IN RE: COREY BURRELL BROWN (2010)

MEMORANDUM OPINION

Opinion by Justice Lang

The Court has before it relator's petition for writ of mandamus, which was filed on August 2, 2010.   Relator contends the trial judge violated a ministerial duty by not holding a hearing on his petition for expunction of records pursuant to Tex.Code Crim. Proc. Ann. art. 55.02 § (2) (Vernon Supp.2009).   This Court requested a response, which was provided by respondent the Honorable Rayburn M. Nall, Jr., on August 24, 2010.   Respondent stated that there was no opposition to proceeding with relator's petition for expunction, but the matter had not yet been set for hearing.   According to the Code of Criminal Procedure, when a petition for expunction is filed, the court “shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing․”  Tex.Code Crim. Proc. Ann. art. 55.02 § (2)(c) (Vernon Supp.2009).   Based on the record before us, we agree that relator has no other adequate legal remedy and the act sought to be compelled is purely ministerial.  State of Texas ex rel. Hill v. Court of Appeals for the Fifth Dist., 67 S.W.3d 177, 180-81 (Tex.Crim.App.2001);  State of Texas ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex.Crim.App.2001).

Accordingly, we conditionally grant relator's petition for writ of mandamus.   A writ will issue only in the event the trial court fails to set a hearing on relator's petition for expunction of records, to give reasonable notice of that hearing to each official, agency, and other governmental entity named in the petition, and to allow relator to meaningfully participate in that hearing.

100937F.P05

DOUGLAS S. LANG JUSTICE