NUMBER 13-12-00683-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE ERIKA RIVERA
On appeal from the 107th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Garza
Appellant, the Texas Department of Public Safety (“DPS”), brings this restricted
appeal from the trial court's order expunging the arrest of appellee, Erika Rivera, from
all public records. Appellee has not filed a brief to assist in the disposition of this
appeal. By a single issue, DPS contends that the trial court's expunction order was not
supported by legally sufficient evidence. We reverse and render. I. BACKGROUND
On March 12, 2012, Rivera filed an ex parte petition to expunge public records of
her arrest for criminal mischief, a class B misdemeanor. See TEX. PENAL CODE ANN.
§ 28.03 (West 2009); Rivera identified several entities that may be in possession of
records or files pertaining to her arrest. See TEX. CODE CRIM. PROC. ANN. art. 55.02,
§ 2(a), (b)(8) (West 2006) (in an ex parte petition for expunction; requiring petitioner to
name agencies that may have files subject to expunction). Rivera identified, among
other entities, the Brownsville Police Department, the Cameron County District Attorney,
and DPS. Rivera’s petition states that she was charged with criminal mischief, for which
she received a sentence of six months deferred-adjudication community supervision,
and she asked for the charge to be expunged from her record.
The trial court set a hearing on Rivera's petition for May 21, 2012. Pursuant to
article 55.02 of the Texas Code of Criminal Procedure, the trial court sent notice of the
petition and the hearing date to all the parties listed in the petition. See id. art. 55.02,
§ 2(c). DPS filed an answer claiming that Rivera was not entitled to expunction
because she received a sentence of six months deferred-adjudication community
supervision for her offense.
A Cameron County assistant district attorney appeared on behalf of the State,
arguing that because Rivera pleaded guilty and received deferred-adjudication
community supervision, she was not entitled to expunction. Rivera’s counsel countered
that hers was both an “exceptional” and “humanitarian” case. On May 21, 2012, the trial
court ordered all of Rivera's records pertaining to the arrest expunged.
2 DPS did not file a motion for new trial or other post-judgment motion. On
November 5, 2012, DPS filed a notice of restricted appeal, stating that it is a party
affected by the expunction order. See TEX. R. APP. P. 26.1(c) (notice of restricted
appeal may be filed within six months after judgment or order is signed); TEX. R. APP. P.
30.
II. RESTRICTED APPEAL
To attack an order by restricted appeal, the appellant must show: (1) it was a
party who did not participate in the hearing that resulted in the judgment complained of;
(2) it filed a notice of appeal within six months after the order was signed; (3) it did not
timely file a post-judgment motion or request findings of fact and conclusions of law; and
(4) error is apparent on the face of the record. TEX. R. APP. P. 26.1(c), 30; Bazan v.
Canales, 200 S.W.3d 844, 846–47 (Tex. App.—Corpus Christi 2006, no pet.); see also
State Bd. for Educator Certification v. Gonzalez, No. 13-02-00463-CV, 2003 Tex. App.
LEXIS 7223, at *4 (Tex. App.—Corpus Christi Aug. 25, 2003, no pet.).
With regard to the first requirement, DPS is a state agency that may have
records pertaining to arrests, as is made apparent by the statutory requirement that
DPS be notified of a final order expunging records. TEX. CODE CRIM. PROC. ANN. art.
55.02 § 3(c); see Tex. Dep’t of Pub. Safety v. Moore, 51 S.W.3d 355, 357 (Tex. App.—
Tyler 2001, no pet.). Although article 2.01 of the Texas Code of Criminal Procedure
states that the district attorney represents the State in criminal cases, at an expunction
hearing, each law enforcement agency is entitled to represent itself. Tex. Dep't of Pub.
Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. App.—Houston [1st Dist.] 1994, no
writ); see TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2 (stating that “such entity may be
3 represented by the attorney responsible for providing such agency with legal
representation in other matters”). Here, the district attorney was the only attorney who
appeared for the state and nothing in the record demonstrates that the district attorney
was acting on behalf of DPS. The record shows, therefore, that DPS was a party who
did not participate in the hearing giving rise to the expunction order. See Moore, 51
S.W.3d at 357; Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 111 (Tex. App.—
San Antonio 1997, no writ); see also Tex. Dep't of Pub. Safety v. Olivares, No. 13–06–
035–CV at *3, 2007 Tex. App. LEXIS 5904, at *6–10 (Tex. App.—Corpus Christi July
26, 2007, no pet.) (mem. op.).
With regard to the second and third requirements, the record further reflects that
DPS filed a notice of restricted appeal within six months of the expunction order, and it
did not file any post-judgment motions. Accordingly, DPS satisfied the first three
requirements for a restricted appeal. See TEX. R. APP. P. 26.1(c); TEX. R. APP. P. 30.
We now turn to the alleged error which the state must show is apparent on the face of
the records to satisfy the fourth requirement for restricted appeals.
III. SUFFICIENCY OF THE EVIDENCE
By its sole issue, DPS contends that the trial court erred in granting Rivera's
petition for expunction because Rivera failed to establish, by legally sufficient evidence,
that she had satisfied the statutory requirements for expunction.
A. Standard of Review
In restricted appeals, we are limited to considering only errors that are apparent
on the face of the record. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d
269, 270 (Tex. 1997) (per curiam); see also Gonzalez, 2003 Tex. App. LEXIS 7223, at
4 *5. The “face of the record” includes all papers on file in the appeal and the reporter's
record, if any. Norman Commc'ns, 955 S.W.2d at 270. A restricted appeal affords the
appellant the same scope of review as an ordinary appeal—in other words, the entire
case. Id. DPS has challenged the legal sufficiency of the evidence supporting the
expunction order, which we may review in a restricted appeal. Id.
In conducting a legal sufficiency review, we “view the evidence in the light
favorable to the verdict, 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, 827 (Tex. 2005). We will sustain a no-evidence
challenge when the record shows that (1) there is a complete absence of a vital fact,
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NUMBER 13-12-00683-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE ERIKA RIVERA
On appeal from the 107th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Chief Justice Valdez and Justices Garza and Perkes Memorandum Opinion by Justice Garza
Appellant, the Texas Department of Public Safety (“DPS”), brings this restricted
appeal from the trial court's order expunging the arrest of appellee, Erika Rivera, from
all public records. Appellee has not filed a brief to assist in the disposition of this
appeal. By a single issue, DPS contends that the trial court's expunction order was not
supported by legally sufficient evidence. We reverse and render. I. BACKGROUND
On March 12, 2012, Rivera filed an ex parte petition to expunge public records of
her arrest for criminal mischief, a class B misdemeanor. See TEX. PENAL CODE ANN.
§ 28.03 (West 2009); Rivera identified several entities that may be in possession of
records or files pertaining to her arrest. See TEX. CODE CRIM. PROC. ANN. art. 55.02,
§ 2(a), (b)(8) (West 2006) (in an ex parte petition for expunction; requiring petitioner to
name agencies that may have files subject to expunction). Rivera identified, among
other entities, the Brownsville Police Department, the Cameron County District Attorney,
and DPS. Rivera’s petition states that she was charged with criminal mischief, for which
she received a sentence of six months deferred-adjudication community supervision,
and she asked for the charge to be expunged from her record.
The trial court set a hearing on Rivera's petition for May 21, 2012. Pursuant to
article 55.02 of the Texas Code of Criminal Procedure, the trial court sent notice of the
petition and the hearing date to all the parties listed in the petition. See id. art. 55.02,
§ 2(c). DPS filed an answer claiming that Rivera was not entitled to expunction
because she received a sentence of six months deferred-adjudication community
supervision for her offense.
A Cameron County assistant district attorney appeared on behalf of the State,
arguing that because Rivera pleaded guilty and received deferred-adjudication
community supervision, she was not entitled to expunction. Rivera’s counsel countered
that hers was both an “exceptional” and “humanitarian” case. On May 21, 2012, the trial
court ordered all of Rivera's records pertaining to the arrest expunged.
2 DPS did not file a motion for new trial or other post-judgment motion. On
November 5, 2012, DPS filed a notice of restricted appeal, stating that it is a party
affected by the expunction order. See TEX. R. APP. P. 26.1(c) (notice of restricted
appeal may be filed within six months after judgment or order is signed); TEX. R. APP. P.
30.
II. RESTRICTED APPEAL
To attack an order by restricted appeal, the appellant must show: (1) it was a
party who did not participate in the hearing that resulted in the judgment complained of;
(2) it filed a notice of appeal within six months after the order was signed; (3) it did not
timely file a post-judgment motion or request findings of fact and conclusions of law; and
(4) error is apparent on the face of the record. TEX. R. APP. P. 26.1(c), 30; Bazan v.
Canales, 200 S.W.3d 844, 846–47 (Tex. App.—Corpus Christi 2006, no pet.); see also
State Bd. for Educator Certification v. Gonzalez, No. 13-02-00463-CV, 2003 Tex. App.
LEXIS 7223, at *4 (Tex. App.—Corpus Christi Aug. 25, 2003, no pet.).
With regard to the first requirement, DPS is a state agency that may have
records pertaining to arrests, as is made apparent by the statutory requirement that
DPS be notified of a final order expunging records. TEX. CODE CRIM. PROC. ANN. art.
55.02 § 3(c); see Tex. Dep’t of Pub. Safety v. Moore, 51 S.W.3d 355, 357 (Tex. App.—
Tyler 2001, no pet.). Although article 2.01 of the Texas Code of Criminal Procedure
states that the district attorney represents the State in criminal cases, at an expunction
hearing, each law enforcement agency is entitled to represent itself. Tex. Dep't of Pub.
Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. App.—Houston [1st Dist.] 1994, no
writ); see TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2 (stating that “such entity may be
3 represented by the attorney responsible for providing such agency with legal
representation in other matters”). Here, the district attorney was the only attorney who
appeared for the state and nothing in the record demonstrates that the district attorney
was acting on behalf of DPS. The record shows, therefore, that DPS was a party who
did not participate in the hearing giving rise to the expunction order. See Moore, 51
S.W.3d at 357; Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 111 (Tex. App.—
San Antonio 1997, no writ); see also Tex. Dep't of Pub. Safety v. Olivares, No. 13–06–
035–CV at *3, 2007 Tex. App. LEXIS 5904, at *6–10 (Tex. App.—Corpus Christi July
26, 2007, no pet.) (mem. op.).
With regard to the second and third requirements, the record further reflects that
DPS filed a notice of restricted appeal within six months of the expunction order, and it
did not file any post-judgment motions. Accordingly, DPS satisfied the first three
requirements for a restricted appeal. See TEX. R. APP. P. 26.1(c); TEX. R. APP. P. 30.
We now turn to the alleged error which the state must show is apparent on the face of
the records to satisfy the fourth requirement for restricted appeals.
III. SUFFICIENCY OF THE EVIDENCE
By its sole issue, DPS contends that the trial court erred in granting Rivera's
petition for expunction because Rivera failed to establish, by legally sufficient evidence,
that she had satisfied the statutory requirements for expunction.
A. Standard of Review
In restricted appeals, we are limited to considering only errors that are apparent
on the face of the record. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d
269, 270 (Tex. 1997) (per curiam); see also Gonzalez, 2003 Tex. App. LEXIS 7223, at
4 *5. The “face of the record” includes all papers on file in the appeal and the reporter's
record, if any. Norman Commc'ns, 955 S.W.2d at 270. A restricted appeal affords the
appellant the same scope of review as an ordinary appeal—in other words, the entire
case. Id. DPS has challenged the legal sufficiency of the evidence supporting the
expunction order, which we may review in a restricted appeal. Id.
In conducting a legal sufficiency review, we “view the evidence in the light
favorable to the verdict, 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, 827 (Tex. 2005). We will sustain a no-evidence
challenge when the record shows that (1) there is a complete absence of a vital fact,
(2) the court is barred from considering the only evidence offered to prove a vital fact,
(3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the
evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert
W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV.
361, 362–63 (1960)); Tex. Dep’t of Pub. Safety v. Williams, 76 S.W.3d 647, 649 (Tex.
App.—Corpus Christi 2002, no pet.).
B. Expunction Requirements
“The expunction statute was created to allow persons wrongfully charged to
expunge their arrest records.” Williams, 76 S.W.3d at 650 (citing Tex. Dep't of Pub.
Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.—Corpus Christi 1997, no writ); State
v. Knight, 813 S.W.2d 210, 212 (Tex. App.—Houston [14th Dist.] 1991, no writ)). The
petitioner has the burden of proving that all statutory requirements have been satisfied
in order to be entitled to expunction. Williams, 76 S.W.3d at 650 (citing Butler, 941
5 S.W.2d at 321; Ex parte Scott, 818 S.W.2d 226, 227 (Tex. App.—Corpus Christi 1991,
no writ)). The trial court must strictly comply with the statutory procedures for
expunction, and it commits reversible error when it fails to comply. Ex parte Stiles, 958
S.W.2d 414, 418 (Tex. App.—Waco 1997, pet. denied). Courts have no equitable
power to extend the expunction statute. Williams, 76 S.W.3d at 650.
The code of criminal procedure allows for expunction under certain specific
circumstances. See TEX. CODE CRIM. PROC. ANN. art. 55.01. When a petitioner, such as
Rivera, has not been acquitted of the offense to be expunged or convicted and
subsequently pardoned, that petitioner must demonstrate that “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 Article 42.12 for
the offense, unless the offense is a Class C misdemeanor . . . .” Id. art. 55.01(a)(2).
Under this provision, a petitioner must demonstrate that he or she did not receive court-
ordered community supervision under Texas Code of Criminal Procedure article 42.12,
which includes deferred-adjudication community supervision. Butler, 941 S.W.2d at
321; see TEX. CODE CRIM. PROC. ANN. art. 42.12; id. at art. 55.01. Prior to the 1989
amendments to the code of criminal procedure, article 55.01(a)(2)(B) mandated that in
order for the petitioner to be entitled to an expunction, the petitioner had to prove that he
or she had not been placed on “community supervision.” See Act of May 27, 1979, 66th
Leg., R.S., ch. 604, § 1, 1979 TEX. GEN. LAWS 1333, 1333. Courts construing the
statute after the 1989 amendments determined that deferred-adjudication community
supervision constitutes “court ordered probation” for purposes of article 55.01(a)(2)(B)
and thus renders a defendant ineligible to expunge his or her arrest. Butler, 941 S.W.2d
6 318, 321; State v. Knight, 813 S.W.2d 210, 212 (Tex. App.—Houston [14th Dist.] 1991,
no writ).
In State v. Knight, the Fourteenth Court of Appeals noted the different wording
between the old and new versions of the statute and found that the earlier case law on
“court ordered supervision” is no longer valid. Knight, 813 S.W.2d at 212. The court
held that “court ordered probation” encompasses deferred-adjudication community
supervision whether or not the trial court imposes explicit conditions on the petitioner.
Id. The expunction statute was “not intended to allow a person who is arrested, pleads
guilty to an offense, and receives probation after pleading guilty, to expunge his record.”
Id.; see Harris County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.
1991); 43B GEORGE E. DIX & ROBERT O. DAWSON, TEXAS PRACTICE: CRIMINAL PRACTICE &
PROCEDURE §§ 48.29–.30, at 277 (2d ed. 2001) (acknowledging general “rule that one is
not entitled to expunction upon successful completion of a term of deferred
adjudication”).
C. Analysis
DPS contends that the trial court erred in granting Rivera's petition for expunction
because she presented no evidence to satisfy the statutory requirements for
expunction—in particular, there is no evidence in the record demonstrating that Rivera
did not receive community supervision. We agree.
It is well settled that the petitioner has the burden of proving that all statutory
requirements have been satisfied in order to be entitled to expunction. Williams, 76
S.W.3d at 650–51. Rivera admitted in her petition that she “was placed on deferred
adjudication [community supervision] for six months.” Rivera’s statement that she was
7 placed on deferred-adjudication community supervision for six months is a judicial
admission. See Mendoza v Fidelity & Guar. Ins., 606 S.W.2d 692, 694 (Tex. 1980); see
also Mapco, Inc. v. Carter, 817 S.W.2d 686, 687 (Tex. 1991) (per curiam) (a judicial
admission must be a clear, deliberate, and unequivocal statement); Griffin v. Superior
Ins. Co., 338 S.W.2d 415, 419 (Tex. 1960). A judicial admission is conclusive upon the
party making it, and it relieves the opposing party’s burden of proving the admitted fact
and bars the admitting party from disputing it. Gevinson v. Manhattan Constr. Co. of
Okla., 449 S.W.2d 458, 467 (Tex.1969); MCCORMICK & RAY, TEXAS LAW OF EVIDENCE §
1127 (2d ed. 1956).
Under these circumstances, we believe that the evidence conclusively
establishes that Rivera received deferred-adjudication community supervision for her
offense, and as a result, the evidence is legally insufficient to support her eligibility for
expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); City of Keller, 168
S.W.3d at 810; see also Tex. Dep't of Pub. Safety v. Lopez, No. 13-05-619-CV, 2007
Tex. App. LEXIS 5341, at *4 (Tex. App.—Corpus Christi July 5, 2007, no pet.) (mem.
op.). The error is apparent on the face of the record; therefore, we sustain DPS’s issue.
See Tex. Dep't of Pub. Safety v. Six, 25 S.W.3d 368, 370 (Tex. App.—Fort Worth 2000,
no pet.); see also Tex. Dep't of Pub. Safety v. Shipp, No. 05-05-01421-CV, 2006 Tex.
App. LEXIS 2361, at *4–7 (Tex. App.—Dallas Mar. 29, 2006, no pet.) (mem. op.).
IV. CONCLUSION
We reverse the trial court's order and render judgment denying the petition for
expunction. Pursuant to DPS's prayer for relief, we order any documents surrendered
to the trial court or to Rivera returned to the submitting agencies. See Tex. Dep’t of
8 Pub. Safety v. Fredricks, 235 S.W.3d 275, 282 (Tex. App.—Corpus Christi, 2007, no
pet.) (mem. op.); Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam)
(providing that reversal of the order of expunction applies to all respondents, even if
they did not participate in the appeal).
DORI CONTRERAS GARZA, Justice
Delivered and filed the 27th day of June, 2013.