Petition for Writ of Mandamus Denied and Memorandum Opinion filed
November 7, 2013.




                                        In The

                     Fourteenth Court of Appeals

                                 NO. 14-13-00925-CV
                                 NO. 14-13-00926-CV



              IN RE RONALD DARNELL CEPHUS, JR., Relator


                           ORIGINAL PROCEEDING
                            WRIT OF MANDAMUS
                              232nd District Court
                             Harris County, Texas
                    Trial Court Cause Nos. 998670 & 1009435

                          MEMORANDUM OPINION

      On October 18, 2013, relator Ronald Darnell Cephus, Jr. filed a petition for
writ of mandamus in this Court. See Tex. Gov’t Code Ann. §22.221; see also Tex.
R. App. P. 52. In the petition, relator asks this Court to compel the Honorable
Mary Lou Keel, presiding judge of the 232nd District Court of Harris County, to
set his petition for expunction for a hearing.
      Relator filed his motion for a bench warrant, motion for leave to file a
petition for writ of mandamus, and petition for expunction on October 1, 2013.
Subsequently, the trial court denied relator’s motions and petition without holding
a hearing or stating the reasons for the denial. Relator complains the trial court did
not comply with the expunction procedures outlined in Chapter 55 of the Texas
Code of Criminal Procedure because it did not set a hearing on his petition for
expunction.

      Article 55.01 provides a right for expunction of criminal records under
certain circumstances. See Tex. Code Crim. Proc. Ann. art. 55.01 (West Supp.
2013). Article 55.02 provides the procedures for expunction. See Tex. Code Crim.
Proc. Ann. art. 55.02 (West Supp. 2013). An expunction proceeding is civil rather
than criminal in nature. In re A.G., 388 S.W.3d 759, 761 (Tex. App.—El Paso
2012, no pet.). Consequently, the burden of proving compliance with the statute is
on the petitioner rather than the State. McCarroll v. Tex. Dep’t of Pub. Safety, 86
S.W.2d 376, 378 (Tex. App.—Fort Worth 2002, no pet.).               If the petitioner
demonstrates that he has satisfied each of the requirements under the statute, the
trial court must grant the expunction petition. T.C.R. v. Bell Cnty. Dist Attorney’s
Office, 305 S.W.3d 661, 664 (Tex. App.—Austin 2009, no pet.).

      Article 55.02, section 2(c) provides, in part, the trial court “shall set a
hearing” on the matter no sooner than thirty days from the filing of the petition.”
Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c). However, article 55.02, section 3(a)
provides that the petitioner “may appeal the court’s decision in the same manner as
in other civil cases.” See id. art. 55.02, § 3(a). Therefore, relator has an adequate
remedy by appeal, and has not shown he is entitled to mandamus relief. See State
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ex rel. Young v Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d
207, 210 (Tex. Crim. App. 2007) (orig. proceeding) (relator must show, in order to
be entitled to mandamus relief, he does not have an adequate remedy by appeal and
what he seeks to compel is a ministerial act).

      Accordingly, we deny relator’s petition for mandamus relief.


                                                 PER CURIAM


Panel Consists of Justices McCally, Busby, and Wise.




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