Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 103rd District Court of Cameron County,
Justices Contreras, Benavides, and Hinojosa
the Texas Department of Public Safety (the Department),
brings this restricted appeal from the trial court's
order expunging the arrest records of appellee, Darlene Gail
McKinney. The Department contends by two issues that the
trial court erred in expunging records of two arrests for
driving while intoxicated (DWI). We reverse and render
judgment denying McKinney's petition for expunction.
was arrested for DWI on May 23, 1998 and July 20, 2013. After
the 1998 arrest, McKinney was charged by information with
DWI, a Class B misdemeanor. See Tex. Penal Code Ann.
§ 49.04 (West, Westlaw through 2015 R.S.). Pursuant to
an agreement, the State moved to dismiss the DWI charge in
exchange for McKinney's plea of guilty to reckless
driving, a misdemeanor carrying a punishment not to exceed a
fine of $200 and confinement in county jail for thirty days.
See Tex. Transp. Code Ann. § 545.401 (West,
Westlaw through 2015 R.S.). The trial court granted the
State's motion to dismiss the DWI charge and the State
then filed a new information alleging reckless driving under
a separate cause number. On February 9, 1999, McKinney
pleaded guilty to the offense of reckless driving. The trial
court deferred a finding of guilt, placed McKinney on
community supervision for nine months, and assessed a $200
fine. The conditions of community supervision, which were
attached to the judgment, contained a handwritten addendum
stating that "Defendant shall have unsupervised
her 2013 arrest, McKinney was again charged by information
with DWI. In February 2015, the State charged McKinney in a
separate cause number with the offense of failing to drive
within a single lane on a multiple-lane roadway, a
misdemeanor, also allegedly committed on July 20, 2013.
See id. § 545.060(a) (West, Westlaw through
2015 R.S.); see also id. § 542.301 (West,
Westlaw through 2015 R.S.). McKinney pleaded nolo contendere
to the latter offense on February 23, 2015, and the trial
court found her guilty and sentenced her to a fine and court
costs of $300.10. The State then moved to dismiss the DWI
charge and the trial court granted the motion.
March 16, 2015, McKinney filed a petition to expunge the
records of both the 1998 and 2013 arrests under article
55.01(a)(2) of the Texas Code of Criminal Procedure.
See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)
(West, Westlaw through 2015 R.S.). The Department filed an
answer asserting that expunction is barred (1) as to the 1998
arrest because that arrest resulted in the imposition of
court-ordered community supervision, and (2) as to the 2013
arrest because that arrest resulted in a conviction.
testified at a May 27, 2015 hearing that her attorney in the
1998 case told her that her conviction for reckless driving
would make her arrest eligible for expunction because her
"probation . . . was specifically to be
unsupervised." McKinney stated that she would not have
agreed to plead guilty to the reckless driving charge if she
believed that expunction was not available. As to the 2013
arrest, McKinney's attorney argued that offense was
"not a charge deriving from the arrest" because the
order dismissing the DWI charge states that the reason for
the dismissal was that she "was convicted in another
case." Counsel further stated that "we intended to
get deferred adjudication on that, as well, " but
"the Judge didn't write it down as deferred
adjudication." After hearing further argument from
counsel at another hearing on September 22, 2015, the trial
court granted McKinney's petition for expunction as to
both the 1998 and 2013 arrests.
restricted appeal followed.
attack an order by restricted appeal, the Department must
show: (1) it was a party who did not participate in the
hearing that resulted in the judgment complained of; (2) it
filed a notice of appeal within six months after the order
was signed; (3) it did not timely file a post-judgment motion
or request findings of fact and conclusions of law; and (4)
error is apparent on the face of the record. Tex.R.App.P.
26.1(c), 30; Alexander v. Lynda's Boutique, 134
S.W.3d 845, 848 (Tex. 2004); Tex. Dep't of Pub.
Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex.
App.-Corpus Christi 2007, no pet.).
record indicates that the Department was a party, that it did
not appear at either hearing,  that it filed a notice of
restricted appeal within six months of the expunction order,
and that no post-judgment motions or request for findings of
fact and conclusions of law were filed. We therefore must
determine if error is apparent from the face of the record.
See Alexander, 134 S.W.3d at 848;
Fredricks, 235 S.W.3d at 278. The "face of the