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

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FROM THE 237^TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009547,036; HONORABLE SAM MEDINA, JUDGE

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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