In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00439-CV
EX PARTE E.M.P.
On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. 2017-524,604, Honorable Jim Bob Darnell, Presiding
March 21, 2019
OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Appellant, the Texas Department of Public Safety (DPS), filed this restricted appeal
seeking reversal of the trial court’s order granting appellee, E.M.P., an expunction of all
records relating to his July 1, 2011 arrest. DPS contends that the evidence is legally
insufficient to support E.M.P.’s entitlement to an expunction. E.M.P. contends that DPS
is not entitled to a restricted appeal because it participated in the decision-making events
that led to the trial court’s order. We reverse and render.
Factual and Procedural Background
On March 8, 2017, E.M.P. filed a petition for expunction of records relating to a
2011 arrest for aggravated robbery. He asserted that he has been released and this
arrest has not resulted in a final conviction and is no longer pending, and that there was
no court-ordered community supervision imposed. On May 18, the trial court entered an
order setting a hearing on E.M.P.’s petition for June 23, 2017. The clerk’s record
establishes that the Lubbock County District Clerk advised DPS of E.M.P.’s petition and
the order setting the hearing by email. The clerk’s record also includes an email from
DPS confirming receipt of the petition and setting.
In its original answer and general denial filed on April 26, 2017, DPS explained
that E.M.P. was arrested for the felony offense of aggravated robbery but that this charge
was later changed to two counts of the Class A misdemeanor offense of Deadly Conduct.
DPS indicates that E.M.P. pled guilty to one count for which he was sentenced to deferred
adjudication community supervision for a period of eighteen months. Copies of the
complaint, information, and order of deferred adjudication were attached to DPS’s
answer.
The trial court granted E.M.P.’s petition and entered its order of expunction on June
25, 2017. In it, the trial court stated that it “considered the Petition for Expunction of
[E.M.P.]” on June 23. The court noted that E.M.P. appeared through counsel but that no
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other party or agency appeared. It appears that the June 23 hearing was not an
evidentiary one.1
Less than six months after entry of the trial court’s order, DPS filed its notice of
restricted appeal on November 27, 2017. DPS requested that the court reporter prepare
a reporter’s record relating to any trial or hearing held in this matter on June 23, 2017.
No reporter’s record has been filed in this appeal.
Restricted Appeal
To be entitled to a restricted appeal, DPS must prove: (1) it filed its restricted
notice of appeal within six months after the judgment was signed; (2) it was a party to the
suit; (3) it did not participate in the hearing that resulted in the complained-of judgment
and did not file any post-judgment motions or request 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); Clopton v. Pak, 66 S.W.3d 513, 515
(Tex. App.—Fort Worth 2001, pet. denied). These requirements are jurisdictional and
must be met for a party to obtain relief by way of a restricted appeal. Clopton, 66 S.W.3d
at 515. Our review of a restricted appeal is limited to the face of the record and we may
not consider extrinsic evidence. Alexander, 134 S.W.3d at 848. “The ‘face of the record’
consists of all the papers that were before the trial court at the time it rendered judgment.”
Ex parte Gomez, No. 07-14-00206-CV, 2016 Tex. App. LEXIS 3263, at *3 (Tex. App.—
Amarillo Mar. 30, 2016, no pet.) (mem. op.) (citing Champion v. Estlow, 456 S.W.3d 363,
364 (Tex. App.—Austin 2015, pet. denied). We apply the same scope of review in a
1 In his brief, E.M.P. makes multiple references to the trial court granting the expunction “based on
the pleadings.”
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restricted appeal as in an ordinary appeal; however, the standard of review differs in that,
in a restricted appeal, the reviewing court may not draw inferences or presumptions from
the record but, rather must look solely to the face of the record itself. Champion, 456
S.W.3d at 364. Consequently, “a restricted appeal requires error that is apparent, not
error that may be inferred.” Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (per curiam)
(emphasis in original).
We must first address E.M.P.’s contention that DPS did not prove its entitlement
to proceed by restricted appeal. Specifically, E.M.P. contends that DPS did not prove its
non-participation in the hearing that resulted in the expunction order. He does not
challenge the other elements for a restricted appeal. E.M.P. acknowledges that DPS filed
an answer. In fact, E.M.P. argues that, by filing an answer in a case in which the trial
court decided the matter based on the pleadings, DPS participated in the decision-making
event that resulted in the complained-of order.
We are to liberally construe the non-participation element in favor of the right to
appeal. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam). The non-
participation element depends on whether the appellant participated in “the decision-
making event” which resulted in the judgment being appealed. Texaco, Inc. v. Cent.
Power & Light Co., 925 S.W.2d 586, 589-90 (Tex. 1996). If, as here, DPS merely files an
answer but does not participate in person or through counsel at the hearing resulting in
the expunction order, we cannot conclude that DPS participated such that it would not be
entitled to restricted review. Ex parte Gomez, 2016 Tex. App. LEXIS 3263, at *4 (citing
Tex. Dep’t of Pub. Safety v. Foster, 398 S.W.3d 887, 890 (Tex. App.—Dallas 2013, no
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pet.); Phillips Petro. Co. v. Bivins, 423 S.W.2d 340, 343 (Tex. Civ. App.—Amarillo 1967,
writ ref’d n.r.e.).
In the present case, the trial court did not hold an evidentiary hearing resulting in
the expunction order. Rather, the trial court decided the expunction based on the
pleadings. Once DPS filed its answer, all facts in E.M.P.’s petition were put at issue and
E.M.P. bore the burden of proving his entitlement to expunction through properly admitted
evidence. Tex. Dep’t of Pub. Safety v. Moran, 949 S.W.2d 523, 526 (Tex. App.—San
Antonio 1997, no writ); see Tex. Dep’t of Pub. Safety v. Steele, 56 S.W.3d 352, 353 (Tex.
App.—Beaumont 2001, no pet.) (citing Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.
1979), for proposition that an expunction cannot be granted on the pleadings). Thus,
after DPS filed its answer, the trial court could not decide E.M.P.’s entitlement to
expunction based on the pleadings and, consequently, DPS did not participate in the
decision-making event which properly led to the trial court’s expunction order. As a result,
we conclude that DPS is entitled to pursue this restricted appeal.
Expunction
The right to having all records and files related to an arrest expunged is governed
by article 55.01(a) of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN.
art. 55.01 (West 2018). Under this provision, expunction is appropriate if “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 . . . unless the offense is
a Class C misdemeanor . . . .” Id. art. 55.01(a)(2). An applicant is entitled to have all
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records and files relating to an arrest expunged if the applicant meets the statutory
requirements of article 55.01. Ex parte Gomez, 2016 Tex. App. LEXIS 3263, at *6.
DPS contends that E.M.P. did not present legally sufficient evidence that he was
entitled to have his arrest records expunged and, consequently, the trial court erred in
granting E.M.P. an expunction. DPS also contends that the trial court could not have
properly granted E.M.P.’s expunction without first holding an evidentiary hearing. Finally,
DPS points to exhibits that it attached to its answer that demonstrate that E.M.P.’s arrest
resulted in a term of community supervision for an offense of a higher degree than a Class
C misdemeanor and, therefore, the record affirmatively reflects that E.M.P. was not
entitled to an expunction.
We review a trial court’s order granting an expunction for an abuse of discretion.
Ex parte S.D., 457 S.W.3d 168, 170 (Tex. App.—Amarillo 2015, no pet.). However, when
a ruling on an expunction turns on a question of law, we review the ruling de novo because
a trial court has no discretion in determining what the law is or applying the law to the
facts. Id. “A trial court abuses its discretion if it orders an expunction of records despite
a petitioner’s failure to satisfy all of the statutory requirements.” Id. (quoting In re O.R.T.,
414 S.W.3d 330, 332 (Tex. App.—El Paso 2013, no pet.)).
Having concluded that DPS is entitled to pursue its restricted appeal, we are left
with the issue of whether error is apparent on the face of this record. As noted above,
DPS attached exhibits to its answer that demonstrate unequivocally that E.M.P.’s arrest
resulted in a term of community supervision for the Class A misdemeanor offense of
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deadly conduct.2 Ex parte Gomez, 2016 Tex. App. LEXIS 3263, at *6-7 (“The papers
before the trial court provided by DPS as exhibits to its answer demonstrate unequivocally
that Gomez’s arrest resulted in a term of court-ordered community supervision for an
offense of a higher degree than a Class C misdemeanor.”). E.M.P. did not present
evidence sufficient to establish his entitlement to expunction. Id. at *7. Additionally, the
trial court erred because “[j]udgment cannot be entered on the pleadings, but the plaintiff
must produce evidence proving his case.” Steele, 56 S.W.3d at 353 (citing Stoner, 578
S.W.2d at 682); see Moran, 949 S.W.2d at 526. Because E.M.P. did not produce legally
sufficient evidence to support his entitlement to expunction and the trial court granted the
expunction on the pleadings, we conclude that the trial court erred in granting E.M.P.’s
petition to have his record expunged.
Conclusion
The trial court’s order of expunction is reversed and E.M.P.’s petition for
expunction is denied. See TEX. R. APP. P. 43.2(c); Ex parte Gomez, 2016 Tex. App.
LEXIS 3263, at *7. Further, the Court orders that all documents, if any, that were turned
over to the trial court or E.M.P. be returned to the submitting agency.
Judy C. Parker
Justice
2 See TEX. PENAL CODE ANN. § 22.05(a), (e) (West 2011).
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