Timothy Dewayne Randle v. Galveston County District Clerk and Galveston County Sheriff's Office

Opinion issued December 9, 2010

In

The

Court of

Appeals

For

The

First District

of Texas

———————————

NO. 01-09-00748-CV

———————————

Timothy

Dewayne Randle , Appellant

V.

Galveston County DISTRICT

Clerk and Galveston County Sheriff’s Office ,

Appellees

On Appeal from the 405th

District Court

Galveston County, Texas

Trial Court Case No. 09-CV-0101

MEMORANDUM

OPINION

Appellant

Timothy Dewayne Randle appeals the trial court’s order dismissing his suit

seeking expunction of his criminal records pursuant to article 55.01(b) of the

Code of Criminal Procedure. On the

motion of appellee, the Galveston County District Clerk, the trial court

dismissed Randle’s suit pursuant to Chapter 14 of the Texas Civil Practice and Remedies

Code, concerning inmate litigation. See Tex. Civ. Prac. & Rem. Code Ann. §§ 14.001–.014 (Vernon

2002). On appeal, Randle contends that the trial court erred by failing to

require the District Clerk and the Galveston County Sheriff’s Office to ensure

that the Texas Department of Criminal Justice deleted an affirmative deadly

weapon finding from his criminal records and by not holding a hearing before

dismissing his suit. We conclude the

trial court properly dismissed Randle’s suit because he is not entitled to expunction

pursuant to article 55.01(b).

Background

Randle

was convicted of attempting to take a weapon from a police officer and

sentenced to life in prison. Randle v. State , No. 01-91-00793-CR,

1994 WL 168267 , at *1 (Tex. App.—Houston [1st Dist.] May 5, 1994, pet.

ref’d). The trial court made an

affirmative deadly weapon finding. Id.

Randle appealed, and this Court reformed

the trial court’s judgment to delete the deadly weapon finding and affirmed the

judgment as reformed. Id. at *9 .

Randle filed a petition for expunction under article 55.01(b) of the Code

of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.01(b)

(Vernon Supp. 2010). Randle alleged that the Texas Department of Criminal Justice is

calculating his eligibility for parole based upon an affirmative deadly weapon

finding. He sought an order from the

trial court requiring the Texas Department of Criminal Justice “and all of the

law enforcement agencies and other officials that have records” of his

conviction to delete the affirmative finding of a deadly weapon. The Galveston County District Clerk answered

and, asserting that Randle’s suit had no basis in law because he did not meet

the requirements of the expunction statute, moved to dismiss his suit as

frivolous under Chapter 14 of the Texas Civil Practice and Remedies Code. See

Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2) (Vernon

2002). The trial court granted the motion to

dismiss.

Analysis

In his first and second issues, Randle

contends that the trial court erred by failing to grant his petition for

expunction and by failing to require the Galveston Sheriff’s Office or

Galveston District Clerk to ensure that the Texas

Department of Criminal Justice removed the deadly weapon finding from Randle’s record.

Chapter 14 of the Texas Civil Practice

and Remedies Code, entitled “Inmate Litigation,” applies to a lawsuit brought

by an inmate who files an affidavit or unsworn declaration of inability to pay

in order to avoid costs. Tex. Civ. Prac. & Rem. Code Ann. §

14.002 (Vernon 2002). Under Chapter 14,

a trial court may dismiss such an inmate’s lawsuit that is malicious or

frivolous. Tex. Civ. Prac. & Rem. Code Ann. § 14.003(a)(2).

To determine whether a lawsuit is malicious or frivolous,

a court may consider whether:

(1) the claim’s

realistic chance of ultimate success is slight;

(2) the claim

has no arguable basis in law or in fact;

(3) it is clear

that the party cannot prove facts in support of the claim; or

(4) the claim is

substantially similar to a previous claim filed by the inmate because the claim arises from the same operative facts.

Id. § 14.003(b) (Vernon 2002). When a lawsuit is dismissed as frivolous for

having no basis in law or in fact, but no fact hearing was held, we focus on

whether the inmate’s lawsuit has an arguable basis in law, which we review de

novo. Scott v. Galagher , 209 S.W.3d 262, 266 (Tex.

App.—Houston 2006, no pet.).

A claim has no arguable basis in law

if it is an “indisputably meritless legal theory.” Minix v. Gonzales , 162 S.W.3d 635, 637

(Tex. App.—Houston [14th Dist.] 2005, no pet.).

“In conducting our de novo review, we take as true the allegations of

the inmate’s petition.” Scott , 209 S.W.3d at 266 (citing Long v.

Tanner , 170 S.W.3d 752, 754 (Tex. App.—Waco 2005, pet. denied)). “In other words, we review the inmate’s

petition to determine whether, as a matter of law, it stated a cause of action

that would authorize relief.” Id. at 266­–67. A court may not dismiss an inmate’s lawsuit

simply because it thinks that the inmate’s allegations are “unlikely.” Id.

at 267 (citing Minix , 162 S.W.3d at 637 ).

Randle sought expunction under article

55.01(b) of the Code of Criminal Procedure.

See Tex. Code Crim. Proc. Ann.

art. 55.01(b). The right to expunction

is a statutory privilege and, as such, all provisions of the statute “are

mandatory and exclusive and a person is entitled to expunction only when all of

the conditions have been met.” In re Expunction of A.R. , 225 S.W.3d

643, 646 (Tex. App.—El Paso 2006, orig. proceeding). Article 55.01(b)(3) provides that a district court may

expunge arrest records if a defendant is “acquitted by the court of criminal

appeals.” Id. Randle was not acquitted

by the Court of Criminal Appeals.

Instead, this Court modified the judgment of conviction to delete the

affirmative finding of a deadly weapon and affirmed the judgment as modified. Randle ,

1994 WL 168267 , at *9. This Court has previously decided that the

plain language of the statute does not apply to an acquittal by this Court but

only to an acquittal by the Court of Criminal Appeals. Harris

County v. E.B.H. , 95 S.W.3d 719 , 721–22 (Tex. App.—Houston [1st Dist.] 2003,

pet. denied) (citing Harris County Dist.

Attorney’s Office v. Jimenez , 886 S.W.2d 521 , 522–23 (Tex. App.—Houston [1st Dist.] 1994,

writ denied)). Because Randle was not

acquitted by the Court of Criminal Appeals, he is not eligible for expunction

and his petition failed to state a cause of action that would authorize

relief. See id. ; see also In re Expunction of A.R. ,

225 S.W.3d at 647 (noting expunction not warranted unless all conditions of

statute are met). We therefore hold that Randle’s

petition for expunction under article 55.01(b) had no arguable basis in law and

the trial court did not err by dismissing the suit.

In his third issue, Randle contends

that the trial court erred by dismissing his lawsuit without holding a

hearing. A trial court has discretion to

decide whether to hold a hearing when considering a motion to dismiss a suit

pursuant to Chapter 14. Williams v.

Brown , 33 S.W.3d 410, 411 (Tex. App.—Houston [1st Dist.] 2000, no pet.); Tex. Civ. Prac. & Rem. Code Ann. §

14.003(c). Randle concedes that live

testimony was not necessary, and we conclude the trial court did not err by

deciding the motion to dismiss without a hearing. See Williams , 33 S.W.3d at 411 .

We overrule Randle’s three issues. Although we overrule his issues on appeal, we

note that the thrust of Randle’s case appears to be that the Texas Department

of Criminal Justice is improperly calculating his sentence. As suggested in the appellees’ brief, a

post-conviction application for a writ of habeas corpus appears to be an

appropriate procedural means for Randle to pursue this claim. See Ex

parte Gabriel , 56 S.W.3d 595 , 595–96 (Tex. Crim. App. 2001) (citing Tex. Code Crim. Proc. art. 11.07).

Conclusion

We affirm the trial court’s order of

dismissal.

Michael

Massengale

Justice

Panel consists of Chief

Justice Radack and Justices Massengale and Nuchia. [*]

[*] The Honorable Sam Nuchia, Senior

Justice, Court of Appeals for the First District of Texas, participating by

assignment.