Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 332nd District Court of Hidalgo County,
Chief Justice Valdez and Justices Rodriguez and Hinojosa
LETICIA HINOJOSA Justice
the Texas Department of Public Safety (the Department),
brings this restricted appeal from the trial court's
order expunging the arrest records of appellee Maria Marcos
Hernandez. By four issues, the Department argues that the
trial court erred in expunging records of an arrest for
driving while intoxicated (DWI). We reverse and render
judgment denying Hernandez's petition for expunction.
her arrest on November 9, 2008, Hernandez was charged with
DWI, a class B misdemeanor. See Tex. Penal Code Ann.
§ 49.04 (West, Westlaw through 2015 R.S.). Pursuant to
Hernandez's plea of guilty, the trial court entered a
judgment adjudicating Hernandez guilty, suspending her
sentence, and placing her on community supervision for a
period of 180 days.
January 6, 2015, Hernandez filed a petition to expunge the
records of the 2008 arrest 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
Hernandez was not entitled to expunction because the arrest
resulted in a final conviction and Hernandez was required to
serve community supervision for the offense. The judgment of
conviction ordering community supervision was attached to the
Department's answer and incorporated by reference.
trial court set the hearing on Hernandez's petition for
April 29, 2015; however, there is no reporter's record
for the proceedings. The trial court later granted
Hernandez's petition for expunction. This restricted
Department argues the trial court erred in granting
Hernandez's petition for expunction for the following
reasons: (1) Hernandez received a final conviction and served
a term of community supervision as a result of her arrest;
(2) the evidence supporting expunction was legally
insufficient; (3) the trial court did not hold a hearing; and
(4) even if there was a hearing, no reporter's record was
attack an order by restricted appeal, the appellant 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; Pike-Grant v. Grant, 447 S.W.3d 884,
886 (Tex. 2014); Bazan v. Canales, 200 S.W.3d 844,
846-47 (Tex. App.-Corpus Christi 2006, no pet.).
Department was a party to the proceeding but did not
participate in the expunction hearing. See Tex. Dep't of Pub. Safety v.
Moore, 51 S.W.3d 355, 357 (Tex. App.-Tyler 2001, no
pet.) (concluding that the Department, as a State agency with
records subject to expunction, was a party to the expunction
suit entitled to bring a restricted appeal). The Department
filed no post-judgment motions, did not request findings and
conclusions of law, and filed its notice of restricted appeal
within six months of the expunction order. We therefore must
determine if error is apparent from the face of the record.
See Pike-Grant, 447 S.W.3d at 886; Bazan,
200 S.W.3d at 846-47. The "face of the record"
includes all papers on file in the appeal and the
reporter's record, if any. Norman Commc'ns v.
Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). A
restricted appeal affords the appellant the same scope of
review as an ordinary appeal- in other words, the entire