Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 329th District Court of Wharton County,
Chief Justice Valdez and Justices Contreras and Benavides
the Texas Department of Public Safety (the Department),
appeals an order expunging all files and records relating to
appellee Steve Border's convictions for possession of a
controlled substance, possession of marijuana, and unlawful
carrying of a weapon. 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 Border's
petition for expunction.
was convicted on August 9, 1990, for possession of a
controlled substance and placed on community supervision.
See generally Tex. Health & Safety Code Ann. ch.
481 (West, Westlaw through 2017 1st C.S.) (Texas Controlled
Substances Act). On October 5, 1992, Border was convicted and
fined for possession of marijuana and for unlawful carrying
of a weapon. See id. § 481.121; Tex. Penal Code
Ann. § 46.02 (West, Westlaw through 2017 1st C.S.).
February 18, 2016, Border filed a petition to expunge the
records stemming from the 1990 charge of possession of a
controlled substance and listed the Department as one of the
responding agencies. Border then filed an amended petition
asking the trial court for an expunction of the records
stemming from that charge and the two 1992 charges. The
Department filed an answer on May 5, 2016, introducing into
the record the judgments of conviction for the three offenses
and stating that Border did not satisfy the statutory
requirements for expunction. The trial court scheduled a
hearing on the petition for August 18, 2016 and provided
notice to the Department; however, there is no reporter's
record of the proceeding. The Department did not participate
in the hearing, file any post-judgment motions, or request
any findings of fact or conclusions of law. The trial court
granted Border's petition, finding that he was
"entitled to an expunction . . . under Article
55.01(a)(2)(B) of the Texas Code of Criminal Procedure."
The Department then filed its notice of restricted appeal on
February 17, 2016.
Department argues that the trial court improperly expunged
Border's records of arrest. Specifically, the Department
argues by four issues that: (1) the trial court
misinterpreted the expungement statute; (2) appellant failed
to present legally sufficient evidence that he was entitled
to an expunction; (3) the trial court erred by not holding a
hearing on the petition; and (4) if there was a hearing, the
expunction order must be reversed and the case remanded for a
new trial because there is no reporter's record.
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); see
Tex. R. App. P. 26.1(c), 30.
the order of expunction was signed on August 18, 2016, and
the Department timely filed its notice of restricted appeal
on February 17, 2017. Thus, the Department filed its notice
of restricted appeal within six months after the judgment was
signed. See Tex. R. App. P. 26.1(c); 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.).
the second requirement, the record shows that the Department
was a party to the underlying suit. The third requirement is
also met despite the Department filing an answer to
Border's petition-the Department did not participate in
the hearing for the expunction order, file any post-judgment
motion, or request findings of fact and conclusions of law.
See, e.g., Ex parte Vega, 510 S.W.3d 544, 547-48
(Tex. App.- Corpus Christi 2016, no pet.) ("We conclude
the Department [met the third requirement] because even
though it filed an answer in response to [the] petition, it
did not participate in the hearing on [the] petition that
resulted in the expunction order.").
the only remaining question is whether error is apparent on
the face of the record. The "face of the record"
consists of all the papers that were before the trial court
at the time it rendered judgment. Bahar v. Lyon Fin.
Servs., Inc., 330 S.W.3d 379, 384 (Tex. App.-Austin
2010, pet. denied); Tex. Dep't of Pub. Safety v.
Fredricks, 235 S.W.3d 275, 280 (Tex. App.-Corpus Christi
2007, no pet.). With this limitation, our scope of review is
otherwise the same as in an ordinary appeal. Tex.
Dep't of Pub. Safety v. Foster,398 S.W.3d 887, 890
(Tex. App.-Dallas 2013, no pet.). Under this standard, we