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Ex parte Butler

Court of Appeals of Texas, Sixth District, Texarkana

May 7, 2019

EX PARTE TAMMY BUTLER

          Date Submitted: April 24, 2019

          On Appeal from the 6th District Court Red River County, Texas Trial Court No. CV04386

          Before Morriss, C.J., Burgess and Stevens, JJ.

          MEMORANDUM OPINION

          Josh R. Morriss, III Chief Justice

         After two criminal charges against Tammy Butler-engaging in organized criminal activity and tampering with a governmental record-were dismissed, the trial court held a subsequent proceeding in which it expunged her arrest records related to those dismissed charges.[1]See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (West 2018). The Texas Department of Public Safety (DPS) appeals from that judgment, contending that Butler is not entitled to expunction because (1) DPS did not receive notice of the expunction hearing, and (2) Butler served a term of court-ordered community supervision arising out of her arrest. Because DPS did not receive notice of the expunction hearing, we reverse and set aside the expunction order.

         An appellate court reviews a trial court's ruling on a petition for expunction under an abuse of discretion. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). "It is an abuse of discretion for a trial court to rule arbitrarily, unreasonably, or without regard to guiding legal principles." Bexar Cty., Tex. v. Deputy Sheriff's Ass'n of Bexar Cty., 429 S.W.3d 673, 677 (Tex. App.-San Antonio 2014, no pet.) (quoting Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)). However, when a trial court's ruling turns on a question of law, it is reviewed de novo. Ex parte S.D., 457 S.W.3d 168, 169 (Tex. App.-Amarillo 2015, no pet.).

         On December 11, 2018, DPS filed its notice of restricted appeal in this Court. On appeal, DPS maintains that Butler was not entitled to expunction of her records because (1) DPS did not receive notice of any of the hearings in the matter, and (2) Butler served a term of deferred adjudication community supervision that arose out of her arrest. In order to prevail in this restricted appeal, DPS is required to establish that (1) it filed its restricted notice of appeal within six months after the judgment was signed; (2) it was a party to the underlying suit; (3) it did not participate in the hearing that resulted in the complained-of judgment; (4) it did not timely file any post-judgment motions or request for findings of fact and conclusions of law; and (5) error is apparent on the face of the record. Tex.R.App.P. 26.1(c), 30.

         The clerk's record shows that DPS timely brought its restricted appeal, [2] was a party to Butler's expunction proceeding, did not participate in the hearing that resulted in the judgment, and did not file a timely post-judgment motion. Thus, the only remaining issue is whether error is apparent on the face of the record. In re Estate of Wilson, 252 S.W.3d 708, 711 (Tex. App.- Texarkana 2008, no pet.) (citing Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943 (Tex. 1991)). The "face of the record" consists of all the papers that were before the trial court at the time it rendered its judgment. Id. (citing DSC. Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991)). "[A] restricted appeal requires error that is apparent, not error that may be inferred." Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004).

         Expunction is a statutory privilege, not a common-law or constitutional right. McCarroll v. Tex. Dep't of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.-Fort Worth 2002, no pet.). While the expunction statute is located in the Texas Code of Criminal Procedure, expunction is civil in nature. Harris Cty. Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.-Houston [14th Dist.] 1997, no pet.). The petitioner carries the burden to show that all of the statutory requirements have been met. Harris Cty. Dist. Attorney's Office v. Hopson, 880 S.W.2d 1, 3 (Tex. App.-Houston [14th Dist.] 1994, no writ). A trial court must strictly comply with the statutory requirements, and it has no equitable power to extend the protections of the expunction statute. Id.

         In its first point of error, DPS contends the trial court erred in expunging Butler's arrest records because DPS did not receive notice of the expunction hearing. The expunction statute compels the trial court to notify the law enforcement agencies listed in the expunction petition of the expunction hearing.

The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing by: (1) certified mail, return receipt requested; or (2) secure electronic mail, electronic transmission, or facsimile transmission.

Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c)(1)-(2) (West 2018). The procedures set out in Article 55.02 are mandatory and must be complied with during an expunction hearing. Tex. Dep't of Pub. Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.-San Antonio 1989, no writ). When the record fails to demonstrate that the agency was notified pursuant to the statute, the record reveals a violation of the statute, and the expunction order must be set aside. See Rodriguez v. T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.-San Antonio 1991, no writ) (reversing trial court and setting aside expunction order after finding that hearing took place without notice to respondent); Riley, 773 S.W.2d at 758 (setting aside expunction order because record did not reflect agencies had been notified of expunction hearing and because court violated thirty-day waiting period).

         Here, the record shows that DPS never received notice of the expunction hearing by any of the avenues set forth in the statute. Moreover, there is nothing in the record to reflect that DPS waived the notice requirement. It was therefore error for the trial court to grant Butler's petition for expunction without providing notice to DPS of the hearing. Thus, error is apparent on the face of the record because the record does not reflect that any agency, including DPS, received notice of the expunction hearing. The violation of this mandatory statutory requirement requires us to set aside the trial court's nunc pro tunc order of expunction.

         Because we sustain DPS' first point of error, [3] we reverse the judgment of the trial court and set aside the ...


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