Opinion filed April 16, 2015




                                      In The


        Eleventh Court of Appeals
                                   __________

                               No. 11-14-00128-CV
                                   __________

                 EX PARTE BILLY WAYNE WILLIAMS


                      On Appeal from the 32nd District Court
                             Mitchell County, Texas
                          Trial Court Cause No. 15,775


                      MEMORANDUM OPINION
       Billy Wayne Williams, Appellant, appeals the trial court’s dismissal of his
petition for expunction for want of prosecution. Appellant claims in two issues
that he should have been allowed to appear at or participate in the hearing on the
proposed dismissal and that the trial court should have reinstated the case
following dismissal. We reverse and remand.
                                I. Procedural History
       At the outset, we note that the State has conceded error concerning
Appellant’s nonparticipation in the hearing. Nevertheless, that concession is not
conclusive on appeal. Saldano v. State, 70 S.W.3d 873, 884 (Tex. Crim. App.
2002); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008, pet.
ref’d). We must conduct an independent examination of the merits of Appellant’s
claim. Isham, 258 S.W.3d at 248.
      Appellant filed a petition in which he asked the trial court to expunge
records of an arrest for the felony offense of escape, as presented in the indictment
in Cause No. 4197 in the 32nd District Court of Mitchell County, Texas.
Appellant asserted that the indictment had been dismissed and that he was entitled
to an expunction. The trial court set a hearing and notified Appellant of the
hearing date. Appellant, who was incarcerated, moved for a writ of habeas corpus
and a bench warrant so that he could attend the hearing. Alternatively, Appellant
requested that the trial court allow him to appear at the hearing via affidavit,
deposition, telephone, or teleconference. The trial court did not rule on his request
for the writ or bench warrant and did not issue a bench warrant or otherwise permit
Appellant to participate in the hearing. On the day of the hearing, the trial court
called the case for hearing. When no one appeared for the hearing, the trial court
entered an order in which it dismissed the case for want of prosecution.
                                     II. Analysis
      Appellant argues that the trial court erred when it failed to allow him to
appear in person or participate at the hearing and when it dismissed the case for
want of prosecution and refused to reinstate it. The right to expunction is statutory;
courts have no equitable power to expunge records. See TEX. CODE CRIM. PROC.
ANN. art. 55.01 (West Supp. 2014); Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d
803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A statutory expunction
proceeding is civil rather than criminal in nature, and the petitioner must prove that
all statutory requirements have been satisfied. Ex parte Cephus, 410 S.W.3d 416,
418 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We review the ruling of a
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trial court on a petition for expunction under an abuse-of-discretion standard. Ex
parte Reed, 343 S.W.3d 306, 308 (Tex. App.—Houston [14th Dist.] 2011, no pet.);
Rodriguez v. State, 224 S.W.3d 783, 784 (Tex. App.—Eastland 2007, no pet.);
Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002,
pet. denied).
      The Texas Code of Criminal Procedure provides that the trial court shall set
a hearing on an expunction petition and give reasonable notice of the hearing to
each official or agency or other governmental entity named in the petition. See
CRIM. PROC. art. 55.02, § 2(c). A trial court may rule on an expunction petition
without conducting a formal hearing and without the consideration of live
testimony if the court has at its disposal all the information it needs to resolve the
issues raised by the petition. Ex parte Wilson, 224 S.W.3d 860, 863 (Tex. App.—
Texarkana 2007, no pet.). A prisoner does not lose his access to the courts as a
result of his incarcerated status, but he does not have an absolute right to
personally appear.    Hudson v. Palmer, 468 U.S. 517, 523 (1984); Ex parte
Guajardo, 70 S.W.3d 202, 205 (Tex. App.—San Antonio 2001, no pet.). The trial
court must balance the government’s interest in protecting the integrity of the
correctional system against the prisoner’s right of access to the courts. Guajardo,
70 S.W.3d at 206. A key factor is whether the prisoner is represented by counsel.
Heine, 92 S.W.3d at 649–50 (citing Jones v. Jones, 64 S.W.3d 206, 210 (Tex.
App.—El Paso 2001, no pet.), and Dodd v. Dodd, 17 S.W.3d 714, 717 (Tex.
App.—Houston [1st Dist.] 2000, no pet.)). As we do in our consideration of a trial
court’s ruling on the actual petition, we review for an abuse of discretion the trial
court’s decision on Appellant’s request for a bench warrant and his request to
participate in the hearing by other means. Heine, 92 S.W.3d at 650; Guajardo, 70
S.W.3d at 206–07.


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      After our independent review, we agree with Appellant and the State that the
trial court thereby abused its discretion.     We sustain Appellant’s first issue.
Guajardo, 70 S.W.3d at 206–07. In light of our decision on Appellant’s first issue,
we need not address his remaining issue.
                              III. This Court’s Ruling
      We reverse the order of the trial court, and we remand the cause to the trial
court for further proceedings consistent with this opinion.




                                                    MIKE WILLSON
                                                    JUSTICE


April 16, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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