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Texas Department of Public Safety v. J.A.G.

Court of Appeals of Texas, Ninth District, Beaumont

January 9, 2020

J.A.G. JR., Appellee

          Submitted on July 15, 2019

          On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 18-07-08443-CV

          Before McKeithen, C.J., Kreger and Johnson, JJ.



         The Texas Department of Public Safety (the DPS or Appellant) brings this restricted appeal from an order expunging J.A.G. Jr.'s (Appellee or Petitioner) criminal records related to a charge of misdemeanor driving while intoxicated in Montgomery County. The DPS asserts that (1) legally insufficient evidence supports the expunction order; (2) the trial court misinterpreted the expunction statute to allow records of the arrest be destroyed as Appellee was convicted as a result of his arrest; (3) the trial court erred in ordering an expunction without holding a hearing; and (4) if a hearing was held, no reporter's record was made of the hearing. Appellee did not file a brief. We sustain Appellant's fourth issue and reverse the trial court's order based on the absence of a reporter's record.

         On May 16, 2008, Appellee was arrested in cause number 08-240219 for misdemeanor driving while intoxicated. On June 29, 2018, Appellee filed a petition to expunge the records relating to his arrest because the charge had been dismissed, and he requested that the entities that he believed had records subject to expunction be served with notice of the petition: (1) Montgomery County Sheriff's Department, (2) Montgomery County District Attorney's Office, (3) Montgomery County District Clerk's Office, (4) Montgomery County Clerk's Office, (5) Federal Bureau of Investigation, (6) Texas Department of Public Safety, (7) Montgomery County Bond, and (8) the Conroe Police Department.

         In the clerk's record there is an Order Setting Hearing by Submission Petition for Expunction, signed by the trial court judge on July 2, 2018, and ordering the petition "set for hearing by submission on September 07, 2018, at 9:00[ ]am." A July 17, 2018 letter from the Montgomery County District Clerk appears in the record, and it is addressed to multiple entities with attached copies of the petition, notice of submission and hearing date/time, and proposed expunction order.[1]

         On August 28, 2018, the DPS filed its original answer and general denial and asserted that Appellee "is barred from expunging records of the Petitioner's arrest on May 16, 2008, for the Class B misdemeanor offense of Driving While Intoxicated because the Petitioner was convicted as a result of this arrest." The DPS attached to its answer a copy of the complaint and information in cause number 08-240219, a copy of a motion to dismiss in cause number 08-240219, and copies of the complaint, information, and judgment in cause number 09-248724. According to the DPS,

[h]ere, the Petitioner was not acquitted or pardoned for an unrelated charge; rather Petitioner chose to plead guilty to Driving with Invalid License which resulted in a final conviction. Since the Petitioner was convicted for a misdemeanor charge based on the same arrest, the Petitioner is not entitled to an expunction of any charges stemming from that arrest.

         On September 17, 2018, the trial court signed what it styled as an "Agreed Order of Expunction" reciting that "[o]n this date came on to be heard the petition for expunction filed" and that "[h]aving considered the pleadings and other documents on file[]" and ordering the entities named in the expunction petition to return all records and files about Appellee's arrest in cause number 08-240219 to the trial court, or if not practical, to destroy such records or files.[2] In accordance with the expunction order, the district clerk in a letter dated October 22, 2018, notified the parties of the signed expunction order and delivered through email a copy of the order to the entities listed in the order. There is an email delivery confirmation receipt in the clerk's record for the email from the district clerk's office to the DPS notifying the DPS of the final expunction order.

         On March 15, 2019, the DPS filed its notice of restricted appeal. On appeal, the official court reporter stated in a letter to this Court that there was "no oral [hearing] regarding the above matter; therefore, there is no Reporter's Record in the above-mentioned cause to be filed."

         We review a trial court's ruling on a petition for expunction under an abuse of discretion standard. Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.-Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). Expunction is neither a constitutional nor a common-law right, but a statutory privilege. In re D.W.H., 458 S.W.3d 99, 104 (Tex. App.-El Paso 2014, no pet.). A statutory expunction proceeding is a civil rather than a criminal proceeding, and the petitioner has the burden of proving that he has complied with the requirements of the expunction statute. Collin Cty. Criminal Dist. Attorney's Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.-Dallas 2005, no pet.); Houston Police Dep't v. Berkowitz, 95 S.W.3d 457, 460 (Tex. App.-Houston [1st Dist.] 2002, pet. denied).

         To attack an order by restricted appeal, the appealing party must show: (1) he filed a notice of restricted appeal within six months after the judgment or complained-of order was signed, (2) he was a party to the underlying lawsuit, (3) he did not participate either in person or through counsel in the hearing that resulted in the judgment or complained-of order and did not timely file any post-judgment motions or requests for findings of fact or 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); see also Tex. R. App. P. 26.1(c), 30.

         The trial court signed the expunction order on September 17, 2018. The DPS filed its notice of restricted appeal on March 15, 2019, within the six-month deadline set by Rule 26.1(c). See Tex. R. App. P. 26.1(c). The DPS was a party entitled to appeal the expunction order. See Tex. Code Crim. Proc. Ann. art. 55.02, ยง 3(a) (An agency protesting an expunction order may appeal the judge's decision in the same manner as in other civil cases.). The DPS was named in the expunction order as an agency or entity that might have records or files subject to expunction, there is no indication that the DPS participated in any hearing that resulted in the expunction order, ...

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