Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 402ND DISTRICT COURT WOOD COUNTY, TEXAS (Tr.Ct.No.
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen Chief Justice
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.
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
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.
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.
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.).
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.
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 ...