Opinion
NUMBER 13-17-00153-CV
08-28-2018
EX PARTE JESSE ALMARAZ
On appeal from the 25th District Court of Lavaca County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Contreras, and Benavides
Memorandum Opinion by Justice Rodriguez
The trial court granted expunction of criminal records for appellee Jesse Almaraz, and appellant Texas Department of Public Safety (DPS) filed this restricted appeal. By one issue, DPS contends the trial court abused its discretion by granting the expunction. We reverse and render.
I. BACKGROUND
Almaraz filed a petition seeking the expunction of all records relating to his arrest in 1987. DPS filed an answer in which it asserted that Almaraz was ineligible under the expunction statute because the 1987 arrest resulted in a conviction for public intoxication. DPS attached various documents to its answer, including a purported judgment from June 28, 1987. The judgment reflected that Almaraz pleaded guilty, was convicted of public intoxication, and was assessed a fine of $200 as well as court costs.
See TEX. PENAL CODE ANN. § 49.02(a) (West, Westlaw through 2017 1st C.S.).
On September 20, 2016, the trial court held an expunction hearing. An assistant district attorney appeared on behalf of the State. DPS did not appear. The hearing began with the following colloquy:
Counsel for Almaraz: Your Honor, we have an expunction on an arrest from 29 years ago.Almaraz then briefly testified that he had been arrested on June 20, 1987 and subsequently pleaded guilty to public intoxication. However, Almaraz testified that he had not been arrested since 1987 and that he now serves his community as a justice of the peace. The trial court granted expunction, and this restricted appeal followed.
Trial Court: You got any objection to this?
The State: No, Your Honor.
Trial Court: All right. Go ahead. I've got an order in here.
Counsel for Almaraz: Oh, you do? Thank you, Your Honor.
II. THE FIRST THREE REQUIREMENTS OF A RESTRICTED APPEAL
An appellant must establish four elements to succeed in a restricted appeal: (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 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). We liberally construe the non-participation requirement in favor of the right to appeal. Id.
As to the first requirement, DPS filed its notice of appeal within six months of the judgment: the trial court signed the judgment on September 20, 2016, and DPS filed its notice of restricted appeal on March 20, 2017. See id.
As to the second requirement, DPS is a proper party to this suit. See id. Almaraz listed DPS as an entity potentially having records that he sought expunged, and DPS was made subject to the expunction order, which provided DPS with the right to appeal the court's judgment "in the same manner as in other civil cases." See Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.—Corpus Christi 2016, no pet.).
As to the third requirement, a review of the record confirms that DPS did not file any post-judgment motions or requests for findings of fact and conclusions of law. See Pike-Grant, 447 S.W.3d at 886. Liberally construing the non-participation requirement in favor of the right to appeal, we conclude that DPS did not "participate" in the hearing that resulted in the complained-of judgment. See id. Even though DPS "filed an answer in response to [appellee's] petition, it did not participate in the hearing on his petition that resulted in the expunction order." See Vega, 510 S.W.3d at 548. "Filing an answer . . . is not participation" for purposes of a restricted appeal. See Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985).
An entity described in the expunction statute "may be represented by the attorney responsible for providing the entity with legal representation in other matters." See TEX. CODE CRIM. PROC. ANN. art. 55.02 § 2(c-1) (West, Westlaw through 2017 1st C.S.) (emphasis added). Under this provision, the DA does not automatically represent the DPS in an expunction proceeding. See, e.g., Tex. Dep't of Pub. Safety v. Smith, 533 S.W.3d 488, 496 (Tex. App.—Corpus Christi May 4, 2017, no pet.); Tex. Dep't of Pub. Safety v. J.B.R., 510 S.W.3d 610, 616 (Tex. App.—El Paso 2016, no pet.); Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108 (Tex. App.—San Antonio 1997, no writ); Tex. Dep't of Pub. Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. App.—Houston [1st Dist.] 1994, no writ). Our decision in Texas Department of Public Safety v. Espinoza is distinguishable from these cases. See No. 13-08-00393-CV, 2009 WL 2545884, at *1 (Tex. App.—Corpus Christi Aug. 20, 2009, no pet.) (mem. op.). In Espinoza, the issue was not briefed or raised by the parties and it is not clear from the record whether there was an agreement regarding representation between the DA and DPS. See id. In this regard, agreements or putative agreements regarding representation of the DPS by the DA are handled on a case-by-case basis given the discretionary nature of the statute and the differing factual scenarios that might be presented. See TEX. CODE CRIM. PROC. ANN. art. 55.02 § 2(c-1).
With the first three requirements satisfied, we turn to the fourth requirement: whether error appears on the face of the record. See Pike-Grant, 447 S.W.3d at 886.
III. THE FOURTH REQUIREMENT: ERROR ON THE FACE OF THE RECORD
By its sole issue, DPS argues that error is apparent on the face of the record because Almaraz's 1987 arrest resulted in a final conviction.
A. Standard of Review
We review a trial court's ruling on a petition for expunction for an abuse of discretion. Vega, 510 S.W.3d at 548. To the extent the court's ruling on an expunction petition turns on a question of law, we review that ruling de novo. Id. A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard to guiding legal principles, or without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).
Because this is a restricted appeal, our review is limited to the face of the record. Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam). The "face of the record" includes all papers on file in the appeal and the reporter's record, if any. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); see also Tex. Dep't of Pub. Safety v. Salazar, No. 13-12-00771-CV, 2013 WL 4399185, at *2 (Tex. App.—Corpus Christi Aug. 15, 2013, no pet.) (mem. op.). The requirement that error be apparent on the face of the record means that "error that is merely inferred will not suffice." Ginn, 282 S.W.3d at 431. With this limitation, our scope of review is otherwise the same as in an ordinary appeal. Vega, 510 S.W.3d at 547.
B. Eligibility for Expunction
Expunction is civil in nature, though the expunction statute is codified in the Texas Code of Criminal Procedure. Id. at 548. Upon fulfillment of certain statutory requirements, all criminal records arising from an arrest must be expunged. Id. To establish his right to expunction under the statutory article at issue here, the petitioner must prove that: (1) he has been released; (2) the charge, if any, has not resulted in a final conviction; (3) the charge, if any, is no longer pending; (4) there was no court-ordered community supervision; and (5) other statutory requirements which are not at issue in this case. TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (West, Westlaw through 2017 1st C.S.). Expunction is only available when all the statutory conditions have been met, which the petitioner has the burden of proving. Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 650 (Tex. App.—Corpus Christi 2002, no pet.). Courts have no equitable power to extend the expunction statute. Id. And because expunction is not a right but a statutory privilege, each of the statutory conditions for expunction is mandatory and exclusive. Vega, 510 S.W.3d at 548.
In support of the fourth requirement for its restricted appeal—error on the face of the record—DPS argues that Almaraz was not entitled to expunction because his 1987 arrest resulted in a final conviction. Almaraz testified at the hearing that this was true. This evidence establishes that Almaraz was ineligible for expunction under the relevant portion of the statute. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); Vega, 510 S.W.3d at 551. Because the face of the record shows that the trial court abused its discretion in expunging records stemming from Almaraz's arrest, see Vega, 510 S.W.3d at 548, DPS has satisfied the fourth and final requirement of its restricted appeal. See Pike-Grant, 447 S.W.3d at 886.
We sustain DPS's sole issue.
IV. CONCLUSION
We reverse the trial court's order of expunction and render judgment denying Almaraz's petition for expunction.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 28th day of August, 2018.