Opinion
No. 14-05-00651-CV
Memorandum Opinion filed January 31, 2006.
On Appeal from the 268th District Court, Fort Bend County, Texas, Trial Court Cause No. 04-Cv-135853.
Affirmed.
Panel consists of Justices FOWLER, EDELMAN, and GUZMAN.
MEMORANDUM OPINION
This appeal is from the denial of appellant's petition for expunction. Appellant raises three issues. We affirm.
In his first issue, appellant claims the trial court abused its discretion and violated appellant's right to due process by not allowing him to participate in the hearing on his petition. The Texas Code of Criminal Procedure requires the trial court to set a hearing on a petition for expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.02 § 2(c) (Vernon Supp. 2005). Nonetheless, a trial court may rule on a petitioner's eligibility for expunction under article 55.01(a) without conducting a hearing when all of the facts necessary to determine the issue are available to the court. See Ex parte Current, 877 S.W.2d 833, 839-40 (Tex.App.-Waco 1994, no writ). In such a case, the trial court's failure to conduct a hearing is harmless. See McCarroll v. Texas Dep't of Public Safety, 86 S.W.3d 376, 378 (Tex.App. Fort Worth 2002, no pet.).
However, when a hearing is conducted, the trial court must strike a fair balance between the government's interest in protecting the integrity of the correction system and the prisoner's right of access to the courts. See Ex parte Guajardo, 70 S.W.3d 202, 206 (Tex.App.-San Antonio 2001, no pet.); see also Heine v. Texas Dep't of Public Safety, 92 S.W.3d 642, 650 (Tex.App.-Austin 2002, pet. denied). Nothing in the record indicates the trial court made such an attempt — the trial court not only denied appellant's motion for a bench warrant, but also denied appellant's motion for hearing by conference call. The trial court abuses its discretion when it fails to make alternative arrangements for a prisoner to proceed by other means, e.g., affidavit, deposition, or telephone. See Guajardo, 70 S.W.3d at 206; Heine, 92 S.W.3d at 649. Therefore, we conclude the trial court abused its discretion by not allowing appellant to participate in the hearing. Issue one is sustained. The error, however, was not harmful because appellant's petition failed to meet one of the conditions for expunction.
In issue two, appellant claims he satisfied all the statutory requirements for expunction. One of the conditions that must exist for the expunction of all records and files relating to an arrest is that "the limitations period expired before the date on which a petition for expunction was filed. . . ." TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A)(I) (Vernon Supp. 2005). The record reflects appellant was arrested for burglary of a building on November 2, 2001. The statute of limitations for that offense is five years. See TEX. CODE CRIM. PROC. ANN. art. 12.01(4)(A) (Vernon Supp. 2005). Appellant filed his petition for expunction on April 19, 2004, before the limitations period expired. Accordingly, we cannot say the trial court abused its discretion in denying appellant's petition. Issue two is overruled.
Appellant's third issue also claims the trial court erred in dismissing his petition. Due to our disposition of issue two, it is unnecessary to address his final point.
For these reasons, the judgment of the trial court is affirmed.