Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the Criminal District Court of Jefferson County,
Justices Rodriguez, Benavides, and Longoria
V. RODRIGUEZ, JUSTICE.
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
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.).
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.
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
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
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.
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."
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.
The First Three Requirements of a Restricted
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 ...