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Ex parte Louden

Court of Appeals of Texas, Twelfth District, Tyler

July 31, 2017

EX PARTE: RICHARD LOUDEN

         APPEAL FROM THE 402ND DISTRICT COURT WOOD COUNTY, TEXAS (Tr.Ct.No. 2015-710)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          James T. Worthen Chief Justice

         The Texas Department of Public Safety appeals the trial court's order granting an expunction of Richard Louden's arrest for driving while intoxicated. DPS presents two issues on appeal. We reverse and render.

         Background

         Louden was arrested on July 16, 2006, and subsequently charged with driving while intoxicated. The State dismissed Louden's DWI charge and charged him with deadly conduct. Louden pleaded guilty to the deadly conduct charge. The trial court sentenced him to one year deferred adjudication community supervision.

         In December 2015, Louden filed a motion to expunge all records and files relating to the DWI charge. He alleged, among other things, that there was no court-ordered community supervision for DWI. DPS filed an answer and general denial asserting Louden did not qualify for expunction of his records because the DWI charge resulted in court-ordered community supervision for the deadly conduct charge. After a hearing in which DPS did not participate, the trial court granted Louden's petition. This restricted appeal followed.

         Expunction

         In its first issue, DPS contends Louden was not entitled to have his arrest record expunged because he served community supervision as a result of the arrest.

         Standard of Review

         A party 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.).

         We 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., Inc. 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.

         Governing Law

         Although 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 ...


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