NUMBER 13-21-00308-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE A.T.R.
On appeal from the 445th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Justice Tijerina
Appellant the Texas Department of Public Safety (DPS) appeals the trial court’s
order expunging records and files relating to a possession of marijuana charge against
appellee A.T.R. See TEX. HEALTH & SAFETY CODE ANN. § 481.121. By its sole issue, DPS
contends that the trial court erroneously expunged A.T.R.’s arrest record because A.T.R.
was not entitled to have his records expunged.1 We reverse and render.
1 A.T.R. did not file a brief to assist us in the resolution of this matter. I. BACKGROUND
On July 12, 2006, A.T.R. was arrested and charged by information with possession
of marijuana, a Class B Misdemeanor. See id. Pursuant to a plea agreement, A.T.R.
pleaded guilty to the offense, and he was placed on deferred adjudication community
supervision for a period of twelve months. After successfully completing community
supervision, the trial court discharged him from community supervision on October 22,
2018. The State then dismissed the charge.
On March 5, 2021, A.T.R. filed a petition for expunction of records and files
pertaining to his arrest pursuant to Texas Code of Criminal Procedure Article 55.01(a)(2).
See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). In his petition, A.T.R. incorrectly stated
that “no indictment or information was presented against [A.T.R.].” A.T.R. attached a copy
of the “State’s Motion to Dismiss” the charge against him, which noted that the State was
seeking dismissal because “[t]he evidence is insufficient” and “in the interest of justice.”
DPS filed an answer asserting that, because A.T.R. was charged, pleaded guilty, and
received deferred adjudication community supervision for the charge, he was not entitled
to have records expunged under Article 55.01(a)(2). Copies of the charging instrument
and the order discharging A.T.R. from community supervision were attached to DPS’s
answer.
The trial court held a hearing. DPS did not appear. Following a hearing, the trial
court ordered that the records pertaining to A.T.R.’s arrest be expunged. This appeal
followed.
2 II. RESTRICTED APPEAL
A restricted appeal is a direct attack on a judgment or order which is available
under certain conditions. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam). To sustain a proper restricted appeal, DPS must prove: (1) it
filed notice of the restricted appeal within six months after the judgment was signed; (2)
it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted
in the judgment complained of, and it did not timely file any post-judgment motions or
requests for findings of fact and 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) (per curiam) (citing
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)); Ex parte E.H., 602
S.W.3d 486, 495 (Tex. 2020); see also TEX. R. APP. P. 30.
“[A]lthough the first three requirements for a restricted appeal are jurisdictional, the
fourth is not. An appellant who satisfies the first three requirements establishes the court’s
jurisdiction and must then establish error from the face of the record to prevail in the
restricted appeal.” Ex parte E.H., 602 S.W.3d at 497. Here, the record conclusively
establishes the three jurisdictional requirements for a restricted appeal. See id. First, the
trial court signed the expunction order on May 25, 2021,2 and DPS filed its notice of
restricted appeal on September 24, 2021, which was within six months after the order
was signed. See Pike-Grant, 447 S.W.3d at 886. Second, DPS was a party to the
underlying lawsuit. See id. And third, DPS did not participate in the hearing on A.T.R.’s
petition for expunction. See id. Therefore, we have jurisdiction in this appeal.
2 We note the order incorrectly lists the date as May 25, 2020. However, the record provides that the trial court signed the order on May 25, 2021.
3 III. EXPUNCTION
DPS contends that A.T.R. failed to establish that he was entitled to expunction
because A.T.R. pleaded guilty to a charge resulting from the arrest, and he was placed
on community supervision. We agree with DPS.
A. Standard of Review
A trial court’s ruling on a petition for expunction is reviewed for an abuse of
discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). A trial court abuses its
discretion if it acts arbitrarily or unreasonably without reference to guiding rules and
principles of law. Id. Under this standard, we afford no deference to the trial court’s legal
determinations, recognizing that the trial court has no discretion in deciding what the law
is or in applying it to the facts. Id. Thus, a trial court’s legal conclusions are reviewed de
novo. Id. When conducting our review, however, we may not substitute our judgment for
that of the trial court with respect to resolution of factual issues committed to the trial
court’s discretion. In re A.G., 388 S.W.3d 759, 761 (Tex. App.—El Paso 2012, no pet.).
B. 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). A person who
has been placed under arrest for commission of either a felony or misdemeanor is entitled
to have all records and files relating to the arrest expunged if “the person has been
released and the charge, if any, has not resulted in a final conviction is no longer pending
and there was no court-ordered community supervision under Chapter 42A for the
offense.” TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). To qualify for the privilege, the
petitioner must prove he has met all the statutory requirements. Tex. Dep’t of Pub. Safety
4 v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Ex parte
Guajardo, 70 S.W.3d 202, 205 (Tex. App.—San Antonio 2001, no pet.). “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.” Ex parte R.P.G.P., 623 S.W.3d at 316.
C. Analysis
It was A.T.R.’s burden to prove he met the statutory requirements. See J.H.J., 274
S.W.3d at 806. The face of the record shows that A.T.R. pleaded guilty to the offense for
which he was arrested and was ordered to participate in community supervision under
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NUMBER 13-21-00308-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE A.T.R.
On appeal from the 445th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Chief Justice Contreras and Justices Longoria and Tijerina Memorandum Opinion by Justice Tijerina
Appellant the Texas Department of Public Safety (DPS) appeals the trial court’s
order expunging records and files relating to a possession of marijuana charge against
appellee A.T.R. See TEX. HEALTH & SAFETY CODE ANN. § 481.121. By its sole issue, DPS
contends that the trial court erroneously expunged A.T.R.’s arrest record because A.T.R.
was not entitled to have his records expunged.1 We reverse and render.
1 A.T.R. did not file a brief to assist us in the resolution of this matter. I. BACKGROUND
On July 12, 2006, A.T.R. was arrested and charged by information with possession
of marijuana, a Class B Misdemeanor. See id. Pursuant to a plea agreement, A.T.R.
pleaded guilty to the offense, and he was placed on deferred adjudication community
supervision for a period of twelve months. After successfully completing community
supervision, the trial court discharged him from community supervision on October 22,
2018. The State then dismissed the charge.
On March 5, 2021, A.T.R. filed a petition for expunction of records and files
pertaining to his arrest pursuant to Texas Code of Criminal Procedure Article 55.01(a)(2).
See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). In his petition, A.T.R. incorrectly stated
that “no indictment or information was presented against [A.T.R.].” A.T.R. attached a copy
of the “State’s Motion to Dismiss” the charge against him, which noted that the State was
seeking dismissal because “[t]he evidence is insufficient” and “in the interest of justice.”
DPS filed an answer asserting that, because A.T.R. was charged, pleaded guilty, and
received deferred adjudication community supervision for the charge, he was not entitled
to have records expunged under Article 55.01(a)(2). Copies of the charging instrument
and the order discharging A.T.R. from community supervision were attached to DPS’s
answer.
The trial court held a hearing. DPS did not appear. Following a hearing, the trial
court ordered that the records pertaining to A.T.R.’s arrest be expunged. This appeal
followed.
2 II. RESTRICTED APPEAL
A restricted appeal is a direct attack on a judgment or order which is available
under certain conditions. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam). To sustain a proper restricted appeal, DPS must prove: (1) it
filed notice of the restricted appeal within six months after the judgment was signed; (2)
it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted
in the judgment complained of, and it did not timely file any post-judgment motions or
requests for findings of fact and 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) (per curiam) (citing
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)); Ex parte E.H., 602
S.W.3d 486, 495 (Tex. 2020); see also TEX. R. APP. P. 30.
“[A]lthough the first three requirements for a restricted appeal are jurisdictional, the
fourth is not. An appellant who satisfies the first three requirements establishes the court’s
jurisdiction and must then establish error from the face of the record to prevail in the
restricted appeal.” Ex parte E.H., 602 S.W.3d at 497. Here, the record conclusively
establishes the three jurisdictional requirements for a restricted appeal. See id. First, the
trial court signed the expunction order on May 25, 2021,2 and DPS filed its notice of
restricted appeal on September 24, 2021, which was within six months after the order
was signed. See Pike-Grant, 447 S.W.3d at 886. Second, DPS was a party to the
underlying lawsuit. See id. And third, DPS did not participate in the hearing on A.T.R.’s
petition for expunction. See id. Therefore, we have jurisdiction in this appeal.
2 We note the order incorrectly lists the date as May 25, 2020. However, the record provides that the trial court signed the order on May 25, 2021.
3 III. EXPUNCTION
DPS contends that A.T.R. failed to establish that he was entitled to expunction
because A.T.R. pleaded guilty to a charge resulting from the arrest, and he was placed
on community supervision. We agree with DPS.
A. Standard of Review
A trial court’s ruling on a petition for expunction is reviewed for an abuse of
discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). A trial court abuses its
discretion if it acts arbitrarily or unreasonably without reference to guiding rules and
principles of law. Id. Under this standard, we afford no deference to the trial court’s legal
determinations, recognizing that the trial court has no discretion in deciding what the law
is or in applying it to the facts. Id. Thus, a trial court’s legal conclusions are reviewed de
novo. Id. When conducting our review, however, we may not substitute our judgment for
that of the trial court with respect to resolution of factual issues committed to the trial
court’s discretion. In re A.G., 388 S.W.3d 759, 761 (Tex. App.—El Paso 2012, no pet.).
B. 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). A person who
has been placed under arrest for commission of either a felony or misdemeanor is entitled
to have all records and files relating to the arrest expunged if “the person has been
released and the charge, if any, has not resulted in a final conviction is no longer pending
and there was no court-ordered community supervision under Chapter 42A for the
offense.” TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). To qualify for the privilege, the
petitioner must prove he has met all the statutory requirements. Tex. Dep’t of Pub. Safety
4 v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Ex parte
Guajardo, 70 S.W.3d 202, 205 (Tex. App.—San Antonio 2001, no pet.). “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.” Ex parte R.P.G.P., 623 S.W.3d at 316.
C. Analysis
It was A.T.R.’s burden to prove he met the statutory requirements. See J.H.J., 274
S.W.3d at 806. The face of the record shows that A.T.R. pleaded guilty to the offense for
which he was arrested and was ordered to participate in community supervision under
code of criminal procedure Chapter 42A; therefore, the statute expressly excludes him
from the privilege of expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)
(requiring there be “no court-ordered community supervision under Chapter 42A for the
offense” to obtain relief); J.H.J., 274 S.W.3d at 809 (“[W]e hold that a person’s release
from the ‘penalties and disabilities’ of a criminal offense does not entitle that person to
expunction, which is a civil privilege granted to eligible citizens.”).
Nevertheless, the trial court granted A.T.R.’s petition. See Ex parte R.P.G.P., 623
S.W.3d at 316 (citing Ex parte E.H., 602 S.W.3d at 489) (addressing expunction and
stating that “the statutory requirements [under article 55.01] are mandatory and exclusive
and cannot be equitably expanded by the courts”). The trial court had no discretion “to
extend the expunction statute beyond its stated availability.” J.H.J., 274 S.W.3d at 811;
see Ex parte E.H., 602 S.W.3d at 489; see also Ex parte Vega, 510 S.W.3d 544, 551
(Tex. App.—Corpus Christi–Edinburg 2016, no pet.) (providing that a petitioner is not
5 entitled to expunction if the petitioner received community supervision for any charge
stemming from an arrest).
Having reviewed the entire record, we conclude the trial court’s order granting
A.T.R.’s petition for expunction did not comply with Article 55.01(a)(2), and it was an
abuse of discretion. See Ex parte E.H., 602 S.W.3d at 489. The trial court’s expunction
order constitutes error on the face of the record. See TEX. R. APP. P. 30; Ex parte E.H.,
602 S.W.3d at 495; Pike-Grant, 447 S.W.3d at 886. We sustain DPS’s sole issue.
IV. CONCLUSION
We reverse the trial court’s order expunging A.T.R.’s criminal records and render
judgment denying expunction.
JAIME TIJERINA Justice
Delivered and filed on the 8th day of September, 2022.