Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 115TH JUDICIAL DISTRICT COURT UPSHUR COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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
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.
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.
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.
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. 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 ...