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Ex parte Myers

From the nature of an expunction proceeding, even if it is considered to be an administrative proceeding, it is the type of administrative proceeding in which res judicata would apply to bar relitigation of a subsequent petition.

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OPINION

Melonie Lynn Myers appeals from a district court order denying the expunction of criminal records. Myers sought the expunction of records related to two felony indictments against her that were eventually dismissed by the State. The trial court denied the expunction by its order dated November 28, 2000, based on the Texas Department of Public Safety’s (DPS) affirmative defense of res judicata. Myers now challenges the propriety of applying res judicata to an expunction proceeding.

On December 10, 1997, a Bowie County grand jury returned felony indictments charging Myers with sexual assault and indecency with a child. Both indictments were later dismissed pursuant to motions filed by the State. The stated reason for filing of the motions to dismiss was that the State could not locate any witnesses to testify against Myers. On September 3, 1999, the district court granted Myers’ petition for expunction of the records related to her arrest on these indictments. On the DPS’s appeal of that decision, we reversed and rendered judgment denying expunction because Myers failed to submit proof in the trial court, beyond the sworn pleading, that she had not been convicted of a felony in the five years preceding her arrest. Ex parte Myers, 24 S.W.3d 477, 481 (Tex. App.-Texarkana 2000, no pet.). Myers did not seek a review of our decision through either a motion for rehearing or a petition for review by the Texas Supreme Court.

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