Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 199th Judicial District Court Collin County,
Texas, Trial Court Cause No. 199-04681-2015
Justices Evans, Stoddart, and Boatright.
Texas Department of Public Safety filed this restricted
appeal challenging the trial court's order granting the
expunction of records relating to Michael Allen Baham's
arrest and prosecution for the offense of assault causing
bodily injury/family violence. In four issues, TDPS generally
complains that Baham was not entitled to expunction under
article 55.01(a)(2)(A), the basis set forth in the expunction
order. For the reasons that follow, we modify the order of
expunction to clarify that Baham was entitled to expunction
under article 55.01(a)(1)(A) and affirm the trial court's
order as modified.
November 12, 2015, Baham filed a verified petition in
district court to expunge all records and files arising out
of his prosecution for a January 25, 2015 offense of assault
causing bodily injury/family violence. In his petition, Baham
alleged he was acquitted of the offense on November 5, 2015
following a trial before the County Court at Law No. 6 in
Collin County. Baham sought expunction "[p]ursuant to
Chapter 55 of the Code of Criminal Procedure" based on
his acquittal, also stating he had not been convicted of a
felony in the five years preceding the date of his arrest and
the offense for which he was charged did not arise out of a
criminal episode. The petition listed seven entities,
including TDPS, as respondents. The trial court considered
and granted the petition for expunction by order signed on
December 4, 2015. The order was also signed by Baham's
counsel and by a Collin County assistant district attorney,
who agreed to the form of the order. The official court
reporter has indicated in a letter to this Court that no
hearing was held on this matter. TDPS filed this restricted
can prevail in a restricted appeal only if it was a party in
the underlying suit and did not participate in the hearing
that resulted in the judgment complained of, filed its notice
of appeal within six months after the judgment was signed,
and establishes error apparent on the face of the record.
See Tex. R. App. P. 26.1(c), 30; Ins. Co. of
State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009)
was named a respondent in Baham's petition, did not
participate in a hearing on the expunction order, and filed
this restricted appeal less than six months after the
expunction order was signed. Accordingly, the disposition of
this appeal depends on whether error is apparent on the face
of the record. 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, if any. See Norman
Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam).
expunction is a statutory privilege, the petitioner bears the
burden of proving all statutory requirements have been met.
Collin Cnty. Criminal Dist. Attorney's Office v.
Dobson, 167 S.W.3d 625, 626 (Tex. App.-Dallas 2005, no
pet.). Moreover, the trial court must strictly comply with
the statutory procedures for expunction. See State v.
Echeverry, 267 S.W.3d 423, 425 (Tex. App.-Corpus Christi
2008, pet. denied).
four of TDPS's issues in this appeal are premised on the
following recital in the trial court's expunction order.
"The Court finds that Michael Allen Baham is entitled to
expunction as provided by Article 55.01(a)(2)(A), Texas Code
of Criminal Procedure, with respect to the following offense
charged against Petitioner, . . . ." TDPS contends that
because article 55.01(a)(2)(A) applies to expunctions based
on indictments or informations that have not been presented
or have been dismissed or quashed, rather than expunctions
based on acquittals, the trial court's order necessarily
establishes error on the face of the record. TDPS argues that
because the trial court's order cites article
55.01(a)(2)(A) as the basis for the expunction, Baham's
failure to meet the requirements for expungement under that
section or comply with the procedural requirements of section
2 of article 55.02 constitutes reversible error. In response,
Baham contends it is undisputed that that he was acquitted of
the charged offense for which he was arrested and the trial
court's order citing article 55.01(a)(2)(A) instead of
article 55.01(a)(1)(A) as the basis for the expunction is
simply a mistake tantamount to a clerical error.
1 of article 55.02 provides a truncated procedure for
expunction of records for an acquitted defendant that
requires neither the filing of a petition nor a hearing.
See Tex. Code Crim. Proc. Ann. art. 55.02 § 1
(West Supp. 2016); In re State Bar of Tex., 440
S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). After
requesting expunction, the defendant must provide the trial
court with information set forth in section 2(b) of article
55.02. Tex. Code Crim. Proc. Ann. art. 55.02 § 2(b)
(West Supp. 2016); In re State Bar of Texas, 440
S.W.3d at 624. Once the necessary information is provided,
the trial court "shall enter an order of expunction for
a person entitled to expunction under Article 55.01(a)(1)(A)
not later than the 30th day after the date of the
acquittal." Tex. Code Crim. Proc. Ann. art. 55.02 §
1. The order is prepared and filed by the acquitted
defendant's counsel or the prosecutor, if the defendant
is without counsel. Id. The court clerk then sends
the order to TDPS and other entities named in the order.
Id., art. 55.02 § 3(c); In re State Bar of
Texas, 440 S.W.3d at 624.
case, Baham filed a verified petition for expunction with the
trial court containing the information listed in section 2(b)
of article 55.02. He asserted he was entitled to an
expunction pursuant to chapter 55 of the code of criminal
procedure because he had been acquitted of the offense
following a bench trial, and further stated the offense did
not rise out a criminal episode. The trial court's docket
sheet indicates in the "Case Information" section
that the "Case Type" is "Exp - 30 day
Acquittal." Likewise, under the "Events &
Orders of the Court" section of the docket sheet, the
first entry is "Expunction 30 Day Acquittal (OCA)"
Indeed, TDPS concedes in its appellate brief that Baham was
acquitted of the offense for which he seeks expunction.
makes no argument that Baham was not entitled to expungement
based on the acquittal pursuant to 55.01(a)(1)(A). Instead,
it contends that because the trial court's order cites
article 55.01(a)(2)(A) as the basis for the expunction,
Baham's acquittal will not support an expunction under
55.01(a)(2)(A) requiring reversal of the order. As noted
above, however, Baham sought expunction "[p]ursuant to
Chapter 55 of the Code of Criminal Procedure" based on
his acquittal. The record shows that Baham was acquitted in
the underlying criminal prosecution on November 5, 2015,
provided the trial ...