Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte Border

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

May 31, 2018

EX PARTE STEVE BORDER

          On appeal from the 329th District Court of Wharton County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Benavides

          MEMORANDUM OPINION

          DORI CONTRERAS JUSTICE.

         Appellant, 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.

         I. Background[1]

         Border 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.).

         On 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, [2]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.

         II. Discussion

         The 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.

         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); see Tex. R. App. P. 26.1(c), 30.

         Here, 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.).

         As to 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.").

         Therefore, 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 conduct ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.