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Ex parte C.E.A.

Court of Appeals of Texas, Twelfth District, Tyler

April 25, 2018

EX PARTE: C.E.A.

          APPEAL FROM THE 217TH JUDICIAL DISTRICT COURT ANGELINA COUNTY, TEXAS (TR.CT.NO. 2016-0622)

          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 C.E.A.'s arrest for possession of a controlled substance. DPS presents four issues on appeal. We reverse and render.

         Background

         C.E.A. 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.

         In 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.[1] The trial court granted the expunction on April 13, 2017. This restricted appeal followed.

         Expunction

         In its 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.

         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 ...


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