in Re Antonio Sepeda

Court of Appeals of Texas·Decided August 13, 2015·No. 14-15-00288-CV·Published

Opinion

ACCEPTED 14-15-00288-cv FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 8/13/2015 11:57:06 AM CHRISTOPHER PRINE CLERK

NO. 14-15-00288-CV IN THE COURT OF APPEALS FILED IN 14th COURT OF APPEALS FOR THE HOUSTON, TEXAS FOURTEENTH DISTRICT OF TEXAS 8/13/2015 11:57:06 AM HOUSTON, TEXAS CHRISTOPHER A. PRINE Clerk

IN RE ANTONIO SEPEDA, Relator

Appealed from the 212lh Judicial District Court of Galveston County, Texas Cause No. 14CV0020

THE STATE OF TEXAS' RESPONSE TO RELATOR'S ORIGINAL PROCEEDING OF WRIT OF MANDAMUS

JACK ROADY CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY

ALLISON LINDBLADE ASSISTANT CRIMINAL DISTRICT ATTORNEY GALVESTON COUNTY STATE BAR NO. 24062850 600 59TH STREET, SUITE 1001 GALVESTON, TX 77551 (409) 766-2355, FAX (409) 766-2290 allison.lindblade@co.galveston.tx.us TABLE OF CONTENTS

SECTION PAGE

Identity of Parties and Counsel .......................................................................................... ii

Table of Contents ................................................................................................................... 1\1

Index of Authorities ............................................................................................................... IV

Statement of the Case ............................................................................................................ 1

Summary of the Argument...................................................................................................2

SOLE ISSUE............................................................................................................................ 3

How is Sepeda entitled to mandamus relief when he can now appeal the final order denying his petition for expunction?

Argument and Authorities....................................................................................... 3

Sepeda is not entitled to mandamus relief because he can appeal the trial court's order of denial. ...........................................................................3

Conclusion and Prayer.......................................................................................................... 5

Certificate of Service............................................................................................................. 6

Certificate of Compliance....................................................................................................6

Ii IDENTITY OF PARTIES

Relator Antonio Sepeda

Respondents Hon. Patricia Grady

The State of Texas, Galveston County Criminal District Attorney's Office

jil INDEX OF AUTHORITIES

CASES

Ex parte Sepeda, 14-14-00946-CV, 2015 WL 122744, at *2 (Tex. App.- Houston [14th Dist.] Jan. 8, 2015, no pet.) ......................................................... 1

In re Moody Nat. Kirby Houston S, LLC, 412 S.W.3d 570,571 (Tex. App.- Houston [1st Dist.] 2013, no pet.) ........................................................................ 4

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) ................................ 4

State v. Walker, 679 S.W.2d 484,485 (Tex. 1984) ............................................... 4

Walker v. Packer, 827 S.W.2d 833,839 (Tex. 1992) ........................................ 3, 4

iv TO THE HONORABLE COURT OF APPEALS:

Now comes Jack Roady, Criminal District Attorney for Galveston County,

Texas, and files this response to Relator/Sepeda's petition for writ of mandamus for

the State of Texas.

STATEMENT OF THE CASE

Relator Antonio Sepeda filed Petitioner's Request for Expunction on

January 6, 2014. See Attachment 1. Sepeda's expunction, case number

14CY0020, was set on the trial court's docket for a status conference on April 3,

2014, for a hearing on June 13, 2014, and for a check status on June 16, 2014.

See Attachment 2. Although the trial court took the case under advisement, there

was no ruling. See id.

On November 25, 2014, Sepeda filed Appellant's Restricted Notice of

Appeal, assigned number 14-14-00946-CY. On January 8, 2015, this Court

issued an opinion dismissing appeal number 14-14-00946-CV for want of

jurisdiction without prejudice. See Ex parte Sepeda, 14-14-00946-CV, 2015 WL

122744, at *2 (Tex. App.-Houston [14th Dist.] Jan. 8, 2015, no pet.) (not

designated for publication). On March 20, 2015, an Order on Mandate for appeal

number 14-14-00946-CV was issued.

1 On April 1, 2015, Sepeda filed a petition for writ of mandamus to compel

the trial court to rule on his expunction petition in case number 14CV0020. On

April 23, 2015, this Court sent an Abatement Order to Sepeda and to the trial

court. On July 21, 2015, this Court sent an Order reinstating the mandamus

proceeding. On July 22, 2015, the State filed an Original Answer and General

Denial to Relator/Sepeda's expunction petition in case number 14CV0020. See

Attachment 3. On August 12, 2015, the trial court signed an order denying

Sepeda's petition for expunction. See Attachment 4.

SUMMARY OF THE ARGUMENT

Antonio Sepeda petitioned this Court for a writ of mandamus to compel the

trial court to rule on his expunction petition. Since he filed his writ, the trial

court denied Sepeda's petition for expunction in case 14CVOO20. Because Sepeda

has an alternate remedy at law, his writ of mandamus should be denied.

2 SOLE ISSUE

How is Sepeda entitled to mandamus relief when he can now appeal the final order denying his petition for expunction?

ARGUMENT AND AUTHORITIES

Sepeda petitioned this Court for a writ of mandamus to compel the trial

court to rule on his expunction petition. Since he filed his writ, and at the behest

of this Court, the trial court ruled on the expunction petition. Therefore, Sepeda's

writ of mandamus should be denied.

Sepeda is not entitled to mandamus relief because Ile can appeal tile trial

court's order of denial.

Mandamus relief is available only to correct a clear abuse of discretion

when there is no adequate remedy by appeal. See, e.g., Walker v. Packer, 827

S.W.2d 833,839 (Tex. 1992); see also In re Moody Nat. Kirby Houston S, LLC,

412 S.W.3d 570, 571 (Tex. App.-Houston [1st Dist.] 2013, no pet.).

"Mandamus will not issue where there is 'a clear and adequate remedy at law,

such as a normal appeal.'" Walker, 827 S.W.2d at 840 (quoting State v. Walker,

679 S.W.2d 484,485 (Tex. 1984».

3 In a final order, the trial court denied Sepeda's petition for expunction in

14CVOO20. See Attachment 4. Sepeda may appeal the trial court's denial of his

petition for expunction. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195

(Tex. 2001) (The general rule, with a few mostly statutory exceptions, is that an

appeal may be taken only from a final judgment.). Accordingly, mandamus relief

is not appropriate in this proceeding because Sepeda has an adequate remedy by

appeal.

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