Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte Brown

Court of Appeals of Texas, Twelfth District, Tyler

September 20, 2017

EX PARTE: JENNIFER BROWN

         APPEAL FROM THE 115TH JUDICIAL DISTRICT COURT UPSHUR COUNTY, TEXAS (TR.CT.NO. 669-13)

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

          MEMORANDUM OPINION

          BRIAN HOYLE JUSTICE.

         The Texas Department of Public Safety appeals the trial court's order granting an expunction of Jennifer Brown's arrest for aggravated assault with a deadly weapon, aggravated assault family violence, and theft by check. DPS presents four issues on appeal. We reverse and render.

         Background

         Brown was arrested on April 29, 2008, and subsequently charged with aggravated assault with a deadly weapon, aggravated assault family violence, and theft by check. The State dismissed the charges for aggravated assault family violence and theft by check. Brown pleaded guilty to aggravated assault with a deadly weapon. The trial court sentenced her to five years deferred adjudication community supervision.

         In June 2016, Brown filed a motion to expunge all records and files relating to the April 29, 2008 arrest. She alleged, among other things, that there was no court-ordered community supervision for any of the charges. DPS filed an answer and general denial asserting Brown did not qualify for expunction of her records because the aggravated assault with a deadly weapon charge resulted in court-ordered community supervision. The trial court granted Brown's petition without a hearing. This restricted appeal followed.

         Expunction

         In its first issue, DPS contends Brown was not entitled to have her arrest record expunged because she 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. 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.