Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 420TH JUDICIAL DISTRICT COURT NACOGDOCHES COUNTY,
TEXAS (Tr.Ct.No. C1732785)
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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.
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.
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.
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.
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.).
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.
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 ...