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Ex parte Ammons

Court of Appeals of Texas, Sixth District, Texarkana

May 15, 2018

EX PARTE TERRY LYNN AMMONS

          Date Submitted: April 17, 2018

          On Appeal from the 4th District Court Rusk County, Texas Trial Court No. 2017-097

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

          OPINION

          RALPH K. BURGESS JUSTICE

         On 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 expunction.

         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 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.

         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.). 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 ...

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