Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 217TH JUDICIAL DISTRICT COURT ANGELINA 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 C.E.A.'s
arrest for possession of a controlled substance. DPS presents
four issues on appeal. We reverse and render.
was arrested on July 1, 2016, and charged with both
possession of a controlled substance and "failure to
identify fugitive with intent to give false
information." Following a jury trial, C.E.A. was found
"not guilty" and acquitted of the possession
charge. However, C.E.A. pleaded "guilty" to the
failure to identify charge, was convicted, and sentenced to
sixty days confinement.
March 2017, C.E.A. filed a petition with the district court
to expunge any and all of the records arising from the July
1, 2016 possession charge. He alleged that he was acquitted
of the possession charge and that it did not result in a
final conviction. DPS filed an answer denying that C.E.A. was
entitled to an expunction because he was convicted as a
result of the arrest. The court set the petition for hearing
on April 13, 2017. The trial court granted the expunction on
April 13, 2017. This restricted appeal followed.
first issue, DPS contends C.E.A. was not entitled to have his
arrest record expunged because the arrest resulted in a final
conviction. In its second issue, DPS alleges that the
expunction order is supported by legally insufficient
evidence. In its third issue, DPS contends the trial court
erred by failing to hold a hearing on the petition. And in
its fourth issue, DPS argues that, if a hearing was held,
C.E.A. failed to have the hearing recorded and the case
should then be remanded for a new trial.
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 ...