Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 275th District Court of Hidalgo County,
Rodriguez, Benavides, and Longoria Justices
V. RODRIGUEZ JUSTICE
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.
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 and failure to stop and give
information after an accident involving damage to a vehicle.
Egan alleged that these two charges had been dismissed and
that they were therefore eligible for expunction.
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-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.
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.
filed this restricted appeal of the expunction order.
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 S.W.3d 884, 886 (Tex. 2014)
(per curiam). We liberally construe the non-participation
requirement in favor of the right to appeal. Id.
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.
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.).
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 ...