of the witnesses was irrelevant, cumulative, and unnecessary.
We find that the trial court did not abuse its discretion by quashing the subpoenas. We agree with the County that the facts of this case are essentially undisputed. The County agreed that L.B. was required to sign a waiver of her right to an expunction as part of a policy implemented by the District Attorney's Office. L.B. argues that notwithstanding the apparently uncontested nature of this case's facts, the testimony of the County Respondents would have established that the requirement of waiving expunction "had nothing to do with the purposes of pre-trial diversion" and that the Pre-Trial Diversion Office was only enforcing the waiver expunction requirement as a "favor or accommodation" to the District Attorney's Office. But the question of whether expunction waivers are reasonable under Section 76.011(b) is a question of law for the courts, and it is unclear how the lay testimony or opinion testimony of the County Respondents or the two probation employees would have made a difference in assessing the legal bounds of reasonableness set by the Legislature in the statute. We do not see how this lay opinion testimony would have been relevant to the purely legal statutory interpretation issue, much less how a county official's lay opinion would trump that of the trial court, which is charged by law to be the interpreter of the statute's reasonableness requirement. Given that it is unclear how such testimony was relevant or would have made a difference to the statutory interpretation analysis, we cannot say the trial court abused its discretion in quashing the subpoenas.
Issue One is overruled.
Recusal
In Issue Three, L.B. argues that Judge Ables erred by failing to grant her motion to recuse Judge Medrano on lack of impartiality and bias/prejudice grounds. We disagree.
In the County's Appellee brief, the County construes a complaint made by L.B.'s counsel in the trial court asking to transfer the case out of the 409th District Court due to judicial bias as a motion to transfer venue and addresses the issue on the merits. Because L.B. did not re-urge this venue challenge in her Appellant's Brief, that error has not been assigned for our review, and as such, we need not consider it. See Ridge Nat. Res., L.L.C. , 564 S.W.3d at 126 (court of appeals in civil case should not resolve a case based on unassigned error); cf. Tex.R.Civ.P. 86 (establishing that venue complaints are waivable if proper procedures are not followed).
We review the regional presiding judge's decision not to recuse the trial judge in this case for abuse of discretion. See Scown v. City of Alpine , 271 S.W.3d 380, 382 (Tex.App.—El Paso 2008, no pet.). As is relevant here, a judge must recuse himself in any proceeding in which:
(1) The judge's impartiality might reasonably be questioned;
(2) The judge has a personal bias or prejudice concerning the subject matter or a party....
"In reviewing the denial of a recusal motion, we apply a reasonable person standard in determining whether the alleged act or acts indicating bias or impartiality emanated from an extrajudicial source." Scown , 271 S.W.3d at 383 (quoting Trahan v. Lone Star Title Co. , 247 S.W.3d 269, 274 (Tex.App.—El Paso 2007, pet. denied) ). A motion to recuse must not be based solely on the judge's rulings in the case. TEX.R.CIV.P. 18a(a)(3). When a motion to recuse has been filed, regardless of whether the motion complies with the requirements of Rule 18a, the respondent judge, within three business days after the motion is filed, must either sign and file an order recusing himself or else sign and file with the clerk an order referring the motion to the regional presiding judge. TEX.R.CIV.P. 18a(f).
In her brief, L.B. points to the following exchanges with the trial court as evidence that the judge was biased against her attorney Michael Gibson:
• The trial judge quashed the subpoenas without lawful cause and misunderstood the nature of her argument.
• After quashing the subpoenas, the trial judge took up L.B.'s motion to discover ‘any kind of agreements’ between the District Attorney's Office. The trial judge asked the assistant county attorney if he was aware of any such agreement, and the assistant county attorney replied that he was not. After L.B.'s counsel objected, the trial court instructed L.B.'s counsel to make a bill of exceptions with respect to what he expected the testimony of the witnesses to be or else obtain an affidavit from a particular witness for appellate purposes. L.B.'s counsel insists that this was the improper procedure and that the proper procedure would have been to let the subpoenas stand so he could obtain the testimony. L.B.'s counsel also complains that the trial court unfairly credited the statement of the assistant county attorney as to the existence of agreements.
• At a later hearing that was set as a final hearing, L.B.'s counsel told the trial judge he was not ready to proceed because the trial court had not yet ruled on counsel's motion asking the trial court to detail exactly why the subpoenas against the County Respondents had been quashed. At that point, according to L.B.'s brief, the trial court ‘attack[ed]’ L.B.'s counsel ‘verbally in open court’ ‘nine times’ for failing to file a motion for a continuance if he was not ready to proceed with the hearing. L.B.'s counsel also asserts that the trial court ‘threaten[ed] him’ for telling L.B. that she did not have to appear at the final hearing. Specifically, the trial judge told L.B.'s counsel: ‘Do that one more time in my court and you do it at your own peril. ... You do not tell people not to comply with a hearing in this court.’ Toward the end of the hearing, L.B.'s counsel announced an intent to file a motion to recuse the judge, at which point the judge, without ruling on the merits
L.B.'s counsel never made a bill or obtained any witness affidavits.
L.B. also attempts to bolster her judicial bias argument by pointing out that even though Judge Medrano chastised Gibson for instructing L.B. not to appear at a hearing, at a later hearing after Judge Ables denied the motion to recuse Judge Medrano, Judge Medrano offered to accommodate Gibson's request to not have L.B., who resided outside of El Paso, appear at the expunction hearings. This subsequent exchange is immaterial to our review of Judge Ables' decision. In reviewing Judge Ables' recusal decision, we consider only that evidence which was before him at the time he rendered his decision.
of the expunction application, adjourned the hearing to allow L.B.'s counsel to ‘file whatever recusal you wish to file.’
L.B.'s complaints largely center around her belief that the trial judge's rulings quashing her subpoenas to county elected officials were improper. Adverse rulings alone are not evidence of judicial bias. See TEX.R.CIV.P. 18a(a)(3) (motion to recuse must not be solely based on the judge's rulings). Additionally, her complaint that the trial court manifested bias against her lawyer by displaying a hostile attitude towards him in open court is insufficient, standing alone, to justify recusal. "Judicial remarks, even those that are critical or disapproving of, or even hostile to, parties or their cases, do not ordinarily support a bias or partiality challenge." Drake v. Walker , 529 S.W.3d 516, 528 (Tex.App.—Dallas 2017, no pet.). Here, Judge Ables could have found that Judge Medrano's comments, to the extent they may have been critical, disapproving, or even hostile, were the result not of bias but of Judge Medrano's stated dissatisfaction with Gibson's announcement of not ready at the final hearing, Gibson's failure to file a motion for a continuance despite not being ready for the hearing, Gibson's instruction to L.B. not to appear at the scheduled final hearing without first informing the court of that arrangement, and Gibson's repeated requests for Judge Medrano to provide justification for the elected official subpoena rulings made at a prior hearing. Based on our review of the record, we conclude that a reasonable person could conclude that Judge Medrano's comments did not emanate from an extrajudicial source or otherwise demonstrate bias.
We discern no abuse of discretion on this point. Issue Two is overruled.
CONCLUSION
The judgment of the trial court is affirmed.