NUMBER 13-17-00377-CV

                                  COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                                      Appellant,

                                                   v.

C.B.,                                                                                   Appellee.


                    On appeal from the Criminal District Court
                          of Jefferson County, Texas.


                              MEMORANDUM OPINION

             Before Justices Rodriguez, Benavides, and Longoria
                 Memorandum Opinion by Justice Rodriguez

        In this restricted appeal, appellant Texas Department of Public Safety (D.P.S.)

challenges the order of expunction that the trial court granted in favor of appellee C.B.

By four issues, D.P.S. challenges the order granting expunction. We affirm.1


        1 This cause is before the Court on transfer from the Ninth Court of Appeals in Beaumont pursuant
to an order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001 (West, Westlaw
                                      I.      BACKGROUND

       On March 27, 2014, a Jefferson County grand jury returned an indictment against

C.B. The indictment alleged that in December 2013, C.B. was arrested for possession

of a controlled substance in penalty group 2—amphetamine—in an amount less than 1

gram, a state jail felony.      See TEX. HEALTH & SAFETY CODE ANN. § 481.116 (West,

Westlaw through 2017 1st C.S.).

       On November 4, 2014, a Jefferson County assistant district attorney filed a motion

to dismiss the case against C.B. in the interest of justice. The trial court granted the

motion on the same day.

       On October 27, 2016, C.B. filed a petition seeking the expunction of records related

to his arrest in December 2013. C.B. alleged that he satisfied all relevant conditions of

the expunction statute, in large part because the charge against him had been dismissed.

Attached to C.B.’s petition was the order of dismissal.             The petition named several

government entities possessing records subject to expunction, including the Jefferson

County district attorney’s office and D.P.S.

       The district attorney filed a response indicating that “the State of Texas does not

oppose the Petition for Expunction and prays the Court to enter an appropriate order after

due consideration.” However, D.P.S. filed an answer and general denial. In it, D.P.S.

asserted that C.B. was, in fact, charged with two offenses as a result of his 2013 arrest:

the felony charge for possession of amphetamine and a second charge for possession of

marijuana in an amount less than two ounces, a class B misdemeanor.                         See id.


through 2017 1st C.S.). Because this is a transfer case, we apply the precedent of the Ninth Court of
Appeals to the extent it differs from our own. See TEX. R. APP. P. 41.3.
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§ 481.121(a), (b)(1) (West, Westlaw through 2017 1st C.S.). D.P.S. alleged that C.B.

pleaded nolo contendere to the marijuana charge and was sentenced to six months’

deferred adjudication community supervision, rendering him ineligible to have any records

related to the 2013 arrest expunged.

      A hearing was set for December 5, 2016. The notice of hearing reflects that it

was served upon the district attorney’s office, D.P.S., and other government entities.

D.P.S. did not appear, and no record was taken of the hearing.

      On December 6, 2016, the trial court entered an order granting C.B.’s petition and

providing for expunction of all records related to C.B.’s 2013 arrest. The order stated

that “all procedural and substantive requirements for expunction of the criminal records,

specified herein, have been met.” In particular, the order stated that while C.B. was

indicted for felony possession of amphetamine as a result of the arrest, “this matter was

not prosecuted against Petitioner for the stated charges alleged and was dismissed by

Order of the Court on November 4, 2014.”

      Following the order of expunction, D.P.S. filed this restricted appeal.     D.P.S.

submitted C.B.’s 2013 arrest report, which described his arrest for possession of

amphetamine and marijuana. D.P.S. also submitted documentation which, it contended,

showed that C.B. had pleaded guilty and received community supervision for a

misdemeanor marijuana charge stemming from his arrest in 2013, and that C.B. was

therefore ineligible for expunction of records from the 2013 arrest.      However, the

documentation submitted by D.P.S. described an arrest for marijuana possession in

September 2010, and it bore no apparent relation to C.B.’s 2013 arrest. Other than


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D.P.S.’s assertions, the record contains no indication that C.B. was ever formally charged

with, convicted of, or placed on community supervision for the offense of misdemeanor

marijuana possession as a result of his 2013 arrest.

             II.    THE FIRST THREE REQUIREMENTS OF A RESTRICTED APPEAL

       An appellant must establish four elements to succeed in a restricted appeal: (1)

it filed notice of the restricted 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) (per curiam). We

liberally construe the non-participation requirement in favor of the right to appeal. Id.

       As to the first requirement, D.P.S. filed its notice of appeal within six months of the

judgment: the district court signed the judgment on December 5, 2016, and D.P.S. filed

its notice of restricted appeal on June 5, 2017. See id.

       As to the second requirement, D.P.S. is a proper party to this suit. See id. C.B.

listed D.P.S. as an entity potentially having records that he sought expunged, and D.P.S.

was made subject to the expunction order, which provided D.P.S. with the right to appeal

the court’s judgment “in the same manner as in other civil cases.” See Ex parte Vega,

510 S.W.3d 544, 547 (Tex. App.—Corpus Christi 2016, no pet.).

       As to the third requirement, a review of the record confirms that D.P.S. did not file

any post-judgment motions or requests for findings of fact and conclusions of law. See

Pike-Grant, 447 S.W.3d at 886. Even though D.P.S. “filed an answer in response to


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[appellee’s] petition, it did not participate in the hearing on his petition that resulted in the

expunction order.”       See Vega, 510 S.W.3d at 548.               “Filing an answer . . . is not

participation” for purposes of a restricted appeal. See Stubbs v. Stubbs, 685 S.W.2d
643, 645 (Tex. 1985).2

        With the first three requirements satisfied, we turn to the fourth requirement:

whether error appears on the face of the record. See Pike-Grant, 447 S.W.3d at 886.

          III.    THE FOURTH REQUIREMENT: ERROR ON THE FACE OF THE RECORD

        By its first and second issues, D.P.S. argues that error is apparent on the face of

the record because the trial court misinterpreted the expunction statute by allowing an

ineligible petitioner to receive expunction, and because the expunction is not supported

by legally sufficient evidence of eligibility. These issues both advance the same theory—

that C.B. is not eligible for expunction—and we address them together.

A.      Standard of Review

        We review a trial court’s ruling on a petition for expunction for an abuse of

discretion. Vega, 510 S.W.3d at 548. To the extent the court’s ruling on an expunction

petition turns on a question of law, we review that ruling de novo. Id. In the absence of

findings of fact or conclusions of law, a trial court’s judgment will be upheld on any theory

supported by the record, and any necessary findings of fact will be implied. Rosemond

v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011) (per curiam).




         2 We hear this case on transfer from the Ninth Court of Appeals in Beaumont, which has held that

the district attorney’s agreement in an expunction proceeding does not bind D.P.S. or preclude D.P.S. from
challenging an expunction on appeal. See Tex. Dep’t of Pub. Safety v. M.R.S., 468 S.W.3d 553, 556 (Tex.
App.—Beaumont 2015, no pet.). This precedent controls our analysis here. See TEX. R. APP. P. 41.3.
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       A trial court abuses its discretion when it rules arbitrarily, unreasonably, without

regard to guiding legal principles, or without supporting evidence. Bocquet v. Herring,

972 S.W.2d 19, 21 (Tex. 1998). In an abuse of discretion analysis, sufficiency of the

evidence is not an independent ground of error, but rather is a relevant factor in assessing

whether the trial court abused its discretion. Handley v. Handley, 122 S.W.3d 904, 907

(Tex. App.—Corpus Christi 2003, no pet.). There is generally no abuse of discretion on

grounds of insufficiency if some probative evidence supports the trial court’s decision. In

re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding).

        Because this is a restricted appeal, our review is limited to the face of the record.

Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam). The “face of the

record” includes all papers on file in the appeal and the reporter’s record, if any. See

Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam);

see also Tex. Dep’t of Pub. Safety v. Salazar, No. 13-12-00771-CV, 2013 WL 4399185,

at *2 (Tex. App.—Corpus Christi Aug. 15, 2013, no pet.) (mem. op.). The requirement

that error be apparent on the face of the record means that “error that is merely inferred

will not suffice.” Ginn, 282 S.W.3d at 431. With this limitation, our scope of review is

otherwise the same as in an ordinary appeal. Vega, 510 S.W.3d at 547.

B.     Applicable Law

       Although the expunction statute is in the Texas Code of Criminal Procedure,

expunction proceedings are civil rather than criminal in nature. Tex. Dep’t of Pub. Safety

v. M.R.S., 468 S.W.3d 553, 556 (Tex. App.—Beaumont 2015, no pet.). Upon fulfillment

of certain statutory requirements, all criminal records arising from an arrest must be

expunged. Vega, 510 S.W.3d at 548. To establish his right to expunction under the
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statutory article at issue here, the petitioner must prove that he “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 for the offense,” among other conditions.

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (West, Westlaw through 2017 1st C.S.).

Where an indictment has been presented against the petitioner, the petitioner must show,

in addition to the above, that the indictment “was dismissed or quashed because . . . the

presentment had been made because of mistake, false information, or other similar

reason indicating absence of probable cause at the time of the dismissal to believe the

person committed the offense . . . .” Id. art. 55.01(a)(2)(A)(ii)(c).

       Expunction is only available when all the statutory conditions have been met, which

the petitioner has the burden of proving. Tex. Dep’t of Pub. Safety v. Williams, 76 S.W.3d
647, 650 (Tex. App.—Corpus Christi 2002, no pet.). Courts have no equitable power to

extend the expunction statute. Id. And because expunction is not a right but a statutory

privilege, each of the statutory conditions for expunction is mandatory and exclusive.

Vega, 510 S.W.3d at 548.

       Section (a)(2) of the expunction statute treats an arrest as the unit of expunction

and provides relief relating to arrests rather than charges. Id. at 551. Because this

section is arrest-based, a petitioner is not entitled to have the records related to his arrest

expunged under article 55.01(a)(2) unless all of the charges that arose from the arrest

are shown to satisfy article 55’s requirements. M.R.S., 468 S.W.3d at 556. Thus, if a

petitioner is convicted or placed on community supervision for one charge arising out of

an arrest, the petitioner is ineligible to expunge records related another charge stemming


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from the same arrest under section 55.01(a)(2). See id.; Vega, 510 S.W.3d at 551; see

also Ex parte J.C.D., No. 13-16-00534-CV, 2017 WL 3304478, at *2 (Tex. App.—Corpus

Christi Aug. 3, 2017, no pet.) (mem. op.).

C.     Analysis

       D.P.S. argues that C.B. was not entitled to expunction because he presented

nothing to demonstrate his eligibility. We disagree.

       The record supports the existence of only one formal charge stemming from C.B.’s

2013 arrest: a felony indictment for possession of amphetamine. See TEX. HEALTH &

SAFETY CODE ANN. § 481.116. C.B. submitted records showing that this felony charge

was dismissed. Following the hearing, the trial court entered a finding that this dismissal

satisfied all requirements for expunction of criminal records. The trial court therefore

impliedly found that this dismissal was due to “mistake, false information, or other similar

reason indicating the absence of probable cause,” pursuant to the expunction statute.

See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A)(ii)(c); Rosemond, 331 S.W.3d at 766.

The records submitted by D.P.S. describing an arrest for misdemeanor possession of

marijuana in 2010 were unrelated to the 2013 arrest that was the subject of the trial court’s

expunction order.    Because felony possession was the only charge stemming from

C.B.’s arrest that appears on the face of the record, the requirements of the expunction

statute were satisfied.

       Based on C.B.’s exhibit, the trial court found that he had satisfied the requirements

of the expunction statute with regard to the only charge that appears in the record. The

face of the record supports the trial court’s decision, see Barber, 982 S.W.2d at 366, and


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D.P.S.’s submission concerning an unrelated arrest in 2010 does nothing to demonstrate

that the trial court’s finding was arbitrary. See Bocquet, 972 S.W.2d at 21.

       Accordingly, we overrule D.P.S.’s first and second issues.

                         IV.     ABSENCE OF REPORTER’S RECORD

       By its third issue, D.P.S. objects to the trial court’s failure to hold a hearing.

However, the record reveals that the trial court sent D.P.S. a formal notice that the

expunction hearing was set for December 5, 2016. See TEX. CODE CRIM. PROC. ANN. art.

55.02 § 2(c) West, Westlaw through 2017 1st C.S.). On December 6, 2016 the trial court

entered its order reciting that C.B. “came to be heard” on his petition for expunction. We

overrule D.P.S.’s third issue.

       By its fourth issue, D.P.S. asserts that the trial court reversibly erred by not

ensuring that a reporter’s record was taken concerning evidence received at the

expunction hearing. D.P.S. urges us to apply a line of cases which hold that, under

certain circumstances, parties who do not appear at an evidentiary hearing are entitled to

a new hearing because no record was made of the hearing. See Robinson v. Robinson,

487 S.W.2d 713, 715 (Tex. 1972). These cases hold that “if an appellant exercises due

diligence and through no fault of his own is unable to obtain a proper record of the

evidence introduced, this may require a new trial where his right to have the case

reviewed on appeal can be preserved in no other way.” Rogers v. Rogers, 561 S.W.2d
172, 173–74 (Tex. 1978) (quoting Robinson, 487 S.W.2d at 715). However, we find this

rule inapplicable for at least three reasons.




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        For one, the Ninth Court of Appeals has indicated that this rule should be confined

to suits affecting the parent-child relationship. See White Budd Van Ness P’ship v.

Major-Gladys Drive Joint Venture, 798 S.W.2d 805, 818 (Tex. App.—Beaumont 1990),

writ dismissed, 811 S.W.2d 541 (Tex. 1991). In White Budd, the Ninth court noted that

the rule in Robinson was based in large part on a unique requirement in the family code.

White Budd, 798 S.W.2d at 818. Because we hear this case on transfer, the Ninth court’s

skepticism of this rule’s general applicability holds sway over our decision. See TEX. R.

APP. P. 41.3.

        Likewise, this Court has rejected a similar request to reverse an expunction case

for lack of a reporter’s record. See Tex. Dep’t of Pub. Safety v. Ibarra, 444 S.W.3d 735,

742 (Tex. App.—Corpus Christi 2014, pet. denied). In doing so, we relied primarily on

Ex parte Pinnock, the facts of which resemble those present here. See id. (citing Ex

parte Pinnock, 437 S.W.3d 564, 568 (Tex. App.—Houston [14th Dist.] 2014, no pet.)).3

        Finally, by its terms, this rule requires the appealing party to exercise “due

diligence,” and the inability to obtain a record must not be the fault of the appealing party.

See Robinson, 487 S.W.2d at 715. D.P.S. has not adduced any evidence of the required

diligence. See id. Instead, D.P.S.’s actions—failure to appear at a hearing of which it

          3 In Ex parte Pinnock, a petitioner sought expunction of criminal records, and the district attorney

agreed. See 437 S.W.3d 564, 568 (Tex. App.—Houston [14th Dist.] 2014, no pet.). The petitioner and
the district attorney jointly submitted an agreed order of expunction, which the trial court summarily signed
without receiving evidence. See id. at 568. For its part, D.P.S. received timely notice of the hearing, but
elected not to appear. Id. at 566. Instead, six months later, D.P.S. filed a restricted appeal, insisting that
the trial court reversibly erred by not reporting the hearing, and demanding that a second set of proceedings
be conducted for D.P.S.’s sole benefit. Id. The court declined, noting that the rule described in Rogers
and Robinson applies only where the appellant is “unable to obtain a record of the evidence presented to
the trial court.” Id. at 568 (emphasis added). There was no evidence for D.P.S. to obtain, because the
parties had never offered any; instead, the trial court had granted expunction based upon the district
attorney’s consent rather than any evidence. See id. at 569. Therefore, the rule of Rogers was
inapplicable. See id.
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received due notice, filing a restricted appeal on the very last day it was available, and

submitting records related to a wholly different arrest than the one which is at issue in this

appeal—suggest the opposite.         See id.; Ex parte Pinnock, 437 S.W.3d at 566

(documenting a similar pattern of misusing judicial resources through restricted appeals

rather than appearing at duly noticed hearings).

       For these reasons, we overrule D.P.S.’s fourth issue.

                                    IV.     CONCLUSION

       We affirm the trial court’s order granting expunction of C.B.’s criminal records.



                                                                 NELDA V. RODRIGUEZ
                                                                 Justice

Delivered and filed the
21st day of June, 2018.




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