In Re: Luan Le a/k/a John DoeAppeal from 265th Judicial District Court of Dallas County (Memorandum Opinion )

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State: Texas

Court: Texas Northern District Court

Docket No: 05-12-00248-CV

Case Date: 06/12/2013

Preview:Reverse and Remand; Opinion Filed June 12, 2013.

In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00248-CV EX PARTE LUAN LE A/K/A JOHN DOE On Appeal from the 265th Judicial District Court Dallas County, Texas Trial Court Cause No. X11-1135-R MEMORANDUM OPINION Before Justices Lang, Myers, and Evans Opinion by Justice Myers Luan Le a/k/a John Doe, appeals the denial of his petition for expunction. Appellant presents two issues on appeal contending (1) the trial court violated appellant's right to due process by scheduling the hearing with only twenty-four hours' notice and then denied appellant the opportunity to present evidence; and (2) the trial court abused its discretion by denying appellant's petition for expunction and by making unsupported factual findings in favor of the State without permitting appellant the opportunity to present evidence. We reverse the trial court's judgment and remand the cause for further proceedings. BACKGROUND Appellant was arrested and indicted in 2010 for two offenses of aggravated sexual assault of a child. The State later dismissed the indictments. On August 22, 2011, appellant filed a petition for expunction alleging the indictments had been dismissed because the presentment of the indictments was made as a result of "mistake, false information, or other similar reason

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indicating an absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void." Appellant also stated he had been released and that the charge had not resulted in a final conviction, was no longer pending, and there was no court-ordered community supervision. Appellant also alleged he had not been convicted of a felony in the five years preceding the arrest. The State generally denied appellant's allegations. On January 26, 2012, the State filed a motion for protective order and to quash appellant's requested discovery. Attached as evidence to that motion was the State's motion in the criminal cases to dismiss the indictments against appellant. The motion to dismiss explained that the evidence in the State's possession included six months of video from the school the complainant attended and where appellant worked, but the district attorney's office could not review the evidence because the video recorder had broken and was being returned to the manufacturer for repair. The State explained that because of the delay caused by the broken equipment, the district attorney would dismiss the cases until the office completed a thorough investigation of the evidence. The motion to dismiss also stated that the district attorney's office "expressly reserves the right to refile these cases once the investigation is complete." On January 27, 2012, appellant filed a motion for continuance alleging his counsel had received notice the previous day that the trial court would hold a hearing on January 27 to make a final ruling on the petition for expunction. Appellant argued that the single-days' notice violated the forty-five-days' notice requirement of Texas Rule of Civil Procedure 245 and left him unable to subpoena his witnesses or otherwise coordinate their appearance in court. At the hearing on January 27, 2012, the trial court summarily denied appellant's motion for continuance. The court then stated there would be no evidentiary hearing on the petition for expunction because the face of appellant's petition and the State's response showed appellant did not meet the statutory requirements for expunction. Appellant objected that the denial of the

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