                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-04-098-CV


CITY OF FORT WORTH                                                  APPELLANT

                                        V.

D.T.                                                                  APPELLEE

                                    ------------

          FROM THE 43RD DISTRICT COURT OF PARKER COUNTY

                                    ------------

                                   OPINION

                                    ------------

                                I. INTRODUCTION

       The only issue we address in this appeal is whether Appellant City of Fort

Worth possessed standing to bring a motion to set aside the trial court’s order

of expunction entered in favor of Appellee D.T. Fort Worth, D.T.’s employer,

was not listed in D.T.’s expunction petition as a law enforcement entity having

records or files subject to expunction, and accordingly, it received no notice of

the expunction proceedings.      See Tex. Code Crim. Proc. Ann. art. 55.02,
§ 2(b)(8), (c) (Vernon Supp. 2004-05).       After the trial court entered an

expunction order, Fort Worth filed a motion to set it aside, but the trial court

ruled that Fort Worth lacked standing. Because Fort Worth was not a party to

the expunction proceedings, is not bound by the expunction order’s mandate

to destroy records or to return them, and will not suffer, by virtue of the

expunction order, any peculiar injury not suffered by the public generally, we

hold that Fort Worth lacked standing to challenge the order of expunction. We

affirm.

                  II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      D.T. is a corporal in the Fort Worth Police Department. On August 11,

2002, D.T. was arrested in Parker County and charged by information with

misdemeanor assault. The Parker County Attorney subsequently moved to

dismiss the misdemeanor complaint, citing insufficient evidence to proceed with

the trial and the fact that the complaining witness had requested that the cause

be dropped.    D.T. then filed a petition seeking to expunge the dismissed

misdemeanor. D.T.’s petition for expunction listed numerous law enforcement

entities that D.T. had reason to believe possessed records subject to

expunction, but the petition did not list the City of Fort Worth as one of those

entities. The trial court conducted an evidentiary hearing and on January 22,

2004 granted D.T.’s petition for expunction.

                                       2
      In the meantime, as a result of D.T.’s arrest and the alleged offense, Fort

Worth suspended D.T. for 218 days without pay. 1          After the misdemeanor

complaint was dismissed, D.T. requested a hearing before an independent third-

party examiner in order to recover $45,000 in backpay and benefits resulting

from his suspension.2 At the backpay hearing before the examiner on February

3, 2004, D.T. attempted to introduce the expunction order into evidence, but

because Fort Worth claimed that it was previously unaware of the order, the

hearing officer postponed the hearing.3      The hearing officer in this separate

proceeding has not yet made any ruling concerning the admissibility of Fort

Worth’s files and records, specifically a January 14, 2003 letter from the Fort

Worth Chief of Police to the Firefighters’ and Police Officers’ Civil Service

Commission explaining the reasons for D.T.’s suspension.4



      1
          … See Tex. Loc. Gov’t Code Ann. § 143.056(a) (Vernon 1999).
      2
          … See id. § 143.056(e).
      3
       … The record before us—involving D.T.’s expunction—obviously contains
no reporter’s record from the February 3, 2004 hearing before the independent
third-party examiner and contains no documents from that hearing except to the
extent that documents were attached to Fort Worth’s motion to set aside
D.T.’s expunction.
      4
       … The crux of Fort Worth’s complaint on appeal concerns this letter.
Fort Worth argues that it needs this letter to justify its actions in D.T.’s backpay
hearing and that D.T. cannot cause this letter to be expunged absent notice to
Fort Worth of the expunction proceedings.

                                         3
         Fort W orth then filed with the trial court that issued D.T.’s expunction

order, in the same cause number, a motion and an amended motion to set aside

the order of expunction. Fort Worth claimed that it “did not receive reasonable

notice [of D.T.’s petition for expunction] prior to the expunction hearing as

required by [article 55.02, § 2(b)(8) of the Texas Code of Criminal Procedure].”

Fort Worth claimed that it was entitled to notice of the expunction hearing so

that it could show that D.T. was not entitled to an expunction of the

documents it possessed as D.T.’s employer.          D.T. countered Fort Worth’s

motion to set aside by filing a plea in abatement averring that Fort Worth lacked

standing to assert the claims raised in its motion to set aside.

         The trial court conducted a hearing on March 3, 2004, and it

subsequently entered a March 9, 2004 order finding that Fort W orth lacked

standing to bring its motion to set aside and dismissing that motion, therefore

granting D.T.’s plea in abatement. Fort Worth appeals the trial court’s order

finding that it lacks standing to bring its motion to set aside the expunction

order.

                                   III. S TANDING

         The issue of standing is a legal question that we review de novo. City of

Arlington v. Scalf, 117 S.W.3d 345, 347 (Tex. App.—Fort Worth 2003, pet.

denied). The test for standing requires that there be a real controversy between

                                         4
the parties that will actually be determined by the judicial declaration sought.

See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 662

(Tex. 1996). To establish standing, one must show a justiciable interest by

alleging actual or imminent threat of injury peculiar to one's circumstances and

not suffered by the public generally. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 443-47 (Tex. 1993).

      Fort Worth claims that it has standing to move to set aside D.T.’s

expunction order because it was entitled to notice of D.T.’s petition for

expunction pursuant to Texas Code of Criminal Procedure article 55.02, section

2(b)(8) and (c). Tex. Code Crim. Proc. Ann. art. 55.02, § 2(b)(8), (c). The

statutory provisions governing expunction procedures require that the petition

for expunction include

      a list of all law enforcement agencies, jails or other detention
      facilities, magistrates, courts, prosecuting attorneys, correctional
      facilities, central state depositories of criminal records, and other
      officials or agencies or other entities of this state or of any political
      subdivision of this state and of all central federal depositories of
      criminal records that the petitioner has reason to believe have
      records or files that are subject to expunction.

Id. § 2(b)(8). Each official, agency, or entity listed in the petition is entitled to

reasonable notice of the expunction hearing by certified mail, return receipt

requested. Id. § 2(c); Tex. Dept. of Pub. Safety v. Deck, 954 S.W.2d 108,

112 (Tex. App.—San Antonio 1997, no pet.) (op. on reh’g) (holding law

                                         5
enforcement agencies listed in the expunction petition entitled to notice of

expunction hearing).

      Once an expunction order is entered, every law enforcement official,

agency, or other entity listed in the expunction order holding records or files

concerning the expunged arrest is served with the expunction order and is

required to return all records and files subject to the expunction order or, if

removal is impracticable, to obliterate all portions of the record or file that

identify the person who is the subject of the order. Tex. Code Crim. Proc. Ann.

art. 55.02, §§ 3(c), 5(a). An entity that is not listed in the expunction petition,

and consequently is not listed in the expunction order, however, is not bound

by a court order to destroy records or to return them. Op. Tex. Att’y Gen. No.

LO-93-88 (1993) (opining that because “expungement order does not name the

Department of Protective and Regulatory Services . . . [it] is therefore not

required to comply with the article 55.02 requirement that officials and

agencies named in the order return records subject to the order to the court or

obliterate identifying information if it is impractical to return them”); see also

43B D IX & D AWSON, T EXAS P RACTICE: Criminal Practice & Procedure § 48.50

(2001) (“Agencies that were not served with notice of the expunction

proceedings are not bound by court order to destroy records.”). Although an

entity not listed in the petition is not required to destroy, return, or obliterate

                                        6
information from expunged records, such an entity is nonetheless prohibited

from releasing, disseminating, or using the expunged records and files for any

purpose. Tex. Code Crim. Proc. Ann. art. 55.03 (Vernon Supp. 2004-05).

      We now turn to the issue of whether Fort Worth, via its motion to set

aside D.T.’s expunction order, established standing. Fort Worth’s motion to set

aside D.T.’s expunction order does not indicate that Fort Worth was a “law

enforcement agency” or purported “entity of this state” holding records subject

to expunction in that capacity. See Tex. Code Crim. Proc. Ann. art. 55.02,

§ 2(b)(8) (listing entities commonly maintaining arrest records). Fort Worth

does not argue that it obtained records or files relating to D.T.’s arrest because

it is a governmental entity. Instead, Fort Worth’s motion to set aside indicated

only that it possessed nonexpungable information concerning D.T.’s arrest in

its capacity as D.T.’s employer.     Specifically, Fort Worth asserts that the

January 14, 2003 letter from the Fort Worth Chief of Police to the Firefighters’

and Police Officers’ Civil Service Commission explaining the reasons for D.T.’s

suspension should not be subject to expunction. As an employer and an entity

not listed in D.T.’s petition for expunction, however, Fort Worth is not required

to destroy or to obliterate any records pursuant to the expunction order. See

Op. Tex. Att’y Gen, No. LO-93-88. Because Fort Worth is not subject to the

expunction order’s provisions concerning destruction or obliteration of records

                                        7
or files regarding D.T.’s expunged arrest, no real controversy exists between

the parties; that is, D.T.’s expunction order does not harm Fort Worth by

requiring destruction or obliteration of any of Fort Worth’s records or files. See

Tex. Ass’n of Bus., 852 S.W.2d at 444 (explaining that allegation of actual or

imminent threat of some injury is required to establish standing).

      We next examine whether the statutory provision that an entity, even one

not listed in the expunction petition or order, is nonetheless prohibited from

releasing, disseminating, or using the expunged records and files for any

purpose gives Fort Worth standing to contest D.T.’s expunction order. See

Tex. Code Crim. Proc. Ann. art. 55.03. Fort Worth claims that it needs the

January 14, 2003 letter from the Fort Worth Chief of Police to the Firefighters’

and Police Officers’ Civil Service Commission explaining the reasons for D.T.’s

suspension to defend against D.T.’s claim for backpay. 5 In a similar situation,

the Dallas Court of Appeals rejected the district attorney’s argument that




      5
        … The expunction statute authorizes expunction of “all records and files
relating to the arrest.” Tex. Code Crim. Proc. Ann. art. 55.01. The records and
files relating to an arrest generally consist of the indictment and the
photographs, fingerprints, and other matters comprising the arrest record and
records concerning the expunction proceeding. Carson v. State, 65 S.W.3d
774, 785 (Tex. App.—Fort Worth 2001, no pet.) (op. on reh’g). Records and
files unrelated to the expunged arrest are not subject to expunction. Tex. Code
Crim. Proc. Ann. art. 55.01. We do not reach the issue of whether the January
14, 2003 letter is a “record or file relating to the arrest.”

                                        8
records and files his office held should not be subject to expunction because

the district attorney’s office might need the records for use in a possible civil

action arising out of the expunged arrest. W.V. v. State, 669 S.W.2d 376,

378 (Tex. App.—Dallas 1984, writ ref’d n.r.e.). The Dallas Court of Appeals

held,

        [R]etention of the expunction files is not necessary to afford the
        district attorney's office the protection from civil actions which it
        seeks. The expunction statutes contemplate that, while the
        indictment and arrest record may be returned to the petitioner, the
        expunction file will be retained by the court subject to inspection
        only by the petitioner. Article 55.02 § 5(c). If the petitioner
        should file a civil action arising out of his arrest, he necessarily by
        his own allegations makes the materials contained in the expunged
        records, as well as the contents of the expunction file, a matter of
        public record subject to discovery proceedings. This question was
        presented to the superior court of New Jersey in Ulinsky v.
        Avignone, 148 N.J.Super. 250, 372 A.2d 620 (1977), under an
        expunction statute which denied access to anyone, including the
        petitioner. The court there stated: "The remedy of expungment
        was never intended as a device by which a plaintiff in a malicious
        prosecution suit could control the availability of evidence relative
        thereto." The court held that a refusal to consent to disclosure of
        the record required dismissal of the civil action. We can perceive
        of no reason under our expunction statutes that a Texas court
        would not grant similar relief.

Id. at 379. Thus, under article 55.03 of the code of criminal procedure, Fort

Worth may release, disseminate, or use any of its records that are not classified

as “expunged records” to the same extent that the general public may release,

disseminate, or use records not classified as expunged records. See Tex. Code


                                          9
Crim. Proc. Ann. art. 55.03.      Under article 55.03 of the code of criminal

procedure Fort Worth may release, disseminate, or use any of its records that

are classified as “expunged records” for the purpose of defending itself in a

proceeding arising out of the arrest to the same extent as any entity or member

of the general public in the same situation. Id.; accord W.V., 669 S.W.2d at

378.    Consequently, Fort Worth has not shown or alleged any actual or

imminent threat of injury not suffered by the public generally. Tex. Ass’n of

Bus., 852 S.W.2d at 443-47. We hold that, here, Fort Worth does not possess

standing to challenge in the trial court the expunction order entered in favor of

D.T. We overrule Fort Worth’s sole issue.

                                IV. C ONCLUSION

       Having overruled Fort Worth’s issue, we affirm the trial court’s judgment.




                                            SUE WALKER
                                            JUSTICE

PANEL A:     CAYCE, C.J.; HOLMAN and WALKER, JJ.

DELIVERED: May 5, 2005




                                       10
