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Texas Department of Public Safety v. C.B.

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

June 21, 2018

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
C.B., Appellee.

          On appeal from the Criminal District Court of Jefferson County, Texas.

          Before Justices Rodriguez, Benavides, and Longoria

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ, JUSTICE.

         In this restricted appeal, appellant Texas Department of Public Safety (D.P.S.) challenges the order of expunction that the trial court granted in favor of appellee C.B. By four issues, D.P.S. challenges the order granting expunction. We affirm.[1]

         I. Background

         On March 27, 2014, a Jefferson County grand jury returned an indictment against C.B. The indictment alleged that in December 2013, C.B. was arrested for possession of a controlled substance in penalty group 2-amphetamine-in an amount less than 1 gram, a state jail felony. See Tex. Health & Safety Code Ann. § 481.116 (West, Westlaw through 2017 1st C.S.).

         On November 4, 2014, a Jefferson County assistant district attorney filed a motion to dismiss the case against C.B. in the interest of justice. The trial court granted the motion on the same day.

         On October 27, 2016, C.B. filed a petition seeking the expunction of records related to his arrest in December 2013. C.B. alleged that he satisfied all relevant conditions of the expunction statute, in large part because the charge against him had been dismissed. Attached to C.B.'s petition was the order of dismissal. The petition named several government entities possessing records subject to expunction, including the Jefferson County district attorney's office and D.P.S.

         The district attorney filed a response indicating that "the State of Texas does not oppose the Petition for Expunction and prays the Court to enter an appropriate order after due consideration." However, D.P.S. filed an answer and general denial. In it, D.P.S. asserted that C.B. was, in fact, charged with two offenses as a result of his 2013 arrest: the felony charge for possession of amphetamine and a second charge for possession of marijuana in an amount less than two ounces, a class B misdemeanor. See id. § 481.121(a), (b)(1) (West, Westlaw through 2017 1st C.S.). D.P.S. alleged that C.B. pleaded nolo contendere to the marijuana charge and was sentenced to six months' deferred adjudication community supervision, rendering him ineligible to have any records related to the 2013 arrest expunged.

         A hearing was set for December 5, 2016. The notice of hearing reflects that it was served upon the district attorney's office, D.P.S., and other government entities. D.P.S. did not appear, and no record was taken of the hearing.

         On December 6, 2016, the trial court entered an order granting C.B.'s petition and providing for expunction of all records related to C.B.'s 2013 arrest. The order stated that "all procedural and substantive requirements for expunction of the criminal records, specified herein, have been met." In particular, the order stated that while C.B. was indicted for felony possession of amphetamine as a result of the arrest, "this matter was not prosecuted against Petitioner for the stated charges alleged and was dismissed by Order of the Court on November 4, 2014."

         Following the order of expunction, D.P.S. filed this restricted appeal. D.P.S. submitted C.B.'s 2013 arrest report, which described his arrest for possession of amphetamine and marijuana. D.P.S. also submitted documentation which, it contended, showed that C.B. had pleaded guilty and received community supervision for a misdemeanor marijuana charge stemming from his arrest in 2013, and that C.B. was therefore ineligible for expunction of records from the 2013 arrest. However, the documentation submitted by D.P.S. described an arrest for marijuana possession in September 2010, and it bore no apparent relation to C.B.'s 2013 arrest. Other than D.P.S.'s assertions, the record contains no indication that C.B. was ever formally charged with, convicted of, or placed on community supervision for the offense of misdemeanor marijuana possession as a result of his 2013 arrest.

         II. The First Three Requirements of a Restricted Appeal

         An appellant must establish four elements to succeed in a restricted appeal: (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 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 ...


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