Court of Appeals of Texas, Twelfth District, Tyler
from the 241st District Court of Smith County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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.
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
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.
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
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.).
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.
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 ...