Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 24, 2019
Appeal from the 6th District Court Red River County, Texas
Trial Court No. CV04386
Morriss, C.J., Burgess and Stevens, JJ.
R. Morriss, III Chief Justice
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.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
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.).
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.
clerk's record shows that DPS timely brought its
restricted appeal,  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).
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.
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
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
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
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.
we sustain DPS' first point of error,  we reverse the
judgment of the trial court and set aside the ...