EX PARTE v. << (2017)

MEMORANDUM OPINION

The Texas Department of Public Safety filed this restricted appeal challenging the trial court's expunction order and asserted the trial court failed to provide the required notice. Appellee C.H. did not file an appellee's brief. We reverse the trial court's expunction order based on the lack of statutorily required notice to the Department.

PROCEDURAL HISTORY

On November 6, 2015, C.H. filed a verified petition for expunction of records. In his petition, C.H. sought to have the records relating to a 2009 charge for burglary of a habitation by force expunged. The Department was one of the governmental entities named in the petition. The record does not contain an answer filed by the Department.

The matter was set for a hearing on November 9, 2015; after the hearing the trial court granted C.H.'s petition for expunction. The Bexar County District Attorney's Office appeared at the hearing and approved of the trial court's order. The Department did not appear. On May 9, 2016, the Department filed this restricted appeal.

EXPUNCTIONS

A. Restricted Appeal

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 254, 255 (Tex. 2009) (per curiam) (quoting Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004)) (citing TEX. R. APP. P. 26.1(c), 30). For purposes of a restricted appeal, “[t]he face of the record includes all papers on file in the appeal, including the clerk's record and the reporter's record.” Ex parte Pinnock, 437 S.W.3d 564, 566–67 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991) (per curiam)); Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). The absence of legally sufficient evidence to support a judgment is reviewable in a restricted appeal. Norman Commc'ns, 955 S.W.2d at 270.

B. Required Notice

The procedures to be followed in an expunction proceeding are set forth in article 55.20 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 55.02 § 2(c) (West 2017). Article 55.02, section 2(c), requires the hearing to be set no sooner than thirty-days following the filing of the petition. Id. § 2(c) (“The court shall set a hearing on the matter no sooner than thirty days from the filing of the petition and shall give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing.”).

C. Analysis

The record supports the Department did not receive notice of the November 9, 2015 hearing. Additionally, the trial court held the hearing only three days after C.H. filed his original petition for expunction. Contra id. The record does not contain a waiver of notice by the Department. Any agreement or waiver made by the Bexar County District Attorney's Office is not binding on the Department. The Department was entitled to reasonable notice of the hearing. Id.; Tex. Dep't of Pub. Safety v. Soto, 285 S.W.3d 542, 544 (Tex. App.—Corpus Christi 2009, no pet.).

Accordingly, we sustain the Department's sole issue on appeal. We reverse and set aside the trial court's order granting C.H.'s expunction petition and remand this matter to the trial court for further proceedings consistent with this opinion.

Patricia O. Alvarez, Justice