Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 87th District Court of Freestone County,
Chief Justice Valdez and Justices Contreras and Hinojosa
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. 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.
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. 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.
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,  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.
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
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),
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.
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.
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