Ex Parte Robert Michael Santos

• Court: Court of Appeals of Texas
• Decided: February 15, 2012
• Docket: 04-11-00375-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-11-00375-CV

EX PARTE Robert Michael SANTOS

From the County Court At Law No. 1, Webb County, Texas Trial Court No. 2010CVK001455C1 Honorable Alvino (Ben) Morales, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice

Delivered and Filed: February 15, 2012

REVERSED AND REMANDED

In this restricted appeal, the Texas Department of Public Safety challenges the trial

court’s order granting Robert Michael Santos’s petition for expunction. Because we conclude

DPS did not receive notice of the expunction hearing, we reverse the trial court’s order and

remand the cause to the trial court for a new hearing.

A party can prevail in a restricted appeal only if: (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 did not

timely file any postjudgment motions or requests for findings of fact and conclusions of law; and

(4) error is apparent on the face of the record. Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 04-11-00375-CV

254, 255 (Tex. 2009). In this case, DPS was a party to the underlying lawsuit and filed its notice

of restricted appeal within six months after the trial court’s order was signed.

Because DPS was named in Santos’s petition, the trial court was required to give DPS

notice of the expunction hearing. See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(c) (West

Supp. 2011). The clerk’s record establishes that notice of the hearing was provided only to the

district attorney and Santos’s attorney. Notice to the district attorney is not notice to DPS. Tex.

Dept. of Public Safety v. Deck, 954 S.W.2d 108, 111 (Tex. App.—San Antonio 1997, no pet.).

The absence of notice is error apparent on the face of the record. See id. at 112.

Santos argues that this case is similar to Clopton v. Pak, in which the attorney was held to

have participated in the hearing that resulted in the judgment. 66 S.W.3d 514, 516 (Tex. App.—

Fort Worth 2001, pet. denied). In that case, however, the attorney signed and filed a joint motion

to dismiss, resulting in an order of dismissal. Id. In this case, only the district attorney signed a

waiver, and, as previously noted, DPS is a distinct law enforcement agency in an expunction

hearing and is entitled to represent itself. Deck, 954 S.W.2d at 111.

Santos also attempts to rely on unsworn statements by Santos’s attorney and the court

coordinator that DPS was no longer challenging the expunction. Because DPS was not present at

the hearing to object to the unsworn statements, however, the unsworn statements are no

evidence of participation by DPS. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997)

(unsworn statements by attorney not considered evidence unless opponent waives oath

requirement by failing to object); see also Casino Magic Corp. v. King, 43 S.W.3d 14, 20 (Tex.

App.—Dallas 2001, pet. denied) (unsworn statement by attorney not considered evidence); Cruz

v. State, 737 S.W.2d 74, 76 (Tex. App.—San Antonio 1987, no pet.) (“Counsel’s unsworn

statement to the trial court is not evidence.”); Ex parte Lindsey, 561 S.W.2d 572, 575 (Tex. Civ.

-2- 04-11-00375-CV

App.—Dallas 1978, orig. proceeding) (assuming unsworn statement by clerk not competent

evidence). Accordingly, the record establishes that DPS did not participate in the expunction

hearing.

Because DPS did not receive notice of or participate in the expunction hearing, the trial

court’s order is reversed, and the cause is remanded to the trial court for a new expunction

Catherine Stone, Chief Justice

-3-