                                  NO. 07-08-0222-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 NOVEMBER 21, 2008

                         ______________________________


                     EX PARTE KATHARINE ELISABETH CASE

                       _________________________________

              FROM THE 100TH DISTRICT COURT OF HALL COUNTY;

                 NO. 7274; HON. STUART M. MESSER, PRESIDING

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.



                              MEMORANDUM OPINION



      Appellant, Texas Department of Public Safety (Department), appeals an order of

expunction entered by the 100th District Court of Hall County, Texas, expunging an arrest

record of Katharine Elisabeth Case for the offense of possession of marijuana. Agreeing

with the Department, we reverse and remand the matter to the trial court.
                                    Factual Background


       Case filed a petition for expunction requesting that the court enter an order

expunging an arrest for possession of marijuana from her criminal record. Within 30 days

of the filing of the petition, Case presented the County Court of Hall County with an order

of expunction. Realizing that the County Court of Hall County did not have jurisdiction over

an expunction matter, Case presented a second order of expunction entered by the

presiding judge of the 100th District Court of Hall County. One of the parties cited in the

petition as a law enforcement agency having criminal records pertaining to Case was the

Department. The Department did not receive notice of the filing of the petition for

expunction or of the hearing on the request for expunction. After the expunction order was

entered, the Department gave notice of appeal. By one issue, the Department contends

that the trial court abused its discretion by setting a hearing on the petition for expunction

without notice to all respondents named in the petition.


                              Hearing Petition Without Notice


       The standard of review for the granting of a petition of expunction under the present

fact pattern is abuse of discretion. An abuse of discretion is shown when the trial court

acts in an arbitrary, unreasonable manner and without reference to any guiding rules and

principles. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Guidance for the

trial court in the matter of an expunction is found in Chapter 55 of the Texas Code of

Criminal Procedure, specifically article 55.02. See TEX . CODE CRIM . PROC . ANN . art. 55.02



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(Vernon 2008).1 Article 55.02 sets forth the requirement that the trial court set a hearing

on the matter of the expunction no sooner than 30 days from its filing and give notice to all

respondents named in the petition by certified mail, return receipt requested, or secure

electronic mail, electronic transmission, or facsimile transmission. Art. 55.02, § 2(c)(1), (2).

That these procedures were not complied with has been confessed by Case and, further,

is so reflected in the record.      Failure to abide by the procedures for notice to the

Department is an abuse of discretion. See Landon v. Jean-Paul Budinger, Inc., 724

S.W.2d 931, 939-40 (Tex.App.–Austin 1987, no writ). As a result, the Department is

entitled to have the expunction set aside and the matter remanded to the trial court for

another hearing that comports with the requirements of the statute. See Tex. Dep’t of Pub.

Safety v. Arbelo, 170 S.W.3d 734, 736 (Tex.App.–Amarillo 2005, no pet.).


       Because we find the trial court abused its discretion, we reverse the trial court order

of expunction and remand this matter back to the trial court for further proceedings.




                                     Mackey K. Hancock
                                          Justice




       1
           Further reference to the Texas Code of Criminal Procedure will be by “art. __.”

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