REVERSF and RFNI)ER; Opinion issued February 7, 2013
In The
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No. 05-12-00662-CV
EX PARTE VIRGiNIA LYNN BEARCE-BELLOW
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-03109-2011
MEMORANDUM OPINION
Beibre Justices Moselev. Francis. and Lang
Opinion By Justice Francis
The Texas Department of Public Safety brings this restricted appeal of an expunction order
in favor of Virginia Lynn Bearce-Bellow. In three issues, DPS contends (1) Bearce-Bellow is not
entitled to have her record expunged because she served a term of deferred adjudication as a result
of the arrest, (2) the trial court abused its discretion in ordering expunction because DPS did not
receive notice of the hearing, and (3) the case must be remanded for a new trial because there is no
reporter’s record. We reverse the trial courf s order and render judgment denying Bearce-Bellows
petition for expunction.
We first address whether DPS may complain of the expunction order in a restricted appeal.
To successfully attack an order by restricted appeal, the complaining party must show it was a party
who did not participate either in person or through counsel in the hearing that resulted in the
judgment complained of, it filed a notice of appeal within six months after the order was signed, and
error is apparent on the face of the record. See Tix. R. Ape. P. 26.1(c). 30.
An agency protesting an expunction order may appeal the trial court’s decision in the same
manner as in other civil cases. TEx. CODE CIuM. PRoc. ANN. art. 55.02, § 3(a) (West Supp. 2012).
All law enforcement agencies that may have records a petitioner wants expunged are entitled to be
represented by counsel at an expunction hcaring. See Id. art. 55.02. § 2(c—1); Ta Dep •I of Pub.
Safely v. Jacobs. 250 S.W.3d 209.210 (Tex. App.—DaIIas 2008, no pet.). As a State agency with
records subject to expunction, DPS is a party to the suit within the meaning ofthe requirements of
a restricted appeal. Jacobs, 250 S.W.3d at 210. In this case, the record shows DPS was served with
a copy ofthe petition for expunction in November2011. three and one-halfmonths after the petition
was filed, but did not file a written response. did not receive notice of the hearing, and did not
participate either in person or through counsel in the expunction hearing. Thus. DPS meets the first
requirement for raising a restricted appeal.
The expunction order was signed December 8, 2011, and DPS filed its notice ofappeal May
17.2012. within the six-month deadline contemplated in rule 26.1(c). Because DPS timely filed its
notice of restricted appeal, it meets the second requirement for raising a restricted appeal. We next
turn to whether error is apparent on the face of the record.
In a restricted appeal, we are limited to considering only the face ofthe record, but our scope
of review is otherwise the same as that in an ordinary appeal; thus, we review the entire case. Iii
Our review of the entire case encompasses the “review of legal and factual insufficiency claims.”
See Id.
In its first issue, DPS argues error because the record shows Bearce-Bellow pleaded guilty
to the lesser included offense of assault a Class A misdemeanor, and served a term of deferred
adjudication as a result of her arrest. We agree.
—2—
Article 55.01 of the code of criminal procedure provides a person who has been placed under
a custodial or nuncustodial arrest for commission of ci [her a felony or misdemeanor is entitled, under
certain conditions, to expunction of all records and tiles relating to the arrest. [ic. (‘ODE CRII.
PROC. Ayy. art. 55.01 (West Supp. 2012). To he entitled to expunction under the facts of this case.
Bearce—ilelIow had to establish she has been released and “the charge, if any, has not resulted in a
ii nat conviction and is no longer pending and there was no courtordered community supervision
under Article 42. 12/or ihe o,fense, unless the offense is a Class C misdemeanor. TEN. Conu CRIM.
PROC. ANN. art. 55.0 1(a)(2) (emphasis added).
A review of the record shows Bearce-Bellow was arrested and charged with aggravated
assault with a deadly weapon. The order of deferred adjudication in the record shows she pleaded
guilty to the lesser included offense of assault. a Class A misdemeanor. and was placed on deftrred
adjudication for one year. In her petition. Bearce—Bellow alleged she was placed on dePrred
adjudication probation br the lesser included offense of assault by threat or contact, a Class C
misdemeanor. The ftice of the record establishes Bearce-Bellow was not entitled to expunction
because she pleaded guilty to a Class A misdemeanor and the trial court ordered “community
supervision” under article 42.12 of the code of criminal procedure. See Jacobs, 250 S.W.3d at 211.
Because DPS established error apparent on the face of this record, we sustain its first issue. In light
of our disposition. we need not address the remaining two issues.
We reverse the trial court’s order granting expunction and renderj ucigment denying Bearce
Bellow’s petition for expunction.
/Molly Francis/
MOLLY FRANCIS
J Ii STICE
I 20662F.P05
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QuiirI of Appcals
FiftI! Jistrirt of Jixas tt Oi11as
JUDGMENT
EX PARTE VIRGINIA LYNN BEARCE- Appeal from the 219th Judicial District
BELLOW Court of Collin County, Texas. (Tr.Ct.No.
219-03109-2011).
No. 05-12-00662-CV Opinion delivered by Justice Francis,
Justices Moseley and Lang participating.
In accordance with this Court’s opinion of this date, we REVERSE the trial court’s
judgment and RENI)ER judgment that the petition for expunction is DENIED, We ORDER
the Texas Department of Public Safety recover its costs of this appeal from Virginia Lynn
Bearce-Bellow.
Judgment entered February 7. 2013.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
Ex Parte: Virginia Lynn Bearce-Bellow v. Texas Dept of Public Safety
Combined Opinion