Appeal from the 207th District Court Hays County, Texas Trial
Court Cause No. 16-1887
consists of Justices Christopher, Bourliot, and Spain.
FRANCES BOURLIOT, JUSTICE
Texas Department of Public Safety appeals from the trial
court's order expunging records and files relating to a
misdemeanor theft charge against T.R.W. The trial court's
expunction order addresses multiple charges stemming from two
different dates-October 31, 2011 and January 2, 2012-but DPS
only challenges the expunction of the theft charge filed on
the latter date.
regards to the January 2, 2012 theft charge, DPS contends in
two issues that (1) the trial court misinterpreted the
expunction statute and (2) the expunction ruling was not
supported by legally sufficient evidence. Because T.R.W. did
not present evidence establishing her entitlement to
expunction of the January 2, 2012 theft charge, we modify the
trial court's expunction order to remove the language
ordering expunction of records and files pertaining to that
charge. We affirm the order as modified.
case was transferred to this court from the Third Court of
Appeals by a Texas Supreme Court transfer order. We must
therefore decide the case in accordance with the precedent of
the Third Court of Appeals if our decisions otherwise would
have been inconsistent with that court's precedent.
See Tex. R. App. P. 41.3.
was arrested on January 2, 2012 and charged with both
misdemeanor theft and misdemeanor possession of a controlled
substance. Both offenses were also alleged to have occurred
on January 2, 2012, but the record does not contain any other
details concerning the circumstances involved. T.R.W. and the
State thereafter entered a plea agreement. Pursuant to this
agreement, T.R.W. entered a Pre-Trial Intervention Program
(PTI) in regards to the theft charge. She further pleaded no
contest to the possession charge and was sentenced to
deferred adjudication. Under the terms of her deferred
adjudication, T.R.W. was sentenced to two years of community
T.R.W. successfully completed the terms of her PTI, the theft
charge was dismissed. After she completed the terms of her
deferred adjudication, the possession charge was likewise
dismissed. On September 12, 2016, T.R.W. requested an order
of nondisclosure under Texas Government Code chapter 411,
subchapter E-1 regarding records pertaining to the possession
charge. This request was granted on October 19, 2016. T.R.W.
also filed her petition for expunction on September 12, 2016,
requesting expunction of records and files pertaining to her
theft charge pursuant to Texas Code of Criminal Procedure
filed an answer asserting principally that because T.R.W.
received community supervision for the possession charge
stemming from the same arrest, she was not entitled to have
records expunged relating to the theft offense under article
55.01(a)(2). Despite notice, however, DPS failed to appear
for the hearing on the petition for expunction.
hearing, T.R.W.'s counsel addressed the community
supervision issue raised by DPS by asserting that because the
records relating to the possession charge were subject to a
nondisclosure order, DPS could not rely on the possession
charge to contest expunction of the theft charge. Counsel
additionally argued that DPS (as a representative of the
State) was estopped from contesting expunction of the theft
charge because the PTI documents relating to that charge
stated T.R.W. could get records relating to the charge
expunged upon successful completion of the terms of the PTI.
the hearing, an assistant district attorney from the Hays
County District Attorney's Office appeared and pointed
out that someone from that office had signed the proposed
expunction order as "Approved." The assistant
district attorney also indicated that the district
attorney's office was not challenging T.R.W.'s
entitlement to expunction. At the conclusion of the hearing,
the trial court ordered that the records pertaining to
T.R.W.'s theft charge be expunged.
brings this restricted appeal. In its first issue, DPS
asserts that the trial court misinterpreted the statute in
ordering expunction, arguing that because T.R.W. received
community supervision for one offense stemming from her
January 2, 2012 arrest, her records cannot be expunged for
any offense stemming from that arrest. In its second issue,
DPS asserts that the evidence was legally insufficient to
establish T.R.W.'s entitlement to expunction of the
records pertaining to the theft offense.
restricted appeal, the appellant must demonstrate that: (1)
it filed notice of the 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 post-judgment motions or requests for findings of
fact and conclusions of law, and (4) error is apparent on the
face of the record. Pike-Grant v. Grant, 447 S.W.3d
884, 886 (Tex. 2014). It is undisputed in this case that DPS
has satisfied the first three requirements for a successful
restricted appeal. The absence of legally sufficient evidence
to support a judgment is reviewable in a restricted appeal as
error apparent on the face of the record. Norman
Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997); Arbogust v. Graham, No. 03-17-00800-CV,
2018 WL 3150996, at *1 (Tex. App.-Austin June 28, 2018, no
pet.) (mem. op.).
contends that the trial court misinterpreted the requirements
of the statute and that the evidence presented at the
expunction hearing was legally insufficient to support the
order. We review the trial court's interpretation of a
statute de novo. See Johnson v. City of Fort Worth,
774 S.W.2d 653, 655-56 (Tex. 1989). In doing so, our primary
objective is to effectuate the legislature's intent.
City of Rockwall v. Hughes, 246 S.W.3d 621, 625
(Tex. 2008). We ascertain intent by first looking to the
plain and common meaning of the words used in the statute.
Id. at 625-26. We rely on the plain meaning of the
text, unless a different meaning is supplied by legislative
definition or is apparent from the context, or unless such a
construction would lead to absurd results. Id.;
see also Tex. Gov't Code § 311.011. We view
terms in context to give them full effect. State v.
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). And, we
presume that the legislature intended a just and reasonable
result. City of Rockwall, 246 S.W.3d at 626.
deciding whether the trial court abused its discretion in
making an expunction determination, we consider whether the
trial court's ruling is supported by the evidence. Ex
parte Brown, No. 14-17-00695-CV, 2018 WL 3977174, at *2
(Tex. App.-Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem.
op.) (citing Tex. Dep't of Pub. Safety v.
G.B.E., 459 S.W.3d 622, 624 (Tex. App.-Austin 2014, pet.
denied) (en banc)). When reviewing for legal sufficiency, we
consider the evidence in the light most favorable to the
trial court's finding and indulge every reasonable
inference that supports the challenged finding. City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We
credit favorable evidence if a reasonable factfinder could
and disregard contrary evidence unless a reasonable
factfinder could not. Id. at 827. We will sustain a
legal sufficiency challenge if the record reveals: (1) a
complete absence of evidence of a vital fact; (2) the court
is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact; (3) the
evidence offered to prove a vital fact is no more than a mere
scintilla; or (4) the evidence establishes conclusively the
opposite of the vital fact. Id. at 810;
G.B.E., 459 S.W.3d at 624.
remedy of expunction allows a person who has been arrested to
have all records and files relating to the arrest removed
from the State's records if she meets the statutory
requirements set out in the expunction statute, chapter 55 of
the Texas Code of Criminal Procedure. Tex. Code Crim. Proc.
arts. 55.01-.06; Tex. Dep't of Pub. Safety v.
Nail, 305 S.W.3d 673, 674 (Tex. App.-Austin 2010, no
pet.). Expunction is not a right but a statutory privilege,
and the petitioner bears the burden of proving that each of
the required conditions have been met. G.B.E., 459
S.W.3d at 625. To carry this burden, the petitioner must
provide more than mere allegations in a verified pleading.
Tex. Dep't of Pub. Safety v. J.W.M., No.
03-17-00792-CV, 2018 WL 6519696, at *3 (Tex. App.-Austin Dec.
12, 2018, no pet.) (mem. op.). A trial court must strictly
comply with the statutory requirements and has no equitable
power to expand the remedy's availability beyond what the
legislature has provided. Nail, 305 S.W.3d at 675.
expunction statute identifies several different circumstances
under which expunction is permitted, including acquittal,
pardon, on recommendation by a prosecutor, and when charges
are dismissed. Tex. Code Crim. Proc. art. 55.01; see also
State v. T.S.N., 547 S.W.3d 617, 623 (Tex. 2018)
("Different parts of the article, including the
expunction requirements, address different factual situations
. . . ."). Each potential avenue has requirements that
must be satisfied before expunction may be ordered. See
id. at 620 ("A person is not entitled to expunction
until all of the statutory conditions are met."). As
mentioned, T.R.W. sought expunction specifically pursuant to
article 55.01(a)(2), which at the time she filed her petition
provided in full:
(a) A person who has been placed under a custodial or
noncustodial arrest for commission of either a felony or
misdemeanor is entitled to have all records and ...