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Texas Department of Public Safety v. Alfaro

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 8, 2019

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,
v.
MANUEL ALFARO, Appellee.

          On appeal from the 139th District Court of Hidalgo County, Texas.

          Before Chief Justice Contreras and Justices Benavides and Longoria

          MEMORANDUM OPINION

          NORA L. LONGORIA, JUSTICE

         Appellant, 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.

         I. Background

         Alfaro 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.

         On 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.

         II. Restricted Appeal

         A. Standard of Review

         Restricted 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.

         To 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).

         B. Applicable Law and Discussion

         In 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.

         We are 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 ...


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