Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 139th District Court of Hidalgo County,
Chief Justice Contreras and Justices Benavides and Longoria
L. LONGORIA, JUSTICE
the Texas Department of Public Safety (the Department),
argues on appeal that the trial court erred by granting
appellee Manuel Alfaro's petition for expunction. We
reverse and render.
was arrested on December 20, 2009, and later charged with
possession of a controlled substance (cocaine), a state jail
felony, possession of marijuana, a class B misdemeanor, and
possession of a prohibited weapon (switchblade/knuckles), a
class A misdemeanor. See Tex. Health & Safety
Code Ann. §§ 481.115, 481.121; Tex. Penal Code Ann.
§ 46.05(a)(2). Pursuant to a plea agreement, the
possession of marijuana and possession of a prohibited weapon
charges were dismissed, and Alfaro pleaded guilty to the
possession of a controlled substance charge. The trial court
sentenced Alfaro to deferred adjudication community
supervision for a period of five years.
March 6, 2018, Alfaro filed a petition to expunge the records
of the dismissed misdemeanor offenses arising out of the
December 20, 2009 arrest. The Department filed an answer
denying that he was entitled to an expunction of the
misdemeanor arrest records because Alfaro served a term of
community supervision for the possession of a controlled
substance charge out of that same arrest. On June 19, 2018,
the trial court signed an order granting expunging the
records of the dismissed offenses. The Department appealed.
Standard of Review
appeals are governed by Rule 30 of the Texas Rules of
Appellate Procedure. See Tex. R. App. P. 30. When a
party does not participate in person or through counsel in a
hearing that results in a judgment, that party may be
eligible for a restricted appeal. See id. When
addressing a restricted appeal, our review is limited to the
face of the record. Ex parte Vega, 510 S.W.3d 544,
547 (Tex. App.-Corpus Christi- Edinburg 2016, no pet.). For
these purposes, the "face of the record" consists
of all papers that were before the trial court at the time it
rendered judgment. Id.
sustain a restricted appeal, the filing party must prove: (1)
the party filed notice of the restricted appeal within six
months after the judgment was signed; (2) the party was a
party to the underlying lawsuit; (3) the party 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 from the fact of the record.
Tex.R.App.P. 26.1(c), 30; Pike-Grant v. Grant, 447
S.W.3d 884, 886 (Tex. 2014) (per curiam); Alexander v.
Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
Applicable Law and Discussion
order to be entitled to a restricted appeal, the Department
must meet the criteria related to a restricted appeal. We
agree that the Department filed a notice of restricted appeal
within six months of the judgment and that it was a party to
the underlying lawsuit, thereby meeting the first two prongs
required. The third prong requires the Department to show it
did not participate in the hearing, file any post-judgment
motions, or request findings from the trial court. See
Pike-Grant, 447 S.W.3d at 886.
required to liberally construe the non-participation
requirement for restricted appeals in favor of the right to
appeal. Pike-Grant, 447 S.W.3d at 886; Stubbs v.
Stubbs, 685 S.W.2d 643, 644-45 (Tex. 1985). The question
is whether the appellant participated in the decision-making
event that resulted in the judgment or adjudication of the
appellant's rights. Stubbs, 685 S.W.2d at 644;
In re B.H.B., 336 S.W.3d 303, 305 (Tex. App.-San
Antonio 2010, pet. denied). A restricted appeal is not an
equitable proceeding. Texaco, Inc. v. Central Power &
Light Co., 925 S.W.2d 586, 590 (Tex. 1996). An appellant
[in a restricted appeal] "is not required to show
diligence or lack of negligence before its complaints will be
heard . . . [because] it is the fact of nonparticipation, not
the reason for it, that determines the right to [a restricted
appeal]." Id.; see In re Marriage of
Butts, 444 S.W.3d 147, 152 (Tex. App.-Houston [14th
Dist.] 2014, no pet.); Midstate Envtl. Servs., LP v.
Peterson, 435 S.W.3d 287, 291 (Tex. App.-Waco 2014, no