      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00715-CV



                             The Travis County Attorney, Appellant

                                                  v.

                                           L. C., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
        NO. D-1-EX-13-000266, HONORABLE KAREN SAGE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               The Travis County Attorney (County Attorney) brings this appeal challenging an

order signed by the trial court on October 22, 2013, that granted L.C.’s request in his first amended

petition for expunction of criminal records (the October order). In a separate but related appeal,

cause number 03-13-00702-CV, The Travis County Attorney v. L.C., the County Attorney challenges

an order of expunction in the same case that was signed by the trial court on May 1, 2013 (the May

order). By opinion issued this date, we set aside the May order and remand the case to the trial court.

Based on the factual background and analysis of that opinion and the following additional factual

background and analysis, we vacate the October order.


                                          BACKGROUND

               The trial court’s May order granted L.C.’s request for expunction of records and files

arising from the felony offense of injury to a child and the misdemeanor offense of interference with
an emergency call. See Tex. Code Crim. Proc. art. 55.02 (setting forth procedures to be followed

in expunction proceeding). Although the County Attorney was not listed in the petition or given

notice of a hearing on L.C.’s petition, the County Attorney was included among the named entities,

agencies, and officials subject to the May order.

                 On August 15, 2013, L.C. filed a first amended petition for expunction naming the

County Attorney. In the amended petition, L.C. listed the entities, agencies, and officials who were

named in the original petition, and then separately listed other entities, agencies, and officials to be

served with notice of the amended petition. The County Attorney was on the latter list. In response,

the County Attorney filed an answer on September 11, 2013, protesting expunction. The October

order, however, does not include the County Attorney as one of the named officials subject to the

order, and there is no transcript of a hearing on the amended petition.1

                 Upon learning of the October order, the County Attorney filed an expedited motion

to vacate the order and an affidavit of an Assistant Travis County Attorney. She averred:


        On October 23, 2013, I became aware that the trial court had signed an order the
        previous day on the “first amended petition” in this expunction case. The County
        Attorney’s office had no notice or knowledge that a hearing was to take place on
        October 22nd. If I had known of the hearing, I would have appeared in court to
        contest the granting of expunction as to any entity.


No hearing was held on the County Attorney’s expedited motion to vacate and, a few days after

filing the motion, the County Attorney filed notice of this appeal.




       1
           The court reporter advised this Court that she does not have “any notes related to this case.”

                                                    2
                                           ANALYSIS

               Because it is dispositive, we limit our review to part of the County Attorney’s first

point of error.2 See Tex. R. App. P. 47.1. As part of his first point of error, the County Attorney

urges that the October order is void because the trial court’s plenary power over the case expired

before the trial court signed the October order. L.C. has not filed a responsive brief.

               Although the law that governs expunction is part of the Code of Criminal Procedure,

an expunction proceeding is a civil proceeding governed by the Rules of Civil Procedure. In re J.S.,

392 S.W.3d 334, 337 (Tex. App.—El Paso 2013, no pet.) (citing Carson v. State, 65 S.W.3d 774,

784 (Tex. App.—Fort Worth 2001, no pet.)). Generally, under the Rules of Civil Procedure, a trial

court’s plenary power expires 30 days after a judgment or appealable order is signed unless it is

extended, such as by a timely filed motion for new trial. See Tex. R. Civ. P. 306a(1) (setting date

judgment or appealable order signed as beginning of periods for court’s plenary power to grant

motions for new trial or to vacate, modify, correct, or reform judgment or order), 329b(d) (stating

that trial court “has plenary power to grant a new trial or to vacate, modify, correct or reform the


       2
           As a threshold manner, the County Attorney addresses his standing to challenge the
October order even though he is not included among the named agencies, entities, and officials
subject to the order. We agree with the County Attorney that he has standing to bring this appeal
because he was among the agencies, entities, and officials subject to the May order, he was named
in the amended petition, and he filed an answer opposing the amended petition. See Tex. Code
Crim. Proc. arts. 55.02, § 3(a) (allowing “agency protesting the expunction” to appeal court’s
decision “in the same manner as in other civil cases”), 55.04, § 1 (making violation of expunction
order criminal offense); see also Ex parte Elliot, 815 S.W.2d 251, 251–52 (Tex. 1991) (reversal of
expunction order encompasses all persons and agencies in possession of relevant criminal records);
In re R.A., 417 S.W.3d 569, 580 (Tex. App.—El Paso 2013, no pet.) (concluding that district
attorney and county attorney had standing to participate in expunction proceeding and appeal); City
of Fort Worth v. D.T., 165 S.W.3d 425, 427–28 (Tex. App.—Fort Worth 2005, no pet.) (discussing
standing in context of appeal from denial of motion to set aside expunction order).

                                                 3
judgment within 30 days after the judgment is signed”). Here, the trial court signed the May order

on May 1, 2013, and no timely post-judgment motions were filed, so the trial court’s plenary power

expired 30 days later, months before the trial court signed the October order granting the relief

requested in the amended petition for expunction.3 Thus, we conclude that the October order is void.

See In re J.S., 392 S.W.3d at 338 (concluding that order that modified expunction order was void

because trial court’s plenary power had expired). On this basis, we sustain part of the County

Attorney’s first point of error and do not reach his additional arguments and points of error.4




       3
           We further conclude that an extension of the trial court’s plenary power based on the
County Attorney’s actual notice or knowledge of the May order is not available. See Tex. R. Civ.
P. 306a. Rule 306a of the Rules of Civil Procedure allows post-judgment timetables to be extended
from the date a judgment is signed to the date a party receives actual notice or knowledge of a
judgment or appealable order, but the party must prove on sworn motion the date that the party
received notice or actual knowledge and that date must be more than twenty but less than ninety-one
days after the judgment was signed. See id. R. 306a(4) (allowing periods of plenary power to run
from date of actual notice of judgment but “in no event shall such periods begin more than ninety
days after the original judgment or other appealable order was signed”), (5) (requiring sworn motion
and notice); see also Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994) (orig.
proceeding) (citing Rule 306a(4) and noting that party who does not have actual knowledge of order
of dismissal within 90 days of date signed cannot move for reinstatement); In re General Motors
Corp., 296 S.W.3d 813, 820–21 (Tex. App.—Austin 2009, orig. proceeding) (addressing trial court’s
plenary power in context of rule 306a); In re J.S., 392 S.W.3d 334, 337 (Tex. App.—El Paso 2013,
no pet.) (same). According to affidavits in the record and the County Attorney’s assertions in his
motion to set aside and for new trial that he filed with the trial court in October 2013, the County
Attorney became aware of the May order at some point in September 2013, which was more than
ninety-one days after the May order was signed.
       4
          The County Attorney also urges in his first point of error that the amended petition was not
properly before the trial court. In his two other points of error, the County Attorney urges that the
evidence is legally insufficient to sustain the judgment of expunction and that the trial court abused
its discretion by ordering expunction when the statutory requirement of notice as to the hearing on
the amended petition was not satisfied.

                                                  4
                                         CONCLUSION

                 For these reasons and the reasons stated in our opinion issued this same day in

cause number 03-13-00702-CV, The Travis County Attorney v. L.C., we vacate the trial court’s

October order.



                                              __________________________________________

                                              Melissa Goodwin, Justice

Before Justices Puryear, Goodwin, and Field

Reversed and Vacated

Filed: May 12, 2015




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