Reverse and Remand; Opinion Filed June 12, 2013.




                                        S In The
                                    Court of Appeals
                             Fifth District of Texas at Dallas

                                     No. 05-12-00248-CV

                         EX PARTE LUAN LE A/K/A JOHN DOE

                     On Appeal from the 265th Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. X11-1135-R

                             MEMORANDUM OPINION
                           Before Justices Lang, Myers, and Evans
                                  Opinion by Justice Myers
       Luan Le a/k/a John Doe, appeals the denial of his petition for expunction. Appellant

presents two issues on appeal contending (1) the trial court violated appellant’s right to due

process by scheduling the hearing with only twenty-four hours’ notice and then denied appellant

the opportunity to present evidence; and (2) the trial court abused its discretion by denying

appellant’s petition for expunction and by making unsupported factual findings in favor of the

State without permitting appellant the opportunity to present evidence. We reverse the trial

court’s judgment and remand the cause for further proceedings.

                                      BACKGROUND

       Appellant was arrested and indicted in 2010 for two offenses of aggravated sexual assault

of a child. The State later dismissed the indictments. On August 22, 2011, appellant filed a

petition for expunction alleging the indictments had been dismissed because the presentment of

the indictments was made as a result of “mistake, false information, or other similar reason
indicating an absence of probable cause at the time of the dismissal to believe the person

committed the offense or because it was void.” Appellant also stated he had been released and

that the charge had not resulted in a final conviction, was no longer pending, and there was no

court-ordered community supervision. Appellant also alleged he had not been convicted of a

felony in the five years preceding the arrest. The State generally denied appellant’s allegations.

       On January 26, 2012, the State filed a motion for protective order and to quash

appellant’s requested discovery. Attached as evidence to that motion was the State’s motion in

the criminal cases to dismiss the indictments against appellant. The motion to dismiss explained

that the evidence in the State’s possession included six months of video from the school the

complainant attended and where appellant worked, but the district attorney’s office could not

review the evidence because the video recorder had broken and was being returned to the

manufacturer for repair. The State explained that because of the delay caused by the broken

equipment, the district attorney would dismiss the cases until the office completed a thorough

investigation of the evidence. The motion to dismiss also stated that the district attorney’s office

“expressly reserves the right to refile these cases once the investigation is complete.”

       On January 27, 2012, appellant filed a motion for continuance alleging his counsel had

received notice the previous day that the trial court would hold a hearing on January 27 to make

a final ruling on the petition for expunction. Appellant argued that the single-days’ notice

violated the forty-five-days’ notice requirement of Texas Rule of Civil Procedure 245 and left

him unable to subpoena his witnesses or otherwise coordinate their appearance in court.

       At the hearing on January 27, 2012, the trial court summarily denied appellant’s motion

for continuance. The court then stated there would be no evidentiary hearing on the petition for

expunction because the face of appellant’s petition and the State’s response showed appellant did

not meet the statutory requirements for expunction. Appellant objected that the denial of the

                                                –2–
hearing denied him due process.         The State’s attorney then told the court, “The State’s

investigation is still active and ongoing which is the reason why we originally opposed the

expunction.” Appellant stated that if the State put on evidence that the investigation was

ongoing, then he wanted to call a witness on that issue because he did not believe the State’s

investigation was ongoing. The State’s attorney stated she would swear as an officer of the court

that the district attorney’s investigation was active and ongoing. The court asked the State’s

attorney if it was correct that she stated “the other day” in the presence of appellant’s lawyer that

she “had just reinterviewed the witness,” and she stated that was correct. Appellant asked to

cross-examine the State’s attorney “since she interjected herself as a witness,” and the trial court

denied that request. Appellant asked “to make an offer of proof in that regard,” and the court

denied that request.

       That same day, the trial court signed an order denying expunction. In the order, the court

stated that “having heard the argument of counsel” the court was “of the opinion that Petitioner is

not entitled to an expunction of his arrest records.” The court also stated in the order that it

found: (a) the limitations period for the offenses had not expired; (b) at the time of the dismissal,

there was probable cause to believe appellant committed the alleged offenses; (c) the indictments

were dismissed because the State was not ready for trial and not because the indictments were

presented due to mistake, false information, or other similar reason indicating a lack of probable

cause; and (d) the investigation of the offenses was still an active investigation.

                                 EXPUNCTION OF RECORDS

       In his second issue, appellant contends the trial court abused its discretion by denying his

petition for expunction on the basis of unsupported fact findings without affording appellant an

opportunity to present evidence. An expunction proceeding is civil in nature, and the petitioner

has the burden of proving compliance with the statutory requirements. Collin Cnty. Criminal


                                                 –3–
Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.—Dallas 2005, no pet.); Ex

parte Jackson, 132 S.W.3d 713, 715 (Tex. App.—Dallas 2004, no pet.). We review a trial

court’s ruling on a petition for expunction under an abuse of discretion standard. Ex parte

Wilson, 224 S.W.3d 860, 863 (Tex. App.—Texarkana 2007, no pet.); Ex parte Jackson, 132

S.W.3d at 715. A trial court abuses its discretion if it acts without reference to guiding rules and

principles or if its actions are arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241–42 (Tex. 1985). The trial court errs if it rules on a petition for expunction

without a hearing where one is required. Ex parte Wilson, 224 S.W.3d at 863.

           Section 55.01 of the Code of Criminal Procedure provides that a person arrested for

commission of a felony is entitled to have the records and files of the arrest expunged if the

following conditions exist:

           (A) . . . 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 . . . ; or

                      (ii) the court finds that the indictment was dismissed or quashed . . .
                      because the presentment had 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 . . . ; 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) (amended 2011). 1


     1
        Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3010, 3019–20, amended by Act of May 27, 2011, 82d
Leg., R.S., ch. 690, § 1, 2011 Tex. Gen. Laws 1651, 1651–53, and Act of May 27, 2011, 82d Leg., R.S., ch. 894, § 3, 2011 Tex. Gen. Laws 2274,
2274–75 (current version codified at TEX. CODE CRIM. PROC. ANN. art 55.01(a)(2) (West Supp. 2012)). The 2011 amendments changed some of
the elements for expunction (e.g., the requirement that the petitioner not have been convicted in the previous five years was deleted). However,
none of those changes affects the outcome of this case. The amendments apply “to an expunction of arrest records and files for any criminal
offense that occurred before, on, or after the effective date of this Act.” 82d Leg., R.S., ch. 690, § 7, 2011 Tex. Gen. Laws 1651, 1655; 82d Leg.,
R.S., ch. 894, § 3, 2011 Tex. Gen. Laws 2274, 2276. We read this language to mean that the amendments apply only to petitions for expunction


                                                                      –4–
          Article 55.02, section 2(c) requires the trial court to set the matter for a hearing no sooner

than thirty days after the filing of the petition. Id. art. 55.02, § 2(c) (West. Supp. 2012).

However, an expunction proceeding does not necessarily require a formal hearing. A trial court

may rule on an expunction petition without permitting live testimony if the court has all the

information necessary to resolve the issues raised by the petition. Ex parte Wilson, 224 S.W.3d

at 863. That available information would include the pleadings, summary judgment proof, and

judicial notice of facts. Id.

          In this case, the trial court did not permit the parties to present evidence at the hearing,

and there was no summary judgment proof. The trial court stated at the hearing that the denial of

the petition for expunction was based “on the face of the petition and the State’s reply.” The

written order denying the petition states the court “heard the argument of counsel,” but the order

does not mention the court heard or considered any evidence. Therefore, any evidence on which

the trial court based its ruling had to come from the pleadings and judicial notice. Before courts

can take judicial notice of facts, those facts cannot be seriously subject to debate and must be

easily ascertainable. Id.; see TEX. R. EVID. 201(b).

          At the hearing, the trial court stated it denied expunction because “on the face of your

petition and the State’s reply, you do not . . . meet the statutory requirements for an expunction.”

Appellant pleaded the statutory requirements, and the State’s reply consisted of only a general

denial.      If appellant had proved the elements he pleaded, he would have been entitled to

expunction, so the trial court’s stated reason at the hearing does not support the denial of

expunction without permitting appellant the opportunity to present evidence.




filed on or after the effective date regardless of when the criminal offense occurred. Ex parte Mason, No. 05-11-00046-CV, 2013 WL 1456632,
at *1 n.1 (Tex. App.—Dallas Apr. 9, 2013, no pet. h.) (mem. op.). Appellant filed his petition for expunction before the amendments’ effective
date. Accordingly, we do not apply the 2011 amendments.



                                                                    –5–
         In the order denying expunction, the trial court found “the limitations period for the

offenses involved in this expunction proceeding ha[d] not expired.” Aggravated sexual assault

of a child does not have a limitations period. See CRIM. PROC. art. 12.01, § 1(B) (West Supp.

2012).    However, the lack of expiration of limitations does not affect appellant’s right to

expunction if he can prove the dismissal of the indictments was due to lack of probable cause to

believe he committed the offenses. See id. art. 55.01(a)(2)(A)(i), (ii) (elements of expiration of

limitations and lack of probable cause separated by “or”).

         The trial court also found that at the time of the dismissal of the indictments, there was

probable cause to believe appellant committed the alleged offenses. On appeal, the State asserts

that this finding was supported by the State’s telling the court and appellant’s counsel during an

informal discovery conference “that the State’s criminal investigation was ongoing, that the child

victim had been re-interviewed, and that the victim re-identified appellant as his abuser.” There

is no record of the statements at the discovery conference. These statements were not easily

ascertainable, and they appeared to be seriously subject to debate. Thus, they were not facts of

which the trial court could take judicial notice. Moreover, the only support for these statements

in the record is the State’s attorney’s statements at the non-evidentiary hearing that the State’s

investigation was ongoing and the State had re-interviewed the complaining witness. The record

contains no support for the statement in the State’s brief, “the victim re-identified appellant as his

abuser.” Without support in the record for that statement, the record does not support the trial

court’s finding there was probable cause at the time of the dismissals to believe appellant

committed the alleged offenses. The State’s attorney’s statement that the complainant had been

re-interviewed, standing alone, does not support the trial court’s finding that there was probable

cause to believe when the indictments were dismissed that appellant committed the offenses.




                                                 –6–
          The trial court also found “the indictments were dismissed because the State was not

ready for trial and not because the indictments were presented due [to] mistake, false

information, or other similar reason indicating a lack of probable cause.” The State’s motion to

dismiss the indictments may tend to show the dismissals were not “because of mistake, false

information, or other similar reason indicating absence of probable cause,” but the motion to

dismiss was not in evidence before the court. No evidence was admitted at the hearing, and the

only copy of the motion to dismiss in the record was an unsworn and uncertified copy attached to

the State’s motion to quash discovery. No one requested the trial court to take judicial notice of

the motion to dismiss, and nothing in the record indicates the trial court took judicial notice.

Moreover, the contents of an unauthenticated or uncertified record from another court is not the

type of evidence of which the court can take judicial notice. 2 See Ex parte Wilson, 224 S.W.3d

at 863 (“Judicial records . . . from a domestic court other than the court being asked to take

judicial notice, have not been deemed so easily ascertainable that no proof is required; they are to

be established by introducing into evidence authenticated or certified copies, respectively, of

those records.”).

          The State argues on appeal that the trial court’s finding that probable cause existed when

the indictments were dismissed was supported by affidavits attached to appellant’s motion for

continuance. In these affidavits, witnesses describe evidence on which the State’s case was

based. However, these affidavits were not offered into evidence on the petition for expunction,

they were not mentioned at the hearing, and nothing in the record shows the trial court

considered them in denying the petition for expunction. Nothing in the record shows the trial




     2
      The petition for expunction was filed in the 265th District Court, and the motion to dismiss the indictments was filed in Dallas County
Criminal District Court No. 3.



                                                                   –7–
court considered any evidence that would support finding “there was probable cause to believe

the petitioner committed the offenses alleged.”

        The trial court also found that denial of the petition for expunction was appropriate

because the State dismissed the indictments for the reasons that the State was not ready for trial

and the investigation was still ongoing. However, these are not appropriate reasons to deny an

expunction when the petitioner has met the requirements for an expunction under article 55.01.

Article 55.02, section 4(a) of the Code of Criminal Procedure provides for a partial expunction in

this situation:

        If the state establishes that the person who is the subject of an expunction order is
        still subject to conviction for an offense arising out of the transaction for which
        the person was arrested because the statute of limitations has not run and there is
        reasonable cause to believe that the state may proceed against the person for the
        offense, the court may provide in its expunction order that the law enforcement
        agency and the prosecuting attorney responsible for investigating the offense may
        retain any records and files that are necessary to the investigation.

CRIM. PROC. art. 55.02, § 4(a). If appellant had proved his entitlement to expunction under

article 55.01, the fact that the State still intended to re-indict and prosecute him would not permit

the trial court to deny appellant at least a partial expunction.

        Based on the record before us, the trial court did not have all the information before it

necessary to rule on appellant’s petition for expunction. Accordingly, the court erred by denying

the petition for expunction without an evidentiary hearing and without permitting appellant an

opportunity to prove his entitlement to expunction. See Ex parte Wilson, 224 S.W.3d at 863–64

(“[N]o evidentiary hearing was held. Because the trial court’s ruling rested necessarily on its

taking judicial notice of unspecified court records from another court, dispensing with an

evidentiary hearing on Wilson’s petition was error.”               (Footnote omitted.)).   We sustain

appellant’s second issue.




                                                  –8–
      We reverse the trial court’s judgment and remand the cause for further proceedings.




                                                   /Lana Myers/
                                                   LANA MYERS
120248F.P05                                        JUSTICE




                                             –9–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

EX PARTE LUAN LE A/K/A JOHN DOE                        On Appeal from the 265th Judicial District
                                                       Court, Dallas County, Texas
                                                       Trial Court Cause No. X11-1135-R.
No. 05-12-00248-CV         V.                          Opinion delivered by Justice Myers.
                                                       Justices Lang and Evans participating.


       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings
.
       It is ORDERED that appellant LUAN LE A/K/A JOHN DOE recover his costs of this
appeal from appellee DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE.
.


Judgment entered this 12th day of June, 2013.




                                                   /Lana Myers/
                                                   LANA MYERS
                                                   JUSTICE




                                                –10–
