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Ex parte Ho

Court of Appeals of Texas, Sixth District, Texarkana

May 4, 2018

EX PARTE TIMOTHY E. HO

          Submitted: May 3, 2018

          On Appeal from the 196th District Court Hunt County, Texas Trial Court No. 85199

          Before Morriss, C.J., Moseley and Burgess, JJ.

          MEMORANDUM OPINION

          Bailey C. Moseley, Justice.

         On 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.

         I. Standard of Review

         Since 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.

         The 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 record.

         "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).

         II. Error Is Apparent on the Face of the Record

         "The 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 ...


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