NUMBER 13-21-00050-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE A.M.
On appeal from the 139th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina
Memorandum Opinion by Justice Hinojosa
Appellant, the Texas Department of Public Safety (DPS), appeals the trial court’s
order granting appellee A.M.’s petition to expunge criminal records. 1 In two issues, DPS
argues that the trial court erred in granting A.M.’s petition because: (1) it did so without
notice or a hearing; and (2) A.M. did not meet his burden of proof to establish his
entitlement to relief. We reverse and remand.
1 A.M. has not filed an appellee’s brief to assist in our resolution of this appeal.
I. BACKGROUND
On September 17, 2020, A.M. filed a petition to expunge records of his arrest for
driving while intoxicated, which he contended were eligible for expunction under article
55.01(a)(2) of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN.
art. 55.01(a)(2). The trial court set a hearing on A.M.’s petition for January 14, 2021. DPS
filed its answer to the petition on January 11, generally denying A.M.’s allegations.
However, unbeknownst to DPS, the trial court signed an order granting expunction on
January 6, without notice or a hearing. 2 DPS now appeals.
II. NOTICE
A. Standard of Review & Applicable Law
“Expunction is a civil remedy governed by Article 55.01 of the Texas Code of
Criminal Procedure.” Ex parte R.P.G.P., 623 S.W.3d 313, 316 (Tex. 2021). “Because the
remedy is a privilege defined by the Legislature, and not a constitutional or common-law
right, the statutory requirements are mandatory and exclusive and cannot be equitably
expanded by the courts.” Id.; see Ex parte Vega, 510 S.W.3d 544, 548 (Tex. App.—
Corpus Christi–Edinburg 2016, no pet.). Generally, we review a trial court’s expunction
ruling for an abuse of discretion. Ex parte Green, 373 S.W.3d 111, 113 (Tex. App.—San
Antonio 2012, no pet.). However, to the extent an expunction ruling 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 in applying the law to the facts. Id. (citing Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992)).
2 The court reporter has filed a letter informing the Court that no hearing was held in this cause.
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The trial court must strictly comply with the statutory procedures for expunction,
and it commits reversible error when it fails to do so. See Tex. Dep’t of Pub. Safety v.
Fredricks, 235 S.W.3d 275, 281 (Tex. App.—Corpus Christi–Edinburg 2007, no pet.)
(citing Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.—Waco 1997, pet. denied)). The
expunction statute explicitly requires the trial court to set a hearing and to give reasonable
notice to each official, agency, or government entity which was named in the petition
seeking an expunction of criminal records:
The court shall set a hearing on the matter no sooner than thirty days from
the filing of the petition and shall give to each official or agency or other
governmental entity named in the petition reasonable notice of the hearing
by: (1) certified mail, return receipt requested; or (2) secure electronic mail,
electronic transmission, or facsimile transmission.
See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(c). “If the record does not indicate that
the agency was notified in accordance with the statute, then the record reflects a
proceeding in violation of the statute and the expunction order must be set aside.” Tex.
Dep’t of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.—San Antonio 1997, no
pet.).
B. Analysis
The trial court was required to provide notice to DPS of the hearing in this matter
because DPS is a named agency in A.M.’s petition. 3 The trial court provided notice to
DPS of a January 14 hearing, but it inexplicably granted A.M.’s petition on January 6,
without holding a hearing. We conclude that the trial court erred in granting A.M. relief
without affording DPS proper notice or an opportunity to be heard as required by the
3The hearing need not be evidentiary in all instances, but proper notice must be provided to the
parties. See In re J.J.R., 599 S.W.3d 605, 614 (Tex. App.—El Paso 2020, no pet.).
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statutory scheme. See In re J.J.R., 599 S.W.3d 605, 614 (Tex. App.—El Paso 2020, no
pet.) (reversing the trial court’s expunction order where DPS did not receive notice of the
petition for expunction); Tex. Dep’t of Pub. Safety v. Soto, 285 S.W.3d 542, 544 (Tex.
App.—Corpus Christi–Edinburg 2009, no pet.) (reversing the trial court’s order granting
expunction where DPS did not receive notice of the hearing date); Deck, 954 S.W.2d at
112 (same). Because of our resolution of this issue, we do not reach DPS’s second issue,
which complains that A.M. did not carry his burden of proof. A.M., like DPS, should be
afforded an opportunity to present evidence regarding this matter. See In re J.J.R., 599
S.W.3d at 614 (“We therefore remand this case to the trial court to afford all parties herein
with an opportunity to set a hearing form which a record may be developed therefrom.”).
III. CONCLUSION
We reverse the trial court’s order of expunction and remand the case for further
proceedings consistent with this memorandum opinion.
LETICIA HINOJOSA
Justice
Delivered and filed on the
31st day of August, 2021.
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