Opinion
No. 09-08-00402-CV
Submitted on July 1, 2009.
Opinion Delivered July 30, 2009.
On Appeal from the 252nd District Court Jefferson County, Texas, Trial Cause No. 745-X.
Before McKEITHEN, C.J., KREGER and HORTON, JJ.
MEMORANDUM OPINION
The Texas Department of Public Safety ("Department") files a restricted appeal from an order that expunged J.D.R.'s record of an arrest. J.D.R.'s attorney advised this Court that J.D.R. had no response to the Department's brief. In two issues, the Department contends the trial court erred in granting the petition for expunction without first giving the Department notice of the hearing and without requiring J.D.R. to submit legally sufficient evidence to show that he was entitled to an expunction of records related to his arrest. We reverse and remand.
The expunction of criminal records is governed by the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 55.01-.06 (Vernon 2006 Supp. 2008). Law enforcement agencies with records that a petitioner wants expunged are entitled to have counsel represent them at the petitioner's expunction hearing. TEX. CODE. CRIM. PROC. ANN. art. 55.02 § 2(c-1). An agency protesting the expunction may appeal the court's decision in the same manner as in other civil cases. Id. § 3(a).
The requirements for restricted appeals are provided in the Texas Rules of Appellate Procedure ("Rules"). TEX. R. APP. P. 26.1(c), 30. An appellant may attack a judgment by restricted appeal if it shows 1) it was a party to the suit, 2) it filed its notice of appeal within six months after the order was signed, and 3) it did not participate at trial. Id. To prevail in a restricted appeal, the appellant must show that error is apparent from the face of the record. Tex. Dep't of Pub. Safety v. Moore, 51 S.W.3d 355, 357 (Tex.App.-Tyler 2001, no pet.).
In this case, the Department meets the criteria for restricted appeals established in the Rules. First, the Department is a party to the expunction suit brought by J.D.R. because it is a State agency with records subject to expunction. Id. at 357. Second, the Department filed its notice of appeal on September 25, 2008, a date within six months of the expunction order rendered on April 9, 2008. Third, the Department's appellate brief alleges that it did not appear at the expunction hearing, and J.D.R. did not challenge this assertion. See TEX. R. APP. P. 38.1(g). Finally, error is apparent on the face of the record because the notice required by statute for the expunction hearing was not provided to the Department. See TEX. CODE CRIM. PROC. ANN. art. 55.02 § 2(c) (Vernon Supp. 2008); Texas Dep't. of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex.App.-San Antonio 1997, no pet.).
We review a trial court's order in an expunction proceeding for abuse of discretion. State v. Taylor, 266 S.W.3d 553, 555 (Tex.App.-Tyler 2008, pet. denied). "The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to do so." Id.
The Department's second issue attacks the legal sufficiency of the evidence showing that J.D.R. was entitled to an expunction of the records related to his arrest. If successful, this challenge would result in rendition; thus, we consider it first. See TEX. R. APP. P. 43.3. The order in this case does not indicate whether the trial court received evidence, and the court reporter did not record the hearing. Under these circumstances, the absence of a reporter's record precludes the Department from presenting an effective challenge to the evidence's sufficiency. See Tex. Dep't of Pub. Safety v. C.K.H., No. 09-08-00414-CV, 2009 WL 1331092, at *1 (Tex.App.-Beaumont, May 14, 2009, no pet.) ("Failure to record the hearing prevents the Department from presenting its challenge to the sufficiency of the evidence."); Deck, 954 S.W.2d at 112 ("Absent a statement of facts or other record from the hearing, as is the case here, it is presumed that the trial judge reviewed and found all necessary facts to support the order."). We overrule issue two.
Issue one maintains that the trial court erred in granting the petition for expunction without first providing notice of the hearing to the Department. We agree. Here, the record does not show that the Department was notified of the hearing conducted by the trial court on April 9, 2008, as required by article 55.02. See TEX. CODE CRIM. PROC. ANN. art. 55.02 § 2(c). The trial court abuses its discretion when it does not comply with statutory procedures and nevertheless grants a petition for expunction. See Taylor, 266 S.W.3d at 555. "If the record does not indicate that the agency was notified in accordance with the statute, then the record reflects a proceeding in violation of the statute and the expunction order must be set aside." Deck, 954 S.W.2d at 112. We sustain issue one.
Accordingly, the order of expunction is set aside, and the case is remanded to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.