Tex. Dep't of Pub. Safety v. S. A. M., 14-18-00269-CV

• Decision Date: 11 July 2019
• Docket Number: NO. 14-18-00269-CV,14-18-00269-CV
• Court: Texas Court of Appeals
• Parties: TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant v. S. A. M., Appellee

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant v. S. A. M., Appellee

NO. 14-18-00269-CV

State of Texas in the Fourteenth Court of Appeals

July 11, 2019

On Appeal from the 51st District Court Tom Green County, Texas

Trial Court Cause No. A150480C

MEMORANDUM OPINION

This appeal is brought by the Texas Department of Public Safety (the "Department") complaining of the trial court's order granting S.A.M.'s ("Sam") petition for expunction.¹ We reverse and render in part and affirm in part.

FACTUAL AND PROCEDURAL BACKGROUND

Sam filed a petition to expunge two arrests pursuant to Chapter 55 of the Texas Code of Criminal Procedure. According to Sam's petition, the first arrest occurred on August 29, 1987, for the offense of criminal mischief, a Class A misdemeanor. Sam alleged it was dismissed on April 12, 1988. The second arrest took place on February 12, 1988, for indecent exposure, a misdemeanor. Regarding that arrest, Sam stated he "believes charge was dismissed by the County Attorney of Tom Green County, Texas." Sam stated that he was entitled to expunction of both arrests on the grounds:

1. Petitioner has been released from custody on these charges and the charges have not resulted in a final conviction.

Further, Petitioner is not under the supervision of any court pursuant to Article 42.12, Code of Criminal Procedure.

2. Petitioner has not been convicted of a felony in the five (5) years preceding the date of the arrest.

The Department filed an answer on February 5, 2016, arguing Sam was not entitled to expunction for either arrest.

The trial court conducted a hearing on November 20, 2017. Sam testified that he was arrested on August 29, 1987, for the Class A misdemeanor of criminal mischief and that charge was dismissed in April of 1988. Further, Sam testified that he was arrested on February 12, 1988, for indecent exposure, a misdemeanor. According to Sam:

• he never went to court on that case;

• he did not plead guilty to that offense;

• it was his belief that it was dismissed by the County Attorney of Tom Green County;• the Tom Green County Attorney had "signed off" on a proposed order of expunction; and

• he had never been convicted of a felony.

The evidence in the record before this court reflects a complaint was filed alleging that on or about March 20, 1987, Sam intentionally and knowingly caused bodily injury to T.H. by hitting T.H.'s face with Sam's fist. The "Assault, Class A" was assigned trial court cause number 75728. Capias issued September 8, 1987, was returned September 24, 1987, and bond was set at $500.

On April 12, 1988, Sam entered a plea of "guilty or no contest" to that offense and an order of deferred adjudication and probation for a period of twelve months was entered. The "Probation Personal Data Form " signed by Sam that same day has two cause numbers—75728 and 75729. A form for "Recommendations to County Court-at-Law Judge" also reflects two offenses—assault class A and criminal mischief class A—and two cause numbers—75728 and 75729—and probation for twelve months, deferred, on a plea of "no contest." A motion to dismiss trial court cause number 75729 was granted the same day—April 12, 1988.

On April 10, 1989, a motion to revoke misdemeanor probation in trial court cause number 75728 was filed. The motion states that on April 12, 1988, Sam was placed on deferred adjudication probation for one year for the offense of assault, class A. On April 11, 1989, an order for Sam's arrest in trial court cause number 75728 was entered. Capias issued April 14, 1989. On April 5, 1995, the motion to revoke was dismissed on the grounds the period of probation had expired.

The trial court's order concluded Sam was entitled to expunction and ordered all records expunged concerning:

• "the arrest for a Class A Misdemeanor for Criminal Mischief on August 29, 1987 which was dismissed by the County Attorney on April 12, 1988;" and

• "[T]he charge of Indecent Exposure on February 12, 1988 which Petitioner believes was dismissed by the County Attorney."

From that order, the Department perfected this restricted appeal. See Tex. R. App. P. 26.1, 30.²

RESTRICTED APPEAL

To prevail on a restricted appeal, the Department must establish: (1) within six months after judgment was signed, it filed notice of the restricted appeal; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the complained-of order nor did it 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. Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

Standard of Review for a Restricted Appeal

Our review of a restricted appeal is limited to the face of the record, which consists of all the papers that were before the trial court at the time it entered its order. See Bahar v. Lyon Fin. Servs., Inc., 330 S.W.3d 379, 384 (Tex. App.—Austin 2010, pet. denied). The requirement that error be apparent on the face of the record means that "error that is merely inferred [from the record] will not suffice." Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam). Within this limitation, our scope of review is otherwise the same as in an ordinary appeal. See Texas Dep't ofPub. Safety v. J.W.D., No. 03-14-00101-CV, 2014 WL 7464229, at *2 (Tex. App.—Austin Dec. 31, 2014, pet. denied) (mem. op.).

The First Three Elements

As to the first element, the record reflects that the trial court signed the order of expunction on November 20, 2017, and the Department filed its notice of appeal on March 7, 2018. Thus, the Department filed its notice of appeal in this case within the six-month deadline. See Tex. R. App. P. 30; Alexander, 134 S.W.3d at 848.

Regarding the second element, Sam's ex parte petition named the Department as a state agency with records subject to expunction. See Tex. Code Crim. Proc. art. 55.02, §§ 2(a) (providing that a person entitled to expunction under article 55.01(a)(2) may file an ex parte petition), 2(b)(8) (requiring an expunction petition to include the addresses of "law enforcement agencies" or "central state depositories of criminal records" that the petitioner believes might have records subject to expunction). The Department—and all agencies with records subject to expunction—have the right to be represented by counsel at the expunction hearing. See id. art. 55.02, § 2(c-1). Also, an agency subject to an expunction order may appeal the court's judgment "in the same manner as in other civil cases." Id. art. 55.02, § 3(a). Accordingly, the Department is a party within the meaning of the second requirement for a restricted appeal. See Travis Cty. Attorney v. L.C., No. 03-13-00702-CV, 2015 WL 2376060, at *2 (Tex. App.—Austin May 12, 2015, no pet.) (mem. op.).

The third element is whether the Department participated "in the decision-making event" which resulted in the order. See Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996). We liberally construe this requirement in favor of the right to appeal. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam). We conclude the Department meets this requirement because eventhough it filed an answer in response to Sam's petition, it did not participate in the hearing on his petition that resulted in the expunction order. See J.W.D., 2014 WL at *1 (holding the Department met the nonparticipation requirement when it filed an answer asserting an affirmative defense but did not participate in person or through counsel in the expunction hearing).

Having concluded the Department meets the first three requirements, we turn to the fourth.

Is Error Apparent on the Face of the Record?

We review a trial court's ruling on a petition for expunction for an abuse of discretion. Texas Dep't of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—Austin 2014, pet. denied). Because this is a restricted appeal, our review is limited to determining whether an abuse of discretion is apparent on the face of the record. See Alexander, 134 S.W.3d at 848. A trial court abuses its discretion when it renders a decision that is (1) arbitrary, unreasonable, or without reference to guiding rules or principles, or (2) without supporting evidence. G.B.E., 459 S.W.3d at 624.

The remedy of expunction permits a person who has been arrested for the commission of a criminal offense and released, and who meets certain other conditions, to have all records and files relating to that arrest removed from the government's records. G.B.E., 459 S.W.3d at 625. Although the statute is codified in the Texas Code of Criminal Procedure, an expunction proceeding is civil in nature. Travis Cty. Dist. Atty. v. M.M., 354 S.W.3d 920, 923 (Tex. App.—Austin 2011, no pet.). As in other civil proceedings, it is the petitioner's burden to show that all the statutory conditions have been met. Id. And because expunction is not a right but a statutory privilege, each of the statutory conditions for expunction is mandatory and exclusive. T.L.B., Jr. v. Texas Dep't of Pub. Safety, No. 03-10-00196-CV, 2011 WL 182889, at *2 (Tex. App.—Austin Jan. 20, 2011, no pet.). It is an abuse of discretionfor the trial court to order expunction when the statutory conditions have not been met because the court "has no power to extend equitable relief beyond the clear meaning of the expunction statute." G.B.E., 459 S.W.3d at 625.

To prove he was entitled to expunction, Sam was required to demonstrate the arrests satisfied the following conditions:

(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 files relating to the arrest expunged if:

. . .

(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a

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