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Ex parte Hernandez

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 4, 2017

EX PARTE MARIA MARCOS HERNANDEZ

         On appeal from the 332nd District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Rodriguez and Hinojosa

          MEMORANDUM OPINION

          LETICIA HINOJOSA Justice

         Appellant, 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.

         I. Background[1]

         Following 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.

         On 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.

         The 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 appeal followed.[2]

         II. Discussion

         The 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 prepared.

         A. Restricted Appeal

         To 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.).

         The Department was a party to the proceeding but did not participate in the expunction hearing.[3] 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 case. Id.

         B. ...


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