AFFIRM; Opinion Filed April 9, 2013




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-11-00046-CV

                         EX PARTE CHARLES RAY MASON

                         On Appeal from the Criminal District Court
                                   Dallas County, Texas
                             Trial Court Cause No. X06-310-H

                             MEMORANDUM OPINION
                            Before Justices Francis, Lang, and Evans
                                   Opinion by Justice Francis
       Charles Ray Mason appeals the trial court’s order granting the State’s motion for

summary judgment and denying his petition for expunction. In three issues, appellant generally

contends the trial court’s ruling was error. We affirm.

       In March 2006, appellant filed a petition to expunge records related to a 1983 burglary

charged in cause number F83-A0584-LP. Appellant alleged that he was “served with a copy of

his indictment in Cause No. F83-A0584-LP, in lieu of formal arrest” on October 27, 1983. He

further alleged he was reindicted under cause number F83-94214-LP, was convicted by a jury,

and sentenced to life in prison; then, the indictment in F83-A0584-LP was dismissed.

       The Dallas County District Attorney’s Office, on behalf of all law enforcement agencies

of Dallas County, filed a general denial to the petition. In addition, the Texas Department of
Criminal Justice filed an opposition seeking the denial of appellant’s petition. Appellant filed

“objections” to both the TDCJ’s opposition and to the DA’s general denial.

       For reasons not apparent in the record, nothing happened on the case until August 2010

when the State filed its motion for summary judgment. In the motion, the State moved on the

ground that appellant was not entitled to expunction because he had been convicted of a felony in

the five years preceding the date of his arrest for the instant burglary. Attached to the motion

were documents establishing appellant’s December 11, 1978 conviction for felony theft.

Appellant did not respond. On September 17, 2010, the trial granted the motion and denied the

expunction.

       The State was entitled to summary judgment if it established there was no issue of

material fact and appellant was not entitled to expunction as a matter of law. See TEX. R. CIV. P.

166a(c). Expunction proceedings are authorized by Chapter 55 of the Texas Code of Criminal

Procedure and are considered civil causes of action. See McCarroll v. Tex. Dep’t of Pub. Safety,

86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002, no pet.).             A petitioner is entitled to

expunction only on proof satisfying each statutory requirement. See Tex. Dep’t of Pub. Safety v.

J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.)

       This appeal is governed by a former version of article 55.01 of the Texas Code of

Criminal Procedure. Under the version of article 55.01 in effect at the time appellant’s petition

was filed and the court granted summary judgment, a person placed under a custodial or

noncustodial arrest for commission of either a felony or misdemeanor was entitled to have all

records expunged if, among other things, he had not been convicted of a felony in the five years

preceding the date of the arrest. See Act of May 28, 2003, 78th Leg., R.S., ch. 1236, § 1, 2003




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Tex. Gen. Laws 3499, 3499 (former art. 55.01(a)(2)(c)) (amended 2011) (current version at TEX.

CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2012)). 1

           Appellant’s petition asserted he was served with a copy of his indictment in lieu of

formal arrest on October 27, 1983. The State’s evidence conclusively showed that appellant had

previously been convicted on December 11, 1978. Because appellant’s conviction was within

five years preceding the date of the 1983 arrest, he was ineligible as a matter of law to have the

identified records expunged.

           Appellant complains he was not given the opportunity to present evidence that his

indictment was dismissed because of a lack of probable cause or because it was void. See Act of

May 28, 2003, 78th Leg., R.S., ch. 1236, § 1, 2003 Tex. Gen. Laws 3499, 3499 (former art.

55.01(a)(2)(A)(ii)). In his brief, he makes the bare assertion that he did not receive notice of the

summary judgment hearing.

           Rule of civil procedure 166a requires a party to serve notice of a summary judgment

hearing on opposing counsel at least twenty-one days before the hearing date. TEX. R. CIV. P.

166a(c). Under rule 21a, if notice of the hearing is properly addressed and mailed, postage

prepaid, a presumption arises that the notice was properly received by the addressee. Cliff v.

Huggins, 724 S.W.2d 778, 780 (Tex. 1987). This presumption may be rebutted by an offer of

proof of nonreceipt. In the absence of evidence to the contrary, the presumption has the force of

a rule of law. Id.



     1
       The Legislature amended the statute in 2011 to delete this requirement. See TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2012).
The enabling legislation provided for an effective date of September 1, 2011 and further provided that the Act “applies to an expunction of arrest
records and files for any criminal offense that occurred before, on, or after the effective date of this Act.” See Act of May 25, 2011, 82nd Leg.,
R.S., ch. 894, § 3,4, 2011 Tex. Gen. Law 2274, 2276. We do not interpret this language to require retroactive application; rather, we read the
language to apply to expunction petitions filed on or after the effective date regardless of when the criminal offense occurred. See In re M.C.C.,
187 S.W.3d 383, 384 (Tex. 2006) (“A statute is presumed to be prospective in its operation unless expressly made retroactive.”); Merchants Fast
Motor Lines v. Railroad Comm’n of Tex., 573 S.W.2d 502, 504 (Tex. 1978) (“[S]tatutes will not be applied retroactively unless it appears by fair
implication from the language used that it was the intent of the Legislature to make it applicable to both past and future transactions.”).




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       Here, the State’s motion contained a certificate of service stating that a copy of the

motion had been served on appellant by depositing it in the U.S. mail, postage prepaid, on

August 9, 2010. The certificate contained the correct address. Immediately following the

certificate of service was an order setting a hearing date for September 16, 2010. The certificate

gave rise to the presumption of proper notice, and appellant did not rebut the presumption with

any evidence. Moreover, we note that even if appellant could make the evidentiary showing he

complains he was denied making, our result would be no different because appellant still would

have been required to show that he had not been convicted of a felony in the five years preceding

the date of his arrest and the evidence conclusively proved otherwise. See Act of May 28, 2003,

78th Leg., R.S., ch. 1236, § 1, 2003 Tex. Gen. Laws 3499, 3499 (former art. 55.01(a)(2)); see

also J.H.J., 274 S.W.3d at 806-07.

       Finally, to the extent he complains the trial court improperly ruled on his petition without

holding a hearing, we disagree. A trial court may rule on an expunction petition without

conducting a formal hearing and without considering live testimony, if it 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.). As here, that information might be available by

pleadings and summary judgment proof. Id. We resolve all issues against appellant.

       We affirm the trial court’s order granting the summary judgment and denying

expunction.



                                                    /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE

110046F.P05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

EX PARTE CHARLES RAY MASON,                        On Appeal from the Criminal District Court,
Appellant                                          Dallas County, Texas
                                                   Trial Court Cause No. X06-310-H.
No. 05-11-00046-CV                                 Opinion delivered by Justice Francis;
                                                   Justices Lang and Evans participating.


     In accordance with this Court’s opinion of this date, the trial court’s Order Granting
Summary Judgment and Denying Expunction is AFFIRMED.

       It is ORDERED that the DALLAS COUNTY DISTRICT ATTORNEY’S OFFICE
recover its costs of this appeal from appellant CHARLES RAY MASON.


Judgment entered April 9, 2013.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




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