Court of Appeals of Texas, Ninth District, Beaumont
Submitted on July 15, 2019
Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 18-07-08443-CV
McKeithen, C.J., Kreger and Johnson, JJ.
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
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.
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
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.
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. 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.
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
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).
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.
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, § 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, ...