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Ex parte Egan

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

June 28, 2018

EX PARTE MELISSA JO MORROW EGAN

          On appeal from the 275th District Court of Hidalgo County, Texas.

          Before Rodriguez, Benavides, and Longoria Justices

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ JUSTICE

         The trial court granted expunction of criminal records for appellee Melissa Jo Morrow Egan. Appellant, the Texas Department of Public Safety (DPS), filed this restricted appeal. By four issues, DPS contends the trial court abused its discretion by granting expunction without holding a recorded hearing and despite a judgment showing that Egan was not eligible for expunction. We reverse and render.

         I. BACKGROUND

         Egan filed a petition seeking the expunction of records related to her arrest on April 23, 2014-specifically, records concerning two charges: violation of a duty upon striking structure/highway landscape[1] and failure to stop and give information after an accident involving damage to a vehicle. [2] Egan alleged that these two charges had been dismissed and that they were therefore eligible for expunction.

         DPS filed an answer in which it asserted that Egan was ineligible under the expunction statute. DPS alleged that while two of the charges related to Egan's arrest had been dismissed, the arrest led to a third charge-driving while intoxicated[3]-which resulted in a conviction. DPS attached various documents to its answer, including charges for the three offenses. DPS also attached a judgment by which Egan pleaded guilty to driving while intoxicated and was sentenced to 180 days in county jail and a fine, with the sentence suspended in favor of community supervision. DPS asserted that because the arrest resulted in a conviction and community supervision, Egan was ineligible for expunction of any records related to the arrest, even for the two charges that were dismissed.

         The trial court granted expunction of the two dismissed charges. In its order, the trial court found that expunction was appropriate because the dismissal of these two charges indicated a lack of probable cause. The expunction order did not mention a third charge or any conviction for driving while intoxicated which originated from the same arrest.

         DPS filed this restricted appeal of the expunction order.

         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 S.W.3d 884, 886 (Tex. 2014) (per curiam). We liberally construe the non-participation requirement in favor of the right to appeal. Id.

         As to the first requirement, DPS filed its notice of appeal within six months of the judgment: the trial court signed the order of expunction on May 12, 2016, and DPS filed its notice of restricted appeal on November 10, 2016. See id.

         As to the second requirement, DPS is a proper party to this suit. See id. Egan listed DPS as an entity potentially having records that she sought expunged, and DPS was subject to the expunction order, providing DPS with the right to appeal the court's judgment "in the same manner as in other civil cases." See Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.-Corpus Christi 2016, no pet.).

         As to the third requirement, a review of the record confirms that DPS did not file any post-judgment motions or requests for findings of fact and conclusions of law. See Pike-Grant, 447 S.W.3d at 886. Furthermore, there is no record of any hearing or proceedings in which DPS could have "participate[d]." See id. Although DPS filed an answer in response to Egan's petition, "[f]iling an answer . . . is not ...


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