In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-19-00085-CV
__________________
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
J.A.G. JR., Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 18-07-08443-CV
__________________________________________________________________
MEMORANDUM OPINION
The Texas Department of Public Safety (the DPS or Appellant) brings this
restricted appeal from an order expunging J.A.G. Jr.’s (Appellee or Petitioner)
criminal records related to a charge of misdemeanor driving while intoxicated in
Montgomery County. The DPS asserts that (1) legally insufficient evidence supports
the expunction order; (2) the trial court misinterpreted the expunction statute to allow
records of the arrest be destroyed as Appellee was convicted as a result of his arrest;
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(3) the trial court erred in ordering an expunction without holding a hearing; and (4)
if a hearing was held, no reporter’s record was made of the hearing. Appellee did not
file a brief. We sustain Appellant’s fourth issue and reverse the trial court’s order
based on the absence of a reporter’s record.
On May 16, 2008, Appellee was arrested in cause number 08-240219 for
misdemeanor driving while intoxicated. On June 29, 2018, Appellee filed a petition
to expunge the records relating to his arrest because the charge had been dismissed,
and he requested that the entities that he believed had records subject to expunction
be served with notice of the petition: (1) Montgomery County Sheriff’s Department,
(2) Montgomery County District Attorney’s Office, (3) Montgomery County
District Clerk’s Office, (4) Montgomery County Clerk’s Office, (5) Federal Bureau
of Investigation, (6) Texas Department of Public Safety, (7) Montgomery County
Bond, and (8) the Conroe Police Department.
In the clerk’s record there is an Order Setting Hearing by Submission Petition
for Expunction, signed by the trial court judge on July 2, 2018, and ordering the
petition “set for hearing by submission on September 07, 2018, at 9:00[ ]am.” A July
17, 2018 letter from the Montgomery County District Clerk appears in the record,
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and it is addressed to multiple entities with attached copies of the petition, notice of
submission and hearing date/time, and proposed expunction order. 1
On August 28, 2018, the DPS filed its original answer and general denial and
asserted that Appellee “is barred from expunging records of the Petitioner’s arrest
on May 16, 2008, for the Class B misdemeanor offense of Driving While Intoxicated
because the Petitioner was convicted as a result of this arrest.” The DPS attached to
its answer a copy of the complaint and information in cause number 08-240219, a
copy of a motion to dismiss in cause number 08-240219, and copies of the complaint,
information, and judgment in cause number 09-248724. According to the DPS,
[h]ere, the Petitioner was not acquitted or pardoned for an unrelated
charge; rather Petitioner chose to plead guilty to Driving with Invalid
License which resulted in a final conviction. Since the Petitioner was
convicted for a misdemeanor charge based on the same arrest, the
Petitioner is not entitled to an expunction of any charges stemming from
that arrest.
On September 17, 2018, the trial court signed what it styled as an “Agreed
Order of Expunction” reciting that “[o]n this date came on to be heard the petition
for expunction filed” and that “[h]aving considered the pleadings and other
1
Although the letter lists an email address for the DPS among the intended
recipients, proof of email delivery of the notice to other entities is attached to the
letter in the record and no such confirmation of email delivery to the DPS is in the
record. That said, the DPS does not argue on appeal that it did not receive notice of
the hearing.
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documents on file[]” and ordering the entities named in the expunction petition to
return all records and files about Appellee’s arrest in cause number 08-240219 to the
trial court, or if not practical, to destroy such records or files.2 In accordance with
the expunction order, the district clerk in a letter dated October 22, 2018, notified
the parties of the signed expunction order and delivered through email a copy of the
order to the entities listed in the order. There is an email delivery confirmation
receipt in the clerk’s record for the email from the district clerk’s office to the DPS
notifying the DPS of the final expunction order.
On March 15, 2019, the DPS filed its notice of restricted appeal. On appeal,
the official court reporter stated in a letter to this Court that there was “no oral
[hearing] regarding the above matter; therefore, there is no Reporter’s Record in the
above-mentioned cause to be filed.”
We review a trial court’s ruling on a petition for expunction under an abuse
of discretion standard. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.
App.—Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92
S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). Expunction is neither a
2
The Montgomery County District Attorney agreed to the form of the order
of expunction. A district attorney’s agreement in an expunction proceeding does not
bind the DPS or preclude the DPS 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.).
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constitutional nor a common-law right, but a statutory privilege. In re D.W.H., 458
S.W.3d 99, 104 (Tex. App.—El Paso 2014, no pet.). A statutory expunction
proceeding is a civil rather than a criminal proceeding, and the petitioner has the
burden of proving that he has complied with the requirements of the expunction
statute. Collin Cty. Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625, 626
(Tex. App.—Dallas 2005, no pet.); Houston Police Dep’t v. Berkowitz, 95 S.W.3d
457, 460 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
To attack an order by restricted appeal, the appealing party must show: (1) he
filed a notice of restricted appeal within six months after the judgment or
complained-of order was signed, (2) he was a party to the underlying lawsuit, (3) he
did not participate either in person or through counsel in the hearing that resulted in
the judgment or complained-of order and did not timely file any post-judgment
motions or requests for findings of fact or 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); see also Tex. R. App. P. 26.1(c), 30.
The trial court signed the expunction order on September 17, 2018. The DPS
filed its notice of restricted appeal on March 15, 2019, within the six-month deadline
set by Rule 26.1(c). See Tex. R. App. P. 26.1(c). The DPS was a party entitled to
appeal the expunction order. See Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) (An
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agency protesting an expunction order may appeal the judge’s decision in the same
manner as in other civil cases.). The DPS was named in the expunction order as an
agency or entity that might have records or files subject to expunction, there is no
indication that the DPS participated in any hearing that resulted in the expunction
order, and the DPS did not file any post-judgment motions or request findings of fact
and conclusions of law. The DPS therefore met the first three requirements of its
restricted appeal.
The final and fourth requirement is whether error is apparent on the face of
the record. Grant, 447 S.W.3d at 886. The DPS argues that error is apparent on the
face of the record because a hearing was not held or alternatively there is no
transcription of the hearing, and the clerk’s record lacks enough evidence to grant
the expunction petition absent a live hearing. The DPS also contends that under the
plain language of article 55.01(a)(2), a petitioner is ineligible to expunge an offense
for which he was arrested if he was convicted of a misdemeanor offense based on
that arrest.
Based on the trial court’s notice setting a hearing on J.A.G.’s petition for
expunction for a particular date and time, it is possible that an oral hearing occurred,
but there is no reporter’s record for the hearing. Without a reporter’s record, we
cannot know what evidence, if any, was introduced at the hearing. See Tex. Dep’t of
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Pub. Safety v. L.V., No. 03-17-00809-CV, 2018 Tex. App. LEXIS 6152, at **9-10
(Tex. App.—Austin Aug. 7, 2018, no pet.) (mem. op). The lack of a reporter’s record
constitutes error on the face of the record, and we therefore reverse and remand for
a new hearing. Texas Dep’t of Pub. Safety v. N.E.A., No. 09-16-00057-CV, 2017
Tex. App. LEXIS 2525, at **2-3 (Tex. App.—Beaumont Mar. 23, 2017, no pet.)
(mem. op.) (A trial court’s expunction order had been agreed to in form and
substance by the District Attorney’s Office. On appeal the expunction was reversed
and remanded for a new hearing when the petitioner in the trial court failed to have
the hearing transcribed); see L.V., 2018 Tex. App. LEXIS 6152, at **9-10 (reversing
the trial court’s order of expunction and remanding the cause for a new hearing
“[b]ecause the lack of a reporter’s record constitutes error on the face of the
record[]”); Ex parte Ruiz, No. 04-11-00808-CV, 2012 Tex. App. LEXIS 5467, at *4
(Tex. App.—San Antonio July 11, 2012, no pet.) (mem. op.) (“[B]ecause DPS has
complained of the absence of a reporter’s record, the trial court’s order must be
reversed, and the cause must be remanded for a new hearing.”). The error
complained of “probably prevented the appellant from properly presenting the case
to the court of appeals.” See Tex. R. App. P. 44.1(a)(2).
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For these reasons, we sustain issue four and we need not address the DPS’s
other issues. See Tex. R. App. P. 47.1. We reverse the trial court’s order of
expunction and remand the case to the trial court for a new hearing.
REVERSED AND REMANDED.
_________________________
LEANNE JOHNSON
Justice
Submitted on July 15, 2019
Opinion Delivered January 9, 2020
Before McKeithen, C.J., Kreger and Johnson, JJ.
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