Court of Appeals of Texas, Sixth District, Texarkana
EX PARTE TIMOTHY E. HO
Submitted: May 3, 2018
Appeal from the 196th District Court Hunt County, Texas Trial
Court No. 85199
Morriss, C.J., Moseley and Burgess, JJ.
C. Moseley, Justice.
September 15, 2017, Timothy E. Ho filed a petition for
expunction of all records and files relating to (1) a
dismissed Class B misdemeanor charge for alleged possession
of less than two ounces of marihuana and (2) an allegedly
dismissed, Class C possession of drug paraphernalia charge
that arose from a December 17, 2014, arrest. The expunction
was granted on October 19, 2017. The Texas Department of
Public Safety (DPS) brings this restricted appeal of the
trial court's order of expunction and argues (1) that Ho
was not entitled to expunge records arising from the December
17, 2014, arrest because he was convicted of the drug
paraphernalia charge and (2) that the case must be reversed
and remanded for a new trial because no reporter's record
was made of the hearing. Because we find that a
reporter's record of the hearing is required but was not
made, we reverse the trial court's order of expunction
and remand the cause for a new hearing.
Standard of Review
the DPS is attacking the trial court's judgment by
restricted appeal, it must establish that:
(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.
Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254,
255 (Tex. 2009) (per curiam) (quoting Alexander v.
Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004));
see Tex. R. App. P. 26.1(c), 30.
clerk's record shows that the DPS timely brought its
restricted appeal, was a party to Ho's expunction, did
not participate in the hearing that resulted in the judgment,
and did not file any timely post-judgment motions. See Ex
parte Locke, No. 06-07-00105-CV, 2008 WL 850153, at *1
(Tex. App -Texarkana Mar. 28, 2008, no pet.) (mem. op.).
Thus, we address whether error is apparent on the face of the
face of the record in a restricted appeal consists of all
papers on file in the appeal, including the reporter's
record." Tex Dep't of Pub. Safety v. A.M.,
No. 03-17-00114-CV, 2018 WL 1177601, at *2 (Tex. App-Austin
Mar. 7, 2018, no pet.) (mem. op.) (citing Norman
Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam)). "Absence of legally
sufficient evidence to support a judgment is reviewable in a
restricted appeal." Id. (citing Norman
Commc 'ns, 955 S.W.2d at 270).
Error Is Apparent on the Face of the Record
purpose of the expunction statute is to allow an individual
who has been wrongfully arrested to expunge the records of
that arrest." Ex parte Myers,24 S.W.3d 477,
480 (Tex. App - Texarkana 2000, no pet); see also Tex.
Dep 't of Pub. Safety v. Failla,619 S.W.2d 215, 217
(Tex. Civ. App-Texarkana 1981, no writ) ("This section
was never intended to allow a person who is arrested, pleads
guilty to an offense, and receives probation pursuant to a
guilty plea to expunge arrest and court records concerning
that offense."). However, the "right to expunction
is neither a common law nor a constitutional right, "
but is instead "a statutory privilege which is granted
and can be limited by the legislature." Myers,
24 S.W.3d at 480. "[T]he burden of proving compliance
with the statutory requirements is on the petitioner."
In re D.W.H.,458 S.W.3d 99, 104 (Tex. App.-El Paso
2014, no pet.); see Travis Cty. Dist. Atty. v. M.M.,
354 S.W.3d 920, 923 (Tex. App.-Austin 2011, no pet.). The