RADOv.STATE

Court of Appeals of Texas, Fifth District, DallasJun 27, 2007
No. 05-06-00200-CV (Tex. App. Jun. 27, 2007)

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No. 05-06-00200-CV

Opinion Filed June 27, 2007.

On Appeal from the County Criminal Court No. 4 Dallas County, Texas Trial Court Cause No. MB 90-39955-E.

Before Justices WRIGHT, RICHTER, and LANG.


MEMORANDUM OPINION


On July 25, 1990, appellant Stephen Andrew Rado pled nolo contendere to committing the offense of driving while intoxicated. The trial court received appellant's plea and adjudged him guilty as charged in the information. The trial court further sentenced him to ninety days' confinement and assessed a $500 fine; however, his sentence was suspended, and he was placed on twenty-four months probation.

In 2005, appellant filed a petition for nondisclosure of criminal history under section 411.081 of the Texas Government Code. After a hearing, the trial court denied his petition. In his sole issue, appellant alleges the trial court erred in denying his petition for nondisclosure because the undisputed testimony establishes nondisclosure is in the best interest of justice. We dismiss the appeal for want of jurisdiction. See Crowder v. State, 05-06-00608-CV (Tex.App.-Dallas June 26, 2007, no pet. h.).

Although neither party briefed the jurisdictional issue, we may not ignore a lack of jurisdiction. See Bison Bldg. Materials, Ltd. v. Aldridge, 2006 WL 2641280, *3 (Tex.App.-Houston [1st Dist. 2006, pet. filed).

Article V, section 6 of the Texas Constitution gives this court jurisdiction over all cases "of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." Tex. Const. art. V, § 6(a). In addition, the Texas Constitution vests courts of appeals with "such other jurisdiction, original and appellate, as may be prescribed by law." Id. Thus, an appellate court's jurisdiction must be based on (1) the general constitutional grant, subject to any regulations or restrictions imposed by the legislature; or (2) a specific statutory grant of jurisdiction. Id.; see also Tune v. Tex. Dep't of Pub. Safety, 23 S.W.3d 358, 361 (Tex. 2000).

We first look to the nondisclosure of criminal history statute itself to see whether it contains a specific grant of jurisdiction to the courts of appeals. See Tex. Gov't Code Ann. § 411.081 (Vernon 2005). Unlike the statutory provisions relating to expunctions, the relevant statute here does not specifically provide this court with jurisdiction. Compare Tex. Gov't Code Ann. § 411.081 with Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) ("The person who is the subject of the expunction order or any agency protesting the expunction may appeal the court's decision in the same manner as in other civil areas."). Therefore, this court's jurisdiction over this appeal, if any, must be based on the general constitutional grant as restricted by the legislature.

General appellate jurisdiction of courts of appeals is limited to cases where the amount in controversy or the judgment rendered exceeds $100, exclusive of interests and costs. Tex. Civ. Prac. Rem. Code § 51.012 (Vernon 1997); Tex. Gov't Code Ann. § 22.220(a) (Vernon 2004). Here, the only "amounts" involved are filing fees, which cannot be used to satisfy the amount in controversy requirement. Tex. Civ. Prac. Rem. Code § 51.012; Tex. Gov't Code Ann. § 22.220(a); Tune, 23 S.W.3d at 361-362 (noting the phrase "amount in controversy" means the sum of money or the value of the thing originally sued for); Bergin v. State, 2006 WL 2456302, *2 (Tex.App.-Texarkana 2006, no pet.) (dismissing appeal from denial of petition for nondisclosure of criminal history for lack of jurisdiction). As such, appellant has failed to meet the requirements to impose jurisdiction on this court. Accordingly, we dismiss the appeal for want of jurisdiction.

Appellant filed a $210 filling fee with the clerk for his petition of nondisclosure of criminal history.