The previous expunction of a Texas man’s records was reversed due to a reporter’s record not being issued.
The Texas Department of Public Safety filed the appeal in the Court of Appeals Ninth District of Texas at Beaumont after the 284th District Court in Montgomery County expunged the criminal records of J.A.G. Jr. concerning a misdemeanor driving while intoxicated charge. In one of its four issues, the DPS argued that “if a hearing was held, no reporter’s record was made of the hearing,” according to the opinion. Considering this, the appeals court reversed the expunction, not ruling on the remaining three issues.
The appeals court judges (Justices Leanne Johnson and Charles Kreger and Chief Justice Steve McKeithen) pointed out that the lower court first signed the expunction order on Sept. 17, 2018, and DPS filed a notice of its appeal on March 15, 2019, which is within the six-month deadline. DPS was entitled to the appeal since it was named in the expunction order as an organization that could have records that needed to be removed.
DPS’s key argument is that the expungement is not valid because there was never a hearing over the matter. Plus, it pointed to its issue that J.A.G. is not entitled to expunction for an offense where he was arrested since he was convicted of a misdemeanor as a result of the arrest.
The judges pointed out that while it’s possible there was a hearing, there is no reporter’s record of the hearing, so it’s not clear what evidence was raised at the potential hearing.
“The lack of a reporter’s record constitutes error on the face of the record, and we therefore reverse and remand for a new hearing,” wrote Justice Johnson.
J.A.G. was taken into custody for the misdemeanor on May 16, 2008. On June 29, 2018, J.A.G. requested the arrest be expunged because the charges were dismissed. He asked that the organizations he believed had the records (i.e. Montgomery County Sheriff’s Department, FBI, and DPS) to be served with the notice of the petition. Based on the clerk’s record, a July 2, 2018 Order Setting Hearing by Submission Petition for Expunction was scheduled for Sept. 7, 2018. The Montgomery County District Clerk also issued a letter to multiple entities that included the petition, the notice of submission, the hearing information and the proposed expunction order on July 17, 2018.
DPS responded on Aug. 28, 2018, and stated that J.A.G. is barred from having the DWI charge removed. It included a copy of the motion to dismiss, stating that J.A.G. as never acquitted or pardoned for an unrelated charge, but instead pleaded guilty to driving with an invalid license, which led to the conviction. DPS wrote, according to the lawsuit, that since J.A.G. was arrested for a misdemeanor charge at the same time of the DWI, he’s not owed expunction for any charges from that arrest.
Still, on Sept. 17, 2018, the trial court signed an order of expunction. DPS filed an appeal on March 15, 2019, stating that there was no hearing on its issue with the expunction.