Ex Parte: C. G. B.

NO. 12-20-00169-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§ APPEAL FROM THE 145TH
EX PARTE:
§ JUDICIAL DISTRICT COURT
C.G.B.
§ NACOGDOCHES COUNTY, TEXAS

MEMORANDUM OPINION
The Texas Department of Public Safety (DPS) appeals the trial court’s grant of C.G.B.’s
petition for expunction. In two issues, DPS argues that it was not notified of the expunction
hearing as required by statute and C.G.B. failed to present legally sufficient evidence that he was
entitled to an expunction. We reverse the trial court’s judgment, set aside the expunction order,
and remand for further proceedings.

BACKGROUND
On April 24, 2020, C.G.B. filed a petition to expunge all criminal records arising from his
arrest for making alcohol available to a minor. A hearing was set for June 25. DPS received
notice of the hearing on May 11. On June 4, the trial court signed an “Agreed Order of
Expunction.”
On June 9, DPS filed a motion for new trial, arguing that the expunction order must be
set aside because (1) DPS was not notified of the June 4 hearing and (2) C.G.B. was not entitled
to an expunction because he was convicted of an offense related to making alcohol available to a
minor—namely, disorderly conduct—based on the arrest. A hearing on the motion was held on
August 5. At the hearing, C.G.B. argued that the trial court was within its discretion to sign the
expunction order on June 4 without notifying DPS because DPS failed to file an answer in the
time required by Texas Rule of Civil Procedure 99. The trial court denied the motion for new

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trial, finding that “DPS was wholly in default for failing to timely file an answer.” This appeal
followed.

HEARING NOTICE REQUIREMENT
In DPS’s first issue, it argues that the trial court erred by granting C.G.B.’s expunction
petition because it was not notified of the June 4 hearing. We agree.
Although an expunction proceeding is civil in nature, the code of criminal procedure sets
forth the procedures to be followed in an expunction proceeding. TEX. CODE CRIM. PROC. ANN.
art. 55.02 (West Supp. 2020); State v. T.S.N., 547 S.W. 3d 617, 619 (Tex. 2018). Under Article
55.02(c),

(c) [t]he 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.

TEX. CODE CRIM. PROC. ANN. art. 55.02(c). The procedures provided for in Article 55.02 are
mandatory. Texas Dep’t of Public Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.—San
Antonio 1997, no writ). If the record does not indicate an agency named in the petition was given
reasonable notice of the hearing, the proceeding was held in violation of Article 55.02 and the
expunction order must be set aside. Id.
The record here indicates that DPS was not notified of the June 4 hearing. Therefore, the
proceeding was held in violation of Article 55.02 and the expunction order must be set aside. See
id.
C.G.B. makes the same Rule 99 argument on appeal that he made in the trial court, but
that argument does not avail him here. Rule 99 provides, in pertinent part, as follows:

a. Issuance. Upon the filing of the petition, the clerk, when requested, shall forthwith issue a
citation and deliver the citation as directed by the requesting party. The party requesting citation
shall be responsible for obtaining service of the citation and a copy of the petition. Upon request,
separate or additional citations shall be issued by the clerk. The clerk must retain a copy of the
citation in the court’s file.

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 b. Form. The citation shall (1) be styled “The State of Texas,” (2) be signed by the clerk under seal
of court, (3) contain name and location of the court, (4) show date of filing of the petition, (5)
show date of issuance of citation, (6) show file number, (7) show names of parties, (8) be directed
to the defendant, (9) show the name and address of attorney for plaintiff, otherwise the address of
plaintiff, (10) contain the time within which these rules require the defendant to file a written
answer with the clerk who issued citation, (11) contain address of the clerk, (12) notify the
defendant that in case of failure of defendant to file an answer, judgment by default may be
rendered for the relief demanded in the petition, and (13) notify the defendant that the defendant
may be required to make initial disclosures. The citation shall direct the defendant to file a written
answer to the plaintiff’s petition on or before 10:00 a.m. on the Monday next after the expiration
of twenty days after the date of service thereof. The requirement of subsections 10, 12, and 13 of
this section shall be in the form set forth in section c of this rule.

c. Notice. The citation shall include the following notice to the defendant: “You have been sued.
You may employ an attorney. If you or your attorney do not file a written answer with the clerk
who issued this citation by 10:00 a.m. on the Monday next following the expiration of twenty days
after you were served this citation and petition, a default judgment may be taken against you. In
addition to filing a written answer with the clerk, you may be required to make initial disclosures
to the other parties of this suit. These disclosures generally must be made no later than 30 days
after you file your answer with the clerk. Find out more at TexasLawHelp.org.”

TEX. R. CIV. P. 99(a)-(c). Additionally, Rule 239 provides that

[u]pon such call of the docket, or at any time after a defendant is required to answer, the plaintiff
may in term time take judgment by default against such defendant if he has not previously filed an
answer, and provided that the return of service shall have been on file with the clerk for the length
of time required by Rule 107.

TEX. R. CIV. P. 239.
Although these rules authorize no-answer default judgments under some circumstances,
nothing in these rules relieves a trial court of its mandatory duty under Article 55.02(c) to notify
the agencies named in an expunction petition of the expunction hearing. See Deck, 954 S.W.2d
at 112; In re M.M.M., 428 S.W.3d 389, 395 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied) (we construe statutes so as to harmonize them with other relevant laws if possible).
Moreover, even if the rules could relieve a court of this duty, they do not do so in this case.
Service of process that does not strictly comply with the rules’ requirements is invalid and of no
effect. Spanton v. Bellah, 612 S.W.3d 314, 317 (Tex. 2020). A no-answer default judgment
cannot stand when the defendant was not served in strict compliance with the applicable
requirements. Id. at 316. Here, the record shows that the notice to DPS does not contain the
language required by Rule 99(c) or any notification of a possible default judgment as required by
Rule 99(b)(12). Because DPS was not served in strict compliance with Rule 99, the trial court’s
no-answer default judgment cannot stand. See id. at 316-17.

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 For the reasons above, we sustain DPS’s first issue.

EVIDENTIARY SUFFICIENCY
In DPS’s second issue, it argues that we should reverse the trial court’s judgment and
render judgment denying the expunction because C.G.B. failed to present legally sufficient
evidence to support his petition, and the trial court misinterpreted the expunction statute to allow
the arrest records’ destruction when the arrest resulted in a final conviction.
Standard of Review and Applicable Law
We review a trial court’s order granting or denying expunction for an abuse of discretion.
See Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet.
denied). A trial court abuses its discretion if it acts without reference to any guiding rules or
principles. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
However, if an expunction ruling turns on a question of law, we review it de novo because a trial
court has no discretion in determining what the law is or applying the law to the facts. See
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Thus, a trial court abuses its discretion if it
misinterprets or misapplies the law. Id.
Although the law that governs expunctions is part of the code of criminal procedure, an
expunction proceeding is civil in nature. T.S.N., 547 S.W. 3d at 619. Expunction is not a
constitutional or common law right, but purely a statutory privilege. Tex. Dep’t of Pub. Safety v.
Nail, 305 S.W.3d 673, 675 (Tex. App.—Austin 2010, no pet.). The trial court must strictly
comply with the statutory requirements and has no equitable power to extend the clear meaning
of the statute. Harris Cty. Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston
[14th Dist.] 1997, no pet.). To be entitled to an expunction, C.G.B. had the burden of proving
that all of the statutory requirements were satisfied. Ex parte Green, 373 S.W.3d 111, 113 (Tex.
App.—San Antonio 2012, no pet.).
When reviewing a challenge to the legal sufficiency of the evidence, we review the
evidence in the light most favorable to the judgment, crediting favorable evidence if reasonable
jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller
v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We will sustain a legal sufficiency complaint if the
record reveals (1) the complete absence of a vital fact, (2) the court is barred by rules of law or
evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence

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offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively
establishes the opposite of the vital fact. See id. at 810.
Article 55.01 of the code of criminal procedure provides 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:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c);

(B) convicted and subsequently:

(i) pardoned for a reason other than that described by Subparagraph (ii); or

(ii) pardoned or other wise granted relief on the bases of actual innocence with respect to that
offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order
was granted or rendered on the basis of the person’s actual innocence; or

(C) convicted of an offense committed before September 1, 2021, under Section 46.02(a), Penal
Code, as that section existed before that date; or

(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 Chapter 42A 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 periods 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;

(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:

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 (a) the person completed a veterans treatment court program created under Chapter 124,
Government Code, or former law, subject to Subsection (a-3);

(b) the person completed a mental health court program created under Chapter 125, Government
Code, or former law, subject to Subsection (a-4);

(c) the person completed a pretrial intervention program authorized under Section 76.011,
Government Code, other than a veterans treatment court program created under Chapter 124,
Government Code, or former law, or a mental health court program created under Chapter 125,
Government Code, or former law;

(d) 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 that person committed
the offense; or

(e) 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. 55.01(a) (West Supp. 2020).
Analysis
In his petition, C.G.B. requested expunction of all records related to his arrest, citing
Article 55.01 generally and naming the following reasons:

4. On or about May 10, 2001, Nacogdoches Police Department arrested Petitioner for the Class B
misdemeanor offense of MAKE ALCOHOL AVAILABLE TO MINOR.

5. The arrest detailed above gave rise to Cause Number 858-01 in the County Court at Law of
Nacogdoches County, Texas.

6. Petitioner’s case was REDUCED to a CLASS C Disorderly Conduct on November 12, 2001.

7. Petitioner was assessed a $100 fine. The judge did not order an Article 42.12, Tex. Code Crim.
Proc., court ordered supervision. No conditional discharge was ordered under Article 4.12 of the
Texas Controlled Substances Act. Petitioner has never been convicted of a felony in the five years
preceding the date of arrest.

The agreed order of expunction, signed on June 4, states in pertinent part as follows:

Having considered the pleadings and other documents on file herein, the Court finds that it has
jurisdiction over the instant cause and the parties thereto; and that the respondents have been duly
served with the petition; and that all procedural and substantive requirements for expunction of the
below specified criminal records have been met.

Petitioner’s full legal name is [C.G.B.]. Petitioner is a WHITE MALE, whose date of birth is [date
of birth]. His Texas driver’s license number is [XXXXXXXX] and his social security number is
[XXX-XX-XXXX]. Petitioner’s address at the time of arrest was [address].

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 Petitioner was arrested on or about MAY 10, 2001 for the Misdemeanor Offense of MAKE
ALCOHOL AVAILABLE TO A MINOR, in Cause No. 858-01 in County Court at Law of
Nacogdoches County, Texas. Petitioner’s case was reduced to a Class C Disorderly Conduct on
November 12, 2001.

THEREFORE, it is hereby ORDERED, ADJUDGED and DECREED that:

(1) the petition for expunction filed in the above-captioned cause is GRANTED[.]

In DPS’s motion for new trial, it argued that (1) the expunction order must be set aside
because it was not notified of the June 4 hearing, and (2) C.G.B. was not entitled to expunction
of any charges stemming from the arrest because he was convicted of an offense based on the
arrest. 1 DPS made the same arguments at the hearing on the motion. Regarding DPS’s first
argument, C.G.B. argued that the trial court acted within its discretion by signing the agreed
expunction order because the district attorney was in agreement and no party filed an objection
by the Monday following the twentieth day after it was notified of the hearing date. Regarding
DPS’s second argument, C.G.B. did not argue that he was statutorily entitled to expunction, but
that the court should not consider the issue because DPS did not file a timely answer. In its final
argument, DPS reasserted both of its arguments. The court responded as follows:

All right. Well, here’s—here’s what I find. I find that DPS was wholly in default for failing to
timely file an answer; and, therefore, I’m going to deny the Motion for New Trial. All right?

The hearing was then adjourned.
On appeal, C.G.B. again does not argue that he was statutorily entitled to expunction, but
he now argues that DPS waived the issue by not objecting to the trial court’s failure to address it
at the hearing on the motion for new trial. We disagree. In a civil nonjury case, a complaint
regarding the sufficiency of the evidence may be made for the first time on appeal in the
complaining party’s brief. TEX. R. APP. P. 33.1(d); Collin Cty. Dist. Attorney’s Office v.
Fourrier, 453 S.W.3d 536, 539 (Tex. App.—Dallas 2014, no pet.) (appeals court reviewed
sufficiency of evidence supporting expunction order over appellee’s argument that the error was
not preserved). Therefore, we consider whether C.G.B. met his burden of establishing his
entitlement to expunction. See id.; see also Green, 373 S.W.3d at 113. We conclude he did not.

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But see Ex parte R.P.G.P., 623 S.W.3d 313, 325 (Tex. 2021) (Article 55.01(a)(2) is offense-based
regarding misdemeanors, not arrest-based).

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 The record does not contain legally sufficient evidence to support the expunction order.
The petition does not specify a statutory basis within Article 55.01 to justify the expunction
order. The record contains no evidence supporting the expunction and no indication that any
evidence was taken prior to the trial court’s signing the agreed order of expunction. The agreed
order does not specify a statutory basis for expunction but merely states that “all procedural and
substantive requirements for expunction of the below specified criminal records have been met.”
The record of the hearing on the motion for new trial does not indicate a statutory basis for the
expunction. Rather, the trial court stated during the hearing, “If two sides agree after the deadline
has passed for one other party to file an answer—if two sides in that lawsuit say, sure, we agree,
than I can sign an agreed judgment. That’s exactly what I did in this situation.” The record does
not specify the facts on which the parties agreed, and the facts named in the agreed order do not
alone support the expunction. Under these circumstances, we cannot conclude that C.G.B. met
his burden of establishing his entitlement to expunction. See Green, 373 S.W.3d at 113.
Therefore, we sustain DPS’s second issue.
However, we do not grant DPS’s requested relief of rendering judgment denying
C.G.B.’s expunction petition. C.G.B.’s failure to present evidence supporting an expunction
order may be explained by his reliance on the theory that he was entitled to the order because the
district attorney agreed to it and DPS failed to file a timely answer. See Ex parte Andrews, 955
S.W.2d 178, 180 (Tex. App.—Waco 1997, no pet.) (Andrews’s failure to present evidence
justifying expunction order was explained by his reliance on theory he was entitled to order
because state agreed to it). Therefore, in the interests of justice, we remand the cause so that the
record can be fully developed regarding C.G.B.’s rights under Article 55.01. See id.; TEX. R.
APP. P. 43.3(b).

DISPOSITION
Having sustained DPS’s first and second issues, we reverse the trial court’s judgment
granting C.G.B.’s petition for expunction and remand the case for further proceedings consistent
with this opinion.
JAMES T. WORTHEN
Chief Justice

Opinion delivered September 15, 2021.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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 COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

SEPTEMBER 15, 2021

NO. 12-20-00169-CV

EX PARTE: C.G.B.

Appeal from the 145th District Court
of Nacogdoches County, Texas (Tr.Ct.No. C2035672)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, because it is the opinion of this Court that there was error
in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this Court that
the judgment be reversed and the cause remanded to the trial court for further proceedings in
accordance with the opinion of this Court; and that this decision be certified to the court below
for observance.
James T. Worthen, Chief Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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