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Texas Department of Public Safety v. Steele

Expunction is a privilege granted by statute, all of the statutory provisions are mandatory and exclusive, and must be complied with in order to sustain the action.

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OPINION

The Texas Department of Public Safety (“DPS”) appeals an order of expunction granted to James Patrick Steele. DPS filed an answer, but failed to appear at the hearing, which was not recorded. No other law enforcement agency answered or appeared. DPS filed a motion for new trial that was overruled by operation of law. DPS timely requested findings of fact and conclusions of law, and duly reminded the trial court, but no findings of fact and conclusions of law were filed. On appeal, the issue presented for review states, “Whether it is an abuse of discretion for a court to grant a petition for expunction when it was apparent from the record that the petitioner made a judicial admission in the petition for expunction that a plea of nolo contendre (sic) to a class B misdemeanor was made by the petitioner on the criminal charge that the petition was seeking to expunge.” The appellee did not file a brief.

An agency’s appeal of an expunction order proceeds in the same manner as in other civil cases. Tex. Crim. Proc. Code Ann. art. 55.02 � 3(a) (Vernon Supp. 2001). Although the motion for new trial identified a meritorious defense to the petition for expunction, DPS did not allege that its failure to file an answer or appear was not intentional or the result of conscious indifference. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (Tex.1939). A post-answer default constitutes neither an abandonment of the defendant’s answer nor an implied confession of the issues placed in controversy by the general denial. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). Judgment cannot be entered on the pleadings, but the plaintiff must produce evidence proving his case. Id.

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