Opinion
No. 05-05-01421-CV
Opinion issued March 29, 2006.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 67429-422.
Reversed and Rendered.
Before Justices WHITTINGTON, BRIDGES, and LANG-MIERS.
MEMORANDUM OPINION
The Texas Department of Public Safety brings this restricted appeal of an expunction order in favor of Stephen Lee Shipp. In its sole issue, the TDPS contends Shipp is not entitled to having his record expunged because he was placed on probation as a result of an arrest.
Initially, we must address whether the TDPS may complain of the expunction order in a restricted appeal. To successfully attack an order by restricted appeal, the appealing party must show (i) it was a party who did not participate either in person or through counsel in the hearing that resulted in the judgment complained of, (ii) it filed a notice of appeal within six months after the order was signed, and (iii) error is apparent on the face of the record. See Tex.R.App.P. 26.1(c), 30. An agency protesting an expunction order may appeal the judge's decision in the same manner as other civil cases. Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) (Vernon Supp. 2005). All law enforcement agencies that may have records a petitioner wants expunged are entitled to be represented by counsel at an expunction hearing. See Tex. Dep't of Pub. Safety v. Moore, 51 S.W.3d 355, 357 (Tex.App.-Tyler 2001, no pet.) (citing Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c) (Vernon Supp. 2005)). The TDPS, "as a State agency with records subject to expunction, is a party to the suit within the meaning of the requirements for a restricted appeal." Moore, 51 S.W.3d at 357; see also State v. Sink, 685 S.W.2d 403, 404 (Tex.App.-Dallas 1985, no writ) (holding State had standing to directly appeal ex parte expunction order). Shipp did not list the TDPS as a law enforcement agency with records or files pertaining to his arrest or the alleged offense, nor did he serve the TDPS with a copy of his petition for expunction. Thus, the record shows the TDPS was a party who did not participate either in person or through counsel in the hearing that resulted in the complained of judgment. The TDPS meets the first requirement for raising a restricted appeal.
The expunction order was signed May 6, 2005, and the TDPS filed its notice of appeal October 14, 2005, within the six-month deadline contemplated in rule 26.1(c). Because the TDPS timely filed its notice of restricted appeal, it meets the second requirement for raising a restricted appeal. We next turn to whether error is apparent on the face of the record.
In a restricted appeal, we are limited to considering only the face of the record, but our scope of review is otherwise the same as that in an ordinary appeal; thus, we review the entire case. Hubicki v. Festina, 156 S.W.3d 897, 900 (Tex.App.-Dallas 2005, pet. filed) (citing Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)). In a restricted appeal review, the face of the record consists of all papers on file in the appeal, including the reporter's record. See Norman Commc'ns, 955 S.W.2d at 270; Hubicki, 156 S.W.3d at 900. Therefore, our review of the entire case encompasses the "review of legal and factual insufficiency claims." See Norman Commc'ns, 955 S.W.2d at 270; Hubicki, 156 S.W.3d at 900.
The TDPS contends Shipp did not meet the requirements for expunction because he was placed on probation as a result of an arrest. Article 55.01 provides that a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to expunction of all records and files relating to the arrest. To be entitled to expunction, the person seeking relief must establish each of the following conditions exists:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) 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 any offense other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A)-(C) (Vernon Supp. 2005) (emphasis added).
A review of the record before us establishes Shipp was charged with and pleaded guilty to possession of marijuana in an amount of two ounces or less, a class B misdemeanor. See Tex. Health Safety Code Ann. § 481.121(b)(1) (Vernon 2003). The clerk's record contains a copy of the deferred adjudication community supervision judgment. The judgment (i) states the evidence substantiates Shipp's guilt for the class B misdemeanor offense of possession of marijuana and (ii) places Shipp on community supervision for "1 year deferred." The clerk's record also contains Shipp's "Petition for Expunction" that alleges "there was court-ordered community supervision under Article 42.12 of the Texas Code of Criminal Procedure." Furthermore, the reporter's record establishes Shipp testified at the expunction hearing that "this concerns an offense [he] received probation for in [Kaufman County]" and he "successfully completed the terms of deferred adjudication." Thus, the face of the record in this case establishes Shipp was not entitled to expunction of his record. See Tex. Dep't. of Pub. Safety v. Wallace, 63 S.W.3d 805, 807 (Tex.App.-Austin 2001, no pet.) ("Misdemeanor deferred-adjudication constitutes `court ordered community supervision' under article 42.12 for purposes of the expunction statute and renders a defendant ineligible for expunction of arrest records. See Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991); Ex parte P.D.H., 823 S.W.2d 791, 792-93 (Tex.App.-Houston [14th Dist.] 1992, no writ)."). Because the TDPS has established error apparent on the face of the record, we sustain the sole issue on appeal.
We reverse the trial court's order granting expunction and render judgment denying Shipp's petition for expunction.