COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00036-CV
EX PARTE J.J.
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FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
TRIAL COURT NO. CV16-00300
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MEMORANDUM OPINION 1
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The Texas Department of Public Safety brings this restricted appeal from
an order granting J.J.’s petition to expunge certain records related to his June 24,
2006 arrest. In four issues, DPS argues that the trial court erred by expunging
J.J.’s arrest record because (1) he was convicted of an offense arising from that
arrest, (2) the evidence was legally insufficient to support the expunction order,
(3) the trial court did not hold a hearing, and (4) even if it had held a hearing, no
1
See Tex. R. App. P. 47.4.
reporter’s record was prepared. Because, based on DPS’s second issue, J.J.
failed to prove that he is entitled to have his arrest record expunged, error is
apparent on the face of the record. We will therefore reverse and render
judgment denying J.J.’s expunction petition.
I. Background
J.J. was arrested on June 24, 2006, and subsequently charged with both
aggravated assault with a deadly weapon and unlawfully carrying a weapon on a
“premises licensed or issued a state permit by this state for the sale of alcoholic
beverages.” 2 J.J. pleaded guilty to the latter offense pursuant to a plea bargain,
and in accordance with that plea, the trial court found him guilty, sentenced him
to five years’ confinement, suspended the sentence, and placed him on
community supervision. The aggravated-assault charge was dismissed.
On May 24, 2016, J.J. filed a verified expunction petition, in which he
sought expunction of all records and files related to the aggravated-assault
charge, asserting that he was entitled to expunction under article 55.01(a)(2)
because the charge had been dismissed, he had been released, the charge did
not result in a final conviction or court-ordered community supervision, and the
three-year waiting period and three-year statute of limitation for felonies had
2
See Act of May 20, 2005, 79th Leg., R.S., ch. 788, § 3, 2005 Tex. Gen.
Laws 2709, 2710 (amended 2009) (current version at Tex. Penal Code Ann.
§ 22.02(a)(2) (West 2011)); Act of May 31, 1997, 75th Leg., R.S., ch. 1221, § 1,
1997 Tex. Gen. Laws 4684, 4684–85 (amended 1997, 2007, 2011, 2015, 2017)
(current version at Tex. Penal Code Ann. § 46.02(a), (c) (West Supp. 2017)).
Later amendments to these statutes do not affect this case.
2
expired. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (West 2018). The trial
court set the expunction petition for a hearing on August 3, 2016.
DPS answered, generally denying J.J.’s allegations and specifically
asserting that J.J. was not entitled to expunction of any records relating to his
June 24, 2006 arrest because the trial court convicted J.J. of the unlawfully-
carrying-a-weapon charge that also arose from that arrest. DPS attached to its
answer the indictments for both charges and the conviction judgment.
Following a setting at which DPS did not appear, the trial court granted
J.J.’s petition and signed an expunction order on August 3, 2016. 3 DPS timely
filed a notice of restricted appeal on February 3, 2017. See Tex. R. App. P.
26.1(c).
II. Expunction
In its second issue, which is dispositive, DPS asserts that the trial court
erred by granting J.J.’s expunction petition because he did not present any
evidence proving that he was entitled to expunction under article 55.01(a)(2),
rendering the evidence legally insufficient to support the trial court’s order. 4 See
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).
3
According to the expunction order, the trial court did not consider any
evidence in granting J.J.’s expunction petition. The order states that the trial court
granted the petition after considering the petition. We have no record of any
hearing; the court reporter notified us that she “was the reporter when the above-
styled and -numbered cause was set on the docket to be heard, August 3, 2016,”
but “that there was nothing put on the record” that day.
4
J.J. has not filed a brief.
3
A. Restricted-appeal requirements and standard of review
To prevail in its restricted appeal, DPS must show that (1) it filed its notice
of appeal within six months after the complained-of judgment or order was
signed; (2) DPS was a party to the underlying suit but did not participate in the
hearing that resulted in the complained-of judgment; (3) DPS did not timely file a
postjudgment motion, request findings of fact and conclusions of law, or file a
notice of appeal within the time permitted by appellate-procedure rule 26.1(a);
and (4) the complained-of error is apparent from the face of the record. See Tex.
R. App. P. 26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254,
255 (Tex. 2009); Mandel v. Lewisville ISD, 445 S.W.3d 469, 474 (Tex. App.—
Fort Worth 2014, pet. denied); see also Etheredge v. Hidden Valley Airpark
Ass’n, 169 S.W.3d 378, 381 (Tex. App.—Fort Worth 2005, pet. denied) (op. on
reh’g) (stating that restricted-appeal requirements should be “liberally construed
in favor of the right to appeal”). For restricted-appeal purposes, the face of the
record consists of all papers on file in the appeal, including the clerk’s record and
the reporter’s record. Chen v. Johnson, No. 02-12-00428-CV, 2013 WL 2339233,
at *1 (Tex. App.—Fort Worth May 30, 2013, no pet.) (mem. op.) (citing Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)).
We review a trial court’s order granting or denying an expunction petition
for an abuse of discretion. Ex parte Cephus, 410 S.W.3d 416, 418 (Tex. App.—
Houston [14th Dist.] 2013, no pet.); Heine v. Tex. Dep’t of Pub. Safety,
92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). A trial court abuses
4
its discretion if it fails to analyze or apply the law correctly. Iliff v. Iliff, 339 S.W.3d
74, 78 (Tex. 2011). If an expunction turns on a legal question, we review the
ruling de novo because a trial court has no discretion in determining what the law
is or in applying the law to the facts. Tex. Dep’t of Pub. Safety v. Dicken,
415 S.W.3d 476, 478 (Tex. App.—San Antonio 2013, no pet.).
In determining whether there is legally sufficient evidence to support the
finding under review, we must consider evidence favorable to the finding if a
reasonable factfinder could and must disregard contrary evidence unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas,
228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807,
827 (Tex. 2005). We may sustain a legal-sufficiency challenge only when (1) the
record discloses a complete absence of evidence of a vital fact, (2) the court is
barred by rules of law or of evidence from giving weight to the only evidence
offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no
more than a mere scintilla, or (4) the evidence establishes conclusively the
opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex.
2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,
334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999).
B. Governing law
Expunction is not a constitutional or common-law right but, rather, a
statutory privilege. Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex.
App.—Austin 2010, no pet.) (op. on reh’g). The Texas Code of Criminal
5
Procedure governs a petitioner’s entitlement to expunction. See Tex. Code Crim.
Proc. Ann. art. 55.01. The petitioner in an expunction proceeding has the burden
of proving compliance with all statutory requirements and is entitled to expunction
only when he has met all those conditions. McCarroll v. Tex. Dep’t of Pub.
Safety, 86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002, no pet.).
Article 55.01 states, in relevant part, as follows:
(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 Class C misdemeanor, provided
that:
(A) regardless of whether any statute of limitations
exists for the offense and whether any limitations period for
the offense has expired, an indictment or information charging
the person with the commission of a misdemeanor offense
based on the person’s arrest or charging the person with the
commission of any felony offense arising out of the same
transaction for which the person was arrested:
(i) has not been presented against the person at
any time following the arrest, and:
(a) at least 180 days have elapsed from the
date of arrest if the arrest for which the
expunction was sought was for an offense
punishable as a Class C misdemeanor and if
there was no felony charge arising out of the
same transaction for which the person was
arrested;
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(b) at least one year has elapsed from the
date of arrest if the arrest for which the
expunction was sought was for an offense
punishable as a Class B or A misdemeanor and if
there was no felony charge arising out of the
same transaction for which the person was
arrested;
(c) at least three years have elapsed from
the date of arrest if the arrest for which the
expunction was sought was for an offense
punishable as a felony or if there was a felony
charge arising out of the same transaction for
which the person was arrested; or
(d) the attorney representing the state
certifies that the applicable arrest records and
files are not needed for use in any criminal
investigation or prosecution, including an
investigation or prosecution of another person; or
(ii) if presented at any time following the arrest,
was dismissed or quashed, and the court finds that the
indictment or information was dismissed or quashed
because the person completed a pretrial intervention
program authorized under Section 76.011, Government
Code, 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, or because the indictment or information was
void; or
(B) prosecution of the person for the offense for which
the person was arrested is no longer possible because the
limitations period has expired.
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). 5
5
Effective January 1, 2017, and September 1, 2017, the legislature
amended article 55.01(a) in 2015 and 2017. See Act of May 24, 2017, 85th Leg.,
R.S., ch. 693, § 1, art. 55.01(a), 2017 Tex. Sess. Law Serv. 3083, 3083–
84 (West); Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 2.23, art. 55.01(a),
7
C. Analysis
The record establishes that DPS timely filed a notice of restricted appeal;
was a party to the underlying lawsuit; did not participate in the hearing that
resulted in the trial court’s expunction order; 6 and did not file any postjudgment
motions, request findings of fact and conclusions of law, or file a notice of appeal
within the time permitted by rule 26.1(a). See Tex. R. App. P. 26.1(a), (c), 30;
Lejeune, 297 S.W.3d at 255. We must therefore determine whether error is
apparent on the face of the record. See Tex. R. App. P. 30; Lejeune, 297 S.W.3d
at 255.
In his verified expunction petition, J.J. asserted that he was entitled to
expunction under article 55.01(a)(2) because the aggravated-assault charge was
dismissed, he had been released, the charge did not result in a final conviction or
court-ordered community supervision, and the three-year waiting period and
2015 Tex. Sess. Law Serv. 2320, 2372–73 (West). Because J.J. filed his
expunction petition before these amendments were effective, our citations to
article 55.01(a)’s language are to the version effective September 1, 2011. See
Act of May 27, 2011, 82d Leg., R.S., ch. 690, § 1, art. 55.01, 2011 Tex. Sess.
Law Serv. 1651, 1651–52 (West) and Act of May 27, 2011, 82d Leg., R.S., ch.
894, § 1, art. 55.01, 2011 Tex. Sess. Law Serv. 2274, 2274–75 (West) (amended
2015 and 2017) (current version at Tex. Code Crim. Proc. Ann. art. 55.01). We
note, however, that the 2015 and 2017 amendments do not affect the substance
of the language relevant to J.J.’s right to expunction.
6
“Numerous appellate courts, including this court, have impliedly or
explicitly held that an answer from DPS does not constitute participation in the
hearing that resulted in the expunction order and thus does not bar DPS from
pursuing a restricted appeal.” Ex parte K.K., No. 02-17-00158-CV,
2018 WL 1324696, at *2 n.6 (Tex. App.—Fort Worth Mar. 15, 2018, no pet.)
(mem. op.) (citing cases).
8
three-year statute of limitation for felonies had expired. DPS’s general denial in
response sufficed to put these matters at issue. See Tex. R. Civ. P. 92; State v.
Herron, 53 S.W.3d 843, 847 (Tex. App.—Fort Worth 2001, no pet.) (“In a civil
case, a general denial puts a plaintiff on proof of every fact essential to his case.
This is true even in expunction cases. A verified pleading is generally not
evidence.” (citations omitted)). “Once the matter is in issue and the petitioner’s
allegations are controverted, the petitioner must present evidence to substantiate
his pleadings in order to prevail.” Tex. Dep’t of Pub. Safety v. Borhani, No. 03-08-
00142-CV, 2008 WL 4482676, at *4 (Tex. App.—Austin Oct. 3, 2008, no pet.)
(mem. op.) (citing Tex. Dep’t of Pub. Safety v. Claudio, 133 S.W.3d 630, 632–
33 (Tex. App.—Corpus Christi 2002, no pet.) (op. on reh’g)). The trial court
cannot take the petitioner’s allegations to be true without testimony, other proof
(such as affidavits), or admissions by the other party. Id. (citing Claudio,
133 S.W.3d at 632–33). “The allegations alone in a verified petition, after being
put in issue by a general denial, do not constitute proof of those allegations.” Id.
To be entitled to expunction under article 55.01(a)(2), J.J. had to prove that
he satisfied all the article’s requirements. See McCarroll, 86 S.W.3d at 378. Once
DPS’s answer put J.J.’s right to expunction under article 55.01(a)(2) at issue, J.J.
had to present evidence proving his right to expunction. See Bohrani,
2008 WL 4482676, at *4; Claudio, 133 S.W.3d at 632–33.
The face of the record reflects that J.J. offered no evidence to support his
expunction petition. As noted, the expunction order reflects that the trial court did
9
not consider any evidence in granting J.J.’s petition. The order states that the trial
court expunged records and files related to J.J.’s aggravated-assault charge
based only on his petition. And according to the court reporter, nothing was put
on the record the day the hearing was set. We therefore conclude that, on this
record, the evidence is legally insufficient to support the trial court’s order
granting J.J.’s expunction petition. Because error appears on the face of this
record, we sustain DPS’s second issue. And because this issue is dispositive, we
need not address its remaining issues. See Tex. R. App. P. 47.1.
III. Conclusion
Having sustained DPS’s second issue, which is dispositive of this appeal,
we reverse the trial court’s expunction order and render judgment denying J.J.’s
expunction petition. See Tex. R. App. P. 43.2(c); Tex. Dep’t of Pub. Safety v.
Sorrell, No. 03-06-00518-CV, 2008 WL 5264917, at *2 & n.1 (Tex. App.—Austin
Dec. 19, 2008, no pet.) (mem. op.); Herron, 53 S.W.3d at 848. All documents that
were turned over to the trial court or to J.J. by law-enforcement agencies in
compliance with the expunction order must be returned to the submitting
agencies. See K.K., 2018 WL 1324696, at *4; Ex parte B.M., No. 02-14-00336-
CV, 2015 WL 3421979, at *2 (Tex. App.—Fort Worth May 28, 2015, no pet.)
(mem. op.).
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/s/ Elizabeth Kerr
ELIZABETH KERR
JUSTICE
PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.
DELIVERED: July 12, 2018
11