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Ex parte C.Z.D.

Court of Appeals of Texas, Twelfth District, Tyler

June 20, 2018

EX PARTE C.Z.D.

          APPEAL FROM THE 420TH JUDICIAL DISTRICT COURT NACOGDOCHES COUNTY, TEXAS (Tr.Ct.No. C1732785)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          GREG NEELEY JUSTICE.

         The Texas Department of Public Safety appeals the trial court's order granting an expunction of C.Z.D.'s arrest for possession of a controlled substance. DPS presents four issues on appeal. We reverse and render.

         Background

         C.Z.D. was arrested on September 22, 2015, and subsequently charged by indictment with possession of a controlled substance, tetrahydrocannabinol, in the amount of four grams or more but less than 400 grams, a second degree felony. The State dismissed the possession of a controlled substance charge and charged him with possession of marijuana in an amount of two ounces or less, a Class B misdemeanor. C.Z.D. pleaded "guilty" and was sentenced to six months deferred adjudication community supervision.

         In May 2017, C.Z.D. filed a petition to expunge the records relating to the felony offense of possession of a controlled substance. He alleged that he received and completed pre-trial diversion for the offense. DPS filed an answer and general denial asserting C.Z.D. did not qualify for expunction of his records because the controlled substance charge resulted in court-ordered community supervision for the marijuana charge. The trial court granted C.Z.D.'s petition without a hearing. This restricted appeal followed.

         Expunction

         In its first issue, DPS contends C.Z.D. was not entitled to have his records expunged because he served community supervision as a result of the arrest.

         Standard of Review

         A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face of the record consists of all papers on file in the appeal, including the reporter's record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Flores v. Brimex Ltd. P'ship, 5 S.W.3d 816, 819 (Tex. App.-San Antonio 1999, no pet.).

         We review a trial court's order granting or denying a petition for expunction under an abuse of discretion standard. See Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). A trial court abuses its discretion if it acts "without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). If an expunction ruling turns on a question of law, we review it de novo because a "trial court has no 'discretion' in determining what the law is or applying the law to the facts." Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it misinterprets or misapplies the law. Id.

         Governing Law

         Although the law that governs expunctions is part of the code of criminal procedure, an expunction proceeding is civil in nature and is governed by the rules of civil procedure. See Carson v. State, 65 S.W.3d 774, 784 (Tex. App.-Fort Worth 2001, no pet.). Expunction is not a constitutional or common law right, but purely a statutory privilege. Tex. Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex. App.-Austin 2010, no pet.). The trial court must strictly comply with statutory requirements, and has no equitable power to ...


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