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Ex parte F.T.K.

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

May 31, 2018

EX PARTE F.T.K.

          On appeal from the 87th District Court of Freestone County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa

          MEMORANDUM OPINION

          DORI CONTRERAS JUSTICE.

         Appellant, the Texas Department of Public Safety (the Department), appeals an order expunging all files and records relating to the arrest of appellee, Floyd Thomas Killough.[1] See generally Tex. Code Crim. Proc. Ann. arts. 55.01-55.06 (West, Westlaw through 2017 1st C.S.). We reverse and render judgment denying Killough's petition for expunction.

         I. Background[2]

         Killough was arrested on January 4, 2015, for aggravated assault with a deadly weapon and subsequently brought to trial. See Tex. Penal Code Ann. § 22.02 (West, Westlaw through 2017 1st C.S.). On January 21, 2016, a jury acquitted Killough of the aggravated assault charge but convicted him of the lesser included offense of assault causing bodily injury against a family member.[3] See Tex. Code Crim. PROc. Ann. arts. 37.08, 37.09 (West, Westlaw through 2017 1st C.S.); Tex. Penal Code Ann. §§ 22.01, 22.02 (West, Westlaw through 2017 1st C.S.). On February 4, 2016, Killough filed a petition with the trial court to expunge the records of the aggravated assault charge and listed the Department as one of the responding agencies in his petition. See Tex. Code Crim. Proc. Ann. art. 55.01. The record is silent as to whether the Department received notice of the hearing on the petition or a copy of the petition, and the Department maintains on appeal that it received neither.[4]

         The trial court granted Killough the expunction on March 11, 2016, finding that he was "entitled to expunction as provided by Article 55.01(a)(1)(A) [of] the Texas Code of Criminal Procedure . . . ." The Department did not participate in any hearing, [5] file any post-judgment motions, or request any findings of fact or conclusions of law. On March 16, 2016, the Department received notice of the signed order of expunction. The Department then filed its notice of restricted appeal on September 9, 2016.

         II. Discussion

         The Department argues that the trial court improperly expunged Killough's record of arrest. Specifically, the Department argues by two issues that: (1) the trial court misinterpreted the expungement statute; and (2) the trial court failed to give the Department notice of the hearing and a copy of the petition. On the other hand, Killough contends that the trial court properly interpreted the expunction statute, and that this Court does not have jurisdiction because the Department filed its notice of restricted appeal beyond the statutory deadline. See Tex. R. App. P. 26.1(c). We agree with the Department.

         A. Restricted Appeal

         To prevail on a restricted appeal, the Department must establish that: (1) it filed notice of the restricted appeal within six months after judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the complained-of judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam); Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.-Corpus Christi 2016, no pet.); see Tex. R. App. P. 26.1(c), 30.

         Regarding the first requirement, Killough contends that the Department filed its notice of restricted appeal outside the six-month deadline because it filed it 182 days after the trial court entered the order of expunction. However, for a restricted appeal we count the number of months, not the number of days. See Tex. R. App. P. 26.1(c) (providing that "in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed"); see also, e.g., Ex parte Davila, No. 13-15-00202-CV, 2016 WL 872997, at *2 (Tex. App.-Corpus Christi Feb. 18, 2016, no pet.) (mem. op.) ("Regarding the [timeliness] requirement of a restricted appeal, the record reflects that the trial court signed the order of expunction on October 22, 2014, and the Department filed its notice of restricted appeal on April 22, 2015, within the six-month deadline. So the Department established the [timeliness] requirement."). Here, the court entered the order of expunction on March 11, 2016, and the Department timely filed its notice of restricted appeal on September 9, 2016. Killough's contention that the Department filed beyond the statutory deadline is incorrect because the Department filed before September 12, 2016.

         As to the second and third requirements, the record reflects that the Department was listed in Killough's petition as one of the parties to the underlying suit, and the Department did not participate in any hearing on the expunction order, file any post-judgment motion, or request findings of fact and conclusions of law. Therefore, the only remaining question is whether error is apparent on the face of the record.

         B. Applicable Law and ...


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