Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 17, 2018
Appeal from the 4th District Court Rusk County, Texas Trial
Court No. 2017-097
Morriss, C.J., Moseley and Burgess, JJ.
K. BURGESS JUSTICE
April 18, 2017, Terry Lynn Ammons filed a petition for
expunction of all records and files relating to a dismissed
charge for alleged aggravated assault with a deadly weapon
filed after his arrest in Rusk County, Texas, on June 25,
2016. The expunction was granted on June 15, 2017. The Texas
Department of Public Safety (DPS) brings this restricted
appeal of the trial court's order of expunction and
argues, among other things, that the case must be reversed
because the expunction statute required three years to elapse
before Ammons was eligible for an expunction. Because we
agree, we reverse the trial court's order of expunction
and render judgment denying Ammons' petition for
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 established that the DPS timely brought
its restricted appeal, was a party to Ammons' 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.
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.). 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." Id. The expunction statute,
Article 55.01 of the Texas Code of Criminal Procedure, sets
forth the requirements necessary to obtain the statutory
privilege of expunction. Tex. Code Crim. Proc. Ann. art.
55.01 (West Supp. 2017)). In pertinent part, the version of
Article 55.01 applicable to this case provided:
(a) A person who has been placed under a custodial or
noncustodial arrest for commission of either a felony or
misdemeanor is entitled to have all records and ...