NO. 07-09-0278-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO PANEL C MARCH 22, 2010 ______________________________

EX PARTE JAMES G. MILLER _________________________________ FROM THE 237TH DISTRICT COURT OF LUBBOCK COUNTY; NO. 2009547,036; HONORABLE SAM MEDINA, JUDGE _______________________________ Before QUINN, HANCOCK and PIRTLE, JJ.

DISSENTING OPINION

I join the majority in finding that the trial court had jurisdiction to hear this matter; however, I write separately to dissent from the majority's finding that the trial court did not erroneously dismiss this case. A statutory expunction proceeding is civil rather than criminal in nature. Collin County Criminal District Attorney's Office v. Dobson, 167 S.W.3d 625 (Tex.App.--Dallas 2005, no pet.). On July 15, 2009, the trial court scheduled this matter for a hearing. Twelve days later, on July 27th, 2009, the trial court summarily entered an order of dismissal. A trial court erroneously dismisses a civil proceeding when it dismisses a proceeding without appropriate due process.

Because Appellant was not afforded the opportunity of a hearing or the procedural benefits of a summary judgment proceeding, I would reverse the order of the trial court and remand for further proceedings.

Patrick A. Pirtle Justice