Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 2ND JUDICIAL DISTRICT COURT CHEROKEE COUNTY, No.
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
T. Worthen Chief Justice
Texas Department of Public Safety (DPS) appeals the trial
court's order granting an expunction of L.M.W.'s
arrest for public intoxication and deadly conduct. DPS
presents two issues on appeal. We reverse and render.
was arrested on October 24, 2016, and charged with deadly
conduct and public intoxication. She completed a pre-trial
diversion program for dismissal of the deadly conduct charge.
She pleaded no contest to the public intoxication charge, for
which she was convicted, sentenced to a fine of $215.00, and
granted one day of jail time credit.
March 2018, L.M.W. filed a petition to expunge any and all of
the records arising from the October 2016 arrest. She alleged
that the arrest did not result in a final conviction. DPS
filed an answer and general denial asserting that L.M.W. did
not qualify for expunction of her records because the October
24, 2016, arrest resulted in a final conviction for public
intoxication. Copies of the information, arrest report,
probable cause affidavit, final judgment, and payment
receipts were attached to DPS's answer. After a hearing
in which DPS did not participate and L.M.W. was the only
witness, the trial court granted L.M.W.'s petition. This
restricted appeal followed.
second issue, which is dispositive, DPS contends L.M.W. did
not present legally sufficient evidence to support her
assertion that the public intoxication charge did not result
in a final conviction.
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.). The
absence of legally sufficient evidence to support a judgment
is reviewable in a restricted appeal. Norman
Commc'ns, 955 S.W.2d at 270; Flores, 5
S.W.3d at 819. We 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., Inc.
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.
legal sufficiency review, we determine "whether the
evidence at trial would enable reasonable and fair-minded
people to reach the verdict under review." City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005);
Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 582
(Tex. App.-Texarkana 2012, no pet.). We credit favorable
evidence if a reasonable factfinder could and disregard
contrary evidence unless a reasonable fact-finder could not.
City of Keller, 168 S.W.3d at 827. The evidence is
legally insufficient if (1) there is a complete absence of
evidence of a vital fact; (2) the rules of law or of evidence
bar the court from giving weight to the only evidence offered
to prove a vital fact; (3) there is no more than a mere
scintilla of evidence offered to prove a vital fact; or (4)
the opposite of the vital fact is conclusively established by
the evidence. Jelinek v. Casas, 328 S.W.3d 526, 532
(Tex. 2010). There is more than a scintilla of evidence when
the evidence reaches a level enabling reasonable and
fair-minded people to differ in their conclusions.
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706,
711 (Tex. 1997). "Less than a scintilla of evidence
exists when the evidence is 'so weak as to do no more
than create a mere surmise or suspicion' of a fact."
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751
(Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650
S.W.2d 61, 63 (Tex. 1983)).
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 extend ...