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Texas Department of Public Safety v. Gamboa

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 31, 2018

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
JASON EDWARD GAMBOA, Appellee.

          On appeal from the 107th District Court of Cameron County, Texas.

          Before Justices Rodriguez, Contreras, and Benavides

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE.

         By two issues, the Texas Department of Public Safety (the Department) brings a restricted appeal challenging the expunction order granted for Jason Edward Gamboa. The Department alleges that Gamboa was not entitled to an expunction because (1) he served a term of community supervision and (2) the statute of limitations had not expired. We reverse and render.

         I. Background

         Gamboa was originally arrested and indicted for aggravated sexual assault of a child and indecency with a child by sexual contact. See Tex. Penal Code Ann. §§ 22.021, 22.11 (West, Westlaw through 2017 1st C.S.). Pursuant to a plea agreement with the State, Gamboa was additionally charged with injury to a child, to which he pleaded no contest and was sentenced to three years deferred-adjudication community supervision. See id. § 22.04 (West, Westlaw through 2017 1st C.S.). The original charges of aggravated sexual assault and indecency with a child were dismissed. See id. §§ 22.021, 22.11.

         Gamboa filed a petition to expunge the aggravated sexual assault and indecency with a child charges. See id.; see also Tex. Code Crim. Proc. Ann. art. 55.01 (West, Westlaw through 2017 1st C.S.) (expunction statute). The Department filed an answer stating that Gamboa was not entitled to the expunction due to his term of community supervision. At a hearing in the trial court, Gamboa testified that the initial charges were dismissed against him and the case he pleaded no contest to was filed in conjunction with the previous charges. The State had no objections to the expunction at the hearing, but stated on the record that the Department had filed an objection. The Department did not appear at the hearing. The trial court granted the expunction and signed the order on November 18, 2015. The Department filed this restricted appeal on May 18, 2016.[1]

         II. Restricted Appeal

         A. Standard of Review

         Restricted appeals are governed by Rule 30 of the Texas Rules of Appellate Procedure. See Tex. R. App. P. 30. When a party does not participate in person or through counsel in a hearing that results in a judgment, that party may be eligible for a restricted appeal. See id.

         To sustain a restricted appeal, the filing party must prove: (1) the party filed notice of the restricted appeal within six months after the judgment was signed; (2) the party was a party to the underlying lawsuit; (3) the party did not participate in the hearing that resulted in the judgment complained of, and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent from the fact of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam); Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

         B. Applicable Law and Discussion

         In order to be entitled to a restricted appeal, the Department must meet the criteria related to a restricted appeal. The Department established that it filed a notice of restricted appeal within six months of the judgment and that it was a party to the underlying lawsuit, thereby meeting the first two prongs required. However, the third prong required the Department to show it did not participate in the hearing, file any post-judgment motions, or request findings from the trial court. See Pike-Grant, 447 S.W.3d at 886.

         We are required to liberally construe the non-participation requirement for restricted appeals in favor of the right to appeal. Pike-Grant, 447 S.W.3d at 886; Stubbs v. Stubbs, 685 S.W.2d 643, 644-45 (Tex. 1985). "The nature and extent of participation precluding a restricted appeal in any particular case is a matter of degree because trial courts decide cases in a myriad of procedural settings." Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). The question is whether the appellant has participated in "the decision-making event" that results in the judgment adjudication appellant's rights. Id; In re B.H.B., 336 S.W.3d 303, 305 (Tex. App.-San Antonio 2010, pet. denied). A restricted appeal is not an equitable proceeding. Texaco, Inc., 925 S.W.2d at 590. "[A restricted appeal] appellant is not required to show diligence or lack of negligence before its complaints will be heard [because] it is the fact of nonparticipation, not the reason for it, that determines the right to [a restricted appeal]." Id.; see In re Marriage of Butts, 444 S.W.3d 147, 152 (Tex. App.-Houston [14th Dist.] 2014, no pet.); Midstate Envtl. Servs.,LP v. Peterson, 435 S.W.3d 287, 291 (Tex. ...


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