EX PARTE MARY ELISABETH TIPPENS v. <<

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Court of Appeals of Texas, Texarkana.

EX PARTE MARY ELISABETH TIPPENS

No. 06-17-00100-CV

Decided: March 23, 2018

Before Morriss, C.J., Moseley and Burgess, JJ.

MEMROANDUM OPINION

On January 11, 2017, Mary Elisabeth Tippens filed a petition for expunction of all records and files relating to a dismissed Class B misdemeanor charge for alleged possession of less than two ounces of marihuana in Bosque County, Texas, on March 12, 2016.1 The expunction was granted on March 6, 2017. The Texas Department of Public Safety (DPS) filed this restricted appeal of the trial court's order of expunction and argues, among other things, that the case must be reversed and remanded for a new trial because no reporter's record was made of the hearing. Tippens concedes the error and agrees that this case should be reversed. Because we concur with the DPS and Tippens, we reverse the trial court's order of expunction and remand the cause for a new hearing.

I. Procedural Background

The right to expunction is a “statutory privilege” allowed by Article 55.01 of the Texas Code of Criminal Procedure. Ex parte M.R.L., No. 10-11-00275-CV, 2012 WL 763139, at *3 (Tex. App.—Waco Mar. 7, 2012, pet. denied) (mem. op.); see TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2017)). In pertinent part, the version of Article 55.01 applicable to this case provided:

(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

(2) 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 Chapter 42A ․ for the offense, unless the offense is a Class C misdemeanor, provided that:

(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person's arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:

(i) has not been presented against the person at any time following the arrest, and:

(b) at least one year has elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class B or A misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested ․

Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Gen. Laws 2321, 2373–74 (current version at TEX. CODE CRIM. PROC. art. 55.01(a)(2)).2

Prior to the trial court's March 6, 2017, order expunging records of the March 12, 2016, arrest, the DPS had filed an answer arguing that Tippens could not expunge records of the arrest because it resulted in a guilty plea in another case. See M.R.L., 2012 WL 763139, at *3. The answer attached an order of deferred adjudication demonstrating that Tippens pled guilty to intentionally and knowingly possessing less than two ounces of a controlled substance listed in penalty group 2 as a result of an offense occurring on March 12, 2016.

All parties agree that the trial court held a hearing on Tippens' petition. See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(c) (West Supp. 2017). However, our clerk's record contains no notices of any hearing, and an affidavit filed in this cause by the court reporter stated that no reporter's record was available from the expunction hearing. On appeal, the DPS argues that the evidence was legally insufficient to support the trial court's order of expunction and that the case must be reversed for lack of a hearing.

II. Standard of Review

Because the DPS is attacking the trial court's judgment by restricted appeal, it must establish that:

“(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 Pa. 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)); see TEX. R. APP. P. 26.1(c), 30.

III. A New Hearing Is Required

The clerk's record established that the DPS timely brought its restricted appeal, was a party to Tippens' expunction, did not participate in the hearing that resulted in the judgment, and did not file any timely post-judgment motions. See Ex parte Locke, No. 06-07-00105-CV, 2008 WL 850153, at *1 (Tex. App.—Texarkana Mar. 28, 2008, no pet.) (mem. op.). Thus, we address whether error is apparent on the face of the record. “[F]or purposes of a restricted appeal, the face of the record consists of all papers on file in the appeal, including the reporter's record.” Tex. Dep't of Pub. Safety v. Redding, No. 11-12-00285-CV, 2013 WL 3203813, at *2 (Tex. App.—Eastland June 20, 2013, no pet.) (mem. op.) (citing Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Ex parte Ruiz, No. 04-11-00808-CV, 2012 WL 2834898 (Tex. App.—San Antonio July 11, 2012, no pet.) (mem. op.)).

The DPS' argument that there is an “absence of legally sufficient evidence to support [this] judgment is reviewable in a restricted appeal.” Ex parte Ruiz, No. 04-11-00808-CV, 2012 WL 2834898, at *1 (Tex. App.—San Antonio July 11, 2012, no pet.) (mem. op.) (citing Norman Commc'ns, 955 S.W.2d at 270). The intent of the expunction statute is to “eliminate[ ] records based on wrongful arrests.” M.R.L., 2012 WL 763139, at *3. “[W]hen a defendant admits guilt as to an offense arising out of an arrest, by that admission, the defendant concedes that the arrest was not wrongful for purposes of the expunction statute.” Id. (citing Ex parte P.D.H., 823 S.W.2d 791, 793 (Tex. App.—Houston [14th Dist.] 1992, no writ) (“In the instant case, appellee pled guilty and by doing so admitted that she was not wrongfully arrested.”); Harris Cty. Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991) (“[T]he expunction law clearly was not ‘intended to allow a person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty plea to expunge arrest and court records concerning that offense.’ ” (quoting Tex. Dep't of Pub. Safety v. Failla, 619 S.W.2d 215, 217 (Tex. App.—Texarkana 1981, no writ))).

Although the attachments to the DPS's answer indicated that Tippens may not have been entitled to expunge records from her March 12, 2016, arrest, “[w]ithout a reporter's record, we cannot know what evidence, if any, was introduced at the hearing.” Ruiz, 2012 WL 2834898, at *1. We also cannot take as true the allegations in the DPS's answer. Here, “because DPS has complained of the absence of a reporter's record, the trial court's order must be reversed, and the cause must be remanded for a new hearing.” Id.; see Redding, 2013 WL 3203813, at 2. We sustain the DPS's point of error complaining of the lack of a reporter's record.

IV. Conclusion

We reverse the trial court's order of expunction and remand the matter for a new hearing.

FOOTNOTES

1.   Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.

2.   “The trial court must strictly comply with the statutory procedures for expunction, and it commits reversible error when it fails to comply.” Ex parte M.G., No. 10-13-00021-CV, 2013 WL 3972225, at *1 (Tex. App.—Waco Aug. 1, 2013, no pet.) (mem. op.) (citing Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.—Waco 1997, pet. denied)).

Ralph K. Burgess Justice

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