Texas Department of Public Safety v. Kelly Sowell

Opinion

Opinion filed August 4, 2011

In The

Eleventh Court of Appeals __________

No. 11-10-00018-CV __________

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

V.

KELLY SOWELL, Appellee

On Appeal from the 335th District Court

Lee County, Texas

Trial Court Cause No. 13823

MEMORANDUM OPINION ON MOTION FOR REHEARING

The Texas Department of Public Safety has filed a motion for rehearing in this restricted appeal from an order expunging all records related to the arrest of Kelly Sowell for the misdemeanor offense of possession of marihuana. In the motion, the DPS asserts that there is error on the face of the record based upon documents attached to the DPS’s answer, which renders the evidence legally insufficient so support the expunction. As we recognized in our original opinion, had those documents been introduced into evidence, Sowell may not have been entitled to an expunction. However, the DPS did not appear for trial, and nothing in the record indicates that the documents attached to the DPS’s answer were offered into evidence. Neither pleadings nor attachments to pleadings are evidence unless they are offered and admitted as evidence by the trial court. Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722, 724-25 (Tex. App.—San Antonio 2004, no pet.); Gowan v. Tex. Dep’t of Criminal Justice, 99 S.W.3d 319, 322 (Tex. App.—Texarkana 2003, no pet.); State v. Herron, 53 S.W.3d 843, 847 (Tex. App.— Fort Worth 2001, no pet.); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (pleadings do not constitute summary judgment proof). Without a record of the evidence presented at the hearing, we cannot hold that the evidence is legally insufficient to support the expunction. The motion for rehearing is denied.

August 4, 2011 Panel consists of: Wright, C.J., McCall, J., and Hill, J.1

1 John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.