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Ex parte J.C.D.

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

August 3, 2017

Ex Parte J.C.D.

         On appeal from the 85th District Court of Brazos County, Texas.

          Before Chief Justice Valdez and Justices Longoria and Hinojosa Memorandum Opinion by Justice Longoria

          MEMORANDUM OPINION

          NORA L. LONGORIA Justice.

         Appellant, 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.

         I. Background[1]

         On 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 community supervision.

         On 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.

         II. Standard of Review

         Although 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).

         III. Discussion

         On 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 the Department.

         A. Restricted Appeal

         To 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).

         The 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, ...


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