Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 85th District Court of Brazos County, Texas.
Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
L. LONGORIA Justice.
the Texas Department of Public Safety ("the
Department"), argues on appeal that the trial court
erred by granting appellee J.C.D.'s petition for
expunction. We reverse and render.
November 14, 2006, J.C.D. was arrested for robbery and was
later charged by indictment with both robbery and assault
causing bodily injury. See Tex. Penal Code Ann.
§§ 22.01, 29.02 (West, Westlaw through Chapter 49,
2017 R.S.). Pursuant to a plea agreement, the robbery charge
was dismissed, and J.C.D. pleaded guilty to the assault
charge and was sentenced to two years deferred adjudication
February 8, 2016, J.C.D. filed his first amended petition to
expunge the records of his arrest for robbery. In response,
the Department filed an answer denying that J.C.D. was
entitled to an expunction of the arrest because he served a
term of community supervision for the arrest. The trial court
signed an order granting the expunction on March 11, 2016.
The Department then filed this restricted appeal.
Standard of Review
expunction proceedings are typically reviewed under an abuse
of discretion standard, when the trial court's ruling
turns on a question of law, it is reviewed de novo. See
Tex. Dep't of Pub. Safety v. Nail, 305 S.W.3d 673,
678 (Tex. App.-Austin 2010, no pet.); see also Ex parte
T.C., No. 12-13-00138-CV, 2014 WL 4104806, at *3 (Tex.
App.-Tyler Aug. 20, 2014, no pet.) (mem. op.). Under this
standard, we conduct an independent analysis of the record,
giving no deference to the trial court's conclusions.
See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.
1998). Statutory construction is also a question of law that
requires de novo review. McIntyre v. Ramirez, 109
S.W.3d 741, 745 (Tex. 2003).
appeal, the Department argues that the trial court improperly
expunged J.C.D.'s record of arrest. Specifically, the
Department argues that: (1) the trial court misinterpreted
the expungement statute; (2) J.C.D. failed to present legally
sufficient evidence that he was entitled to expunction; and
(3) the trial court failed to hold a hearing. We agree with
prevail on a restricted appeal, a party must show: (1) it
filed notice of appeal within six months after the judgment
was signed; (2) it was a party to the underlying action; (3)
it did not participate in the hearing that resulted in the
judgment complained of and did not timely file any
post-judgment motions or requests for 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).
Department filed its notice of restricted appeal on September
9, 2016, which was less than six months after the order was
signed on March 11, 2016. Thus, the Department timely filed
its notice of appeal. See Tex. R. App. P. 26.1(c).
The Department was a party to the case and filed an answer,
but it did not participate in the hearing that resulted in
the judgment complained of or file any post-judgment motions.
See Alexander, ...