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IN RE: the Expunction of C.G.
The Texas Department of Public Safety (Department) has filed a restricted appeal challenging the trial court's order of expunction of criminal records in favor of movant C.G. We reverse the trial court's order and remand for further proceedings given that the trial court rendered its order without setting a hearing and providing reasonable notice as statutorily required by article 55.02 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c).
On October 20, 2017, C.G. was arrested after being charged by information with two offenses: burglary of a vehicle in cause number 20180C01300 and theft of property in cause number 20180C01301. On August 21, 2018, the trial court granted C.G.'s motion for directed verdict and found C.G. not guilty on the theft of property charge (20180C01301). On the same day, the jury convicted C.G. on the burglary of a vehicle charge (20180C01300) for which C.G. was sentenced to twelve months of probation with a $1,000 fine.
On August 30, 2018, C.G. filed a motion for order of expunction of the records related to the arrest and prosecution that resulted in an acquittal of the theft of property charge and attached therewith a copy of the trial court's order dated August 21, 2018. Shortly thereafter, the county clerk gave notice to law enforcement agencies, officials, and entities of the State named in C.G.'s motion which likely had records relating to the charge. On September 7, 2018, the Department filed an original answer and general denial contesting C.G.'s entitlement to an expunction of records referenced by C.G.'s motion. With its answer, the Department attached copies of charging instruments and disposition records pertaining to the burglary charge along with the charging instrument pertaining to the theft charge. The Department argued that a person acquitted of an offense is entitled to an expunction only if the person was not convicted of or subject to prosecution for another offense occurring during the same criminal episode.1 No other pleadings appear in the record before us. On September 12, 2018, by written order and without a formal hearing, the trial court granted the expunction of all criminal records pertaining to the arrest for theft of property under cause number 20180C01301. Thereafter, on March 8, 2019, the Department filed a notice of restricted appeal.
The Department raises four issues on appeal in its list of issues presented for review. In Issue One, the Department asserts that C.G. is not entitled to an expunction because her acquittal arose out of the same criminal episode as her convicted offense. In Issues Two and Three, the Department maintains that the expunction order was not supported by legally sufficient evidence given that the Department controverted the allegations in the petition with an answer and that C.G. did not present affirmative evidence establishing that she was entitled to an expunction. Finally, in Issue Four, the Department asks in the alternative that the Court remand this case for a new trial given the lack of availability of transcript from any hearing the trial court may have held. Although listed for review, the argument portion of the Department's brief does not match with this listing and instead only argues three of the issues listed.
Because of this briefing discrepancy, we will ignore the listing of issues and instead address only the issues which are argued in substance and are necessary to a disposition of this appeal.
Standard of Review
A trial court's ruling on a petition for expunction is reviewed for an abuse of discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). Under this standard, we afford no deference to the trial court's legal determinations recognizing that the trial court has no discretion in deciding what the law is or in applying it to the facts. Id. Thus, a trial court's legal conclusions are reviewed de novo. Id. When conducting our review, however, we may not substitute our judgment for that of the trial court with respect to resolution of factual issues committed to the trial court's discretion. In re A.G., 388 S.W.3d 759, 761 (Tex. App.—El Paso 2012, no pet.). A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law. Id.
The Department's Restricted Appeal
To be entitled to a restricted appeal, the Department must prove: (1) it filed its restricted notice of appeal within six months after the judgment was signed; (2) it was a party to the suit; (3) it did not participate in the hearing that resulted in the complained-of judgment and did not file any post-judgment motions or request findings of fact and conclusions of law; and (4) error is apparent on the face of the record. Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Ex parte E.M.P., 572 S.W.3d 361, 363 (Tex. App.—Amarillo 2019, no pet.). These requirements are jurisdictional and must be met for a party to obtain relief by way of a restricted appeal. Ex parte E.M.P., 572 S.W.3d at 363; Clopton v. Pak, 66 S.W.3d 513, 515 (Tex. App.—Fort Worth 2001, pet. denied). Our review of a restricted appeal is limited to the face of the record and thus we may not consider extrinsic evidence. Alexander, 134 S.W.3d at 848; Ex parte E.M.P., 572 S.W.3d at 363. The face of the record consists of all the papers that were before the trial court at the time it rendered judgment, including the clerk's record and any reporter's record. Tex. Dep't of Pub. Safety v. J.B.R., 510 S.W.3d 610, 617 (Tex. App.—El Paso 2016, no pet.).
In this case, the record establishes the Department timely filed a notice of restricted appeal, was a party to the underlying suit, did not participate in the hearing that resulted in the trial court's order, and did not file any post-judgment motions. We therefore address whether error is apparent on the face of the record.
Lack of Hearing and Notice of Hearing
In Issue Four, the Department seeks a remand for a new trial given the lack of availability of a transcript from any hearing the trial court may have held before rendering its expunction order. Responding, C.G. concedes in briefing that the trial court erred by rendering its order without conducting an evidentiary hearing as required by the applicable provision. On review, we agree with the parties that error is apparent on the face of the record.
The right to an expunction is neither a constitutional nor common-law right, but rather, a statutory privilege. In Matter of Expunction of M.T., 495 S.W.3d 617, 620 (Tex. App.—El Paso 2016, no pet.). Thus, an expunction cannot be granted unless the statutory requirements are satisfied. Id. An expunction proceeding is civil in nature, and, accordingly, the petitioner bears the burden of proving that all statutory requirements have been met. Id. Once a general denial is filed in an expunction proceeding, all facts in a petition for expunction are placed at issue and cannot constitute evidence to support the petition. In re Expunction, 465 S.W.3d 283, 290 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (op. on reh'g); State v. Herron, 53 S.W.3d 843, 847 (Tex. App.—Fort Worth 2001, no pet.).
Article 55.02 of the Texas Code of Criminal Procedure governs the procedural requirements related to an expunction of criminal records. Tex. Code Crim.Proc.Ann. art. 55.02. We first note that the expunction statute explicitly requires the trial court to set a hearing and to give reasonable notice to each official, agency, or government entity which was named in the petition seeking an expunction of criminal records. See id. § 2(c). Section 2(c) provides that “[t]he 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[.]” Id. When construing this provision, courts have held that an evidentiary hearing is not necessarily required if the petition seeking expunction can be decided on the paper record alone. Ex parte Wilson, 224 S.W.3d 860, 863 (Tex. App.—Texarkana 2007, no pet.); Ex parte Current, 877 S.W.2d 833, 839 (Tex. App.—Waco 1994, no pet.). For example, a trial court may rule on a petition for an expunction if it has at its disposal all the information it needs to resolve the issues raised by the petition. Ex parte Wilson, 224 S.W.3d at 863. That information might be available by what is in the pleadings, by summary judgment proof, or by judicially noticed court records. Id.
Here, given our record, we conclude that a hearing was necessary as the Department had placed all facts at issue by filing its denial and neither C.G. nor the Department thereafter submitted record evidence to support the expunction motion nor the counter argument. See In re Expunction, 465 S.W.3d at 290; Herron, 53 S.W.3d at 847. Before ruling, the trial court failed to set the matter for a hearing and provide reasonable notice to the Department and other agencies named in C.G.'s motion.2 Absent notice, the Department was deprived of an opportunity to contest C.G.'s motion, and C.G., in turn, was deprived of the opportunity to present evidence to respond to the Department's argument asserting the charges arose from the same criminal episode. Accordingly, we conclude that the trial court reversibly erred by rendering its order on contested pleadings, without record evidence, and without first giving reasonable notice as required for expunction of criminal records. See Tex. Code Crim.Proc.Ann. art. 55.02, § 2(c); Tex. Dep't of Pub. Safety v. Soto, 285 S.W.3d 542, 544 (Tex. App.—Corpus Christi 2009, no pet.) (concluding that reversal of expunction order was the proper remedy in a restricted appeal brought by DPS where the trial court erred by failing to give DPS prior notice of hearing). Issue Four is sustained.
We decline to address Issues One through Three as unnecessary to the resolution of this appeal. Tex.R.App.P. 47.1.
We reverse and set aside the expunction order and remand for proceedings consistent with this opinion.3
1. See Tex. Code Crim. Proc. Ann. art. 55.01(c); Tex. Penal Code Ann. § 3.01.
2. Indeed, based on the state of the record before us, it appears that the trial court may have ruled sua sponte based on the parties' pleadings alone (i.e. the petition and the original answer). According to the letter received from the court reporter, no reporter's record was made of any hearing on C.G.'s motion for expunction.
3. We note that when an expunction order is reversed and set aside, the reversal applies to all agencies in possession of relevant criminal records. Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam); Tex. Dep't of Pub. Safety v. Deck, 954 S.W.2d 108, 113 (Tex. App.—San Antonio 1997, no pet.).
GINA M. PALAFOX, Justice
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Docket No: No. 08-19-00075-CV
Decided: December 11, 2019
Court: Court of Appeals of Texas, El Paso.
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