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Ex parte Spencer

Court of Appeals of Texas, Twelfth District, Tyler

March 31, 2017

EX PARTE: TARIK SPENCER

         Appeal from the 241st District Court of Smith County, Texas (Tr.Ct.No. 15-1477-C)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          BRIAN HOYLE JUSTICE.

         The Texas Department of Public Safety appeals the trial court's order granting an expunction of Tarik Spencer's arrest for possession of marijuana. DPS presents two issues on appeal. We reverse and render.

         Background

         Spencer was arrested on March 2, 2012, and subsequently charged with possession of marijuana. Pursuant to a plea bargain agreement, the State dismissed Spencer's marijuana charge and charged him by information with possession of drug paraphernalia, a Class C misdemeanor. Spencer then pleaded guilty to and was convicted of possession of drug paraphernalia. The trial court assessed a $500.00 fine as his punishment.

         In July 2015, Spencer filed a petition to expunge any and all of the records arising from the possession of marijuana charge. He alleged, among other things, that the charge did not result in a final conviction. DPS filed an answer and general denial asserting that Spencer did not qualify for expunction of his records because the marijuana charge resulted in a conviction for possession of drug paraphernalia. After a hearing in which DPS did not participate, the trial court granted Spencer's petition. This restricted appeal followed.

          Expunction

         In its second issue, which we address first because it is dispositive, DPS contends Spencer was not entitled to have his arrest record expunged because the arrest resulted in a final conviction.

         Standard of Review

         A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face of the record consists of all papers on file in the appeal, including the reporter's record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 819 (Tex. App.-San Antonio 1999, no pet.).

         We review a trial court's order granting or denying a petition for expunction under an abuse of discretion standard. See Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). A trial court abuses its discretion if it acts "without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). If an expunction ruling turns on a question of law, we review it de novo because a "trial court has no 'discretion' in determining what the law is or applying the law to the facts." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it misinterprets or misapplies the law. Id.

         Governing Law

         Although the law that governs expunctions is part of the code of criminal procedure, an expunction proceeding is civil in nature and is governed by the rules of civil procedure. See Carson v. State, 65 S.W.3d 774, 784 (Tex. App.-Fort Worth 2001, no pet.). Expunction is not a constitutional or common law right, but purely a statutory privilege. Tex. Dep't of Pub. Safety v. Nail,305 S.W.3d 673, 675 (Tex. App.-Austin 2010, no pet.). The trial court must strictly comply with statutory requirements, and has no equitable power to extend the ...


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