                               Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-12-00804-CV

                          TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                       Appellant

                                                   v.

                                     Erika Denisse GONZALEZ,
                                              Appellee

                      From the County Court at Law No. 1, Webb County, Texas
                                Trial Court No. 2012CVK00326C1
                          Honorable Alvino (Ben) Morales, Judge Presiding

Opinion by:       Marialyn Barnard, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: January 22, 2014

REVERSED AND RENDERED

           The Texas Department of Public Safety (“DPS”) filed this restricted appeal, attacking the

trial court’s entry of an expunction order in favor appellee Erika Denisse Gonzalez. DPS contends

the face of the record shows the evidence was legally insufficient to support the expunction and

the trial court did not comply with mandatory notice requirements. Because the face of the record

reflects the evidence was legally insufficient to support the expunction, we reverse the trial court’s

judgment and render judgment denying the requested expunction.
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                                                   BACKGROUND

         On February 17, 2012, Gonzalez filed a petition for expunction pursuant to article

55.01(a)(2) of the Texas Code of Criminal Procedure. 1 A hearing on the petition was initially set

for April 3, 2012. DPS received notice of this hearing and filed a general denial in response.

However, the trial court subsequently reset the hearing for May 8, 2012. No notice of the reset

was sent to DPS. Consequently, DPS did not attend or participate in the hearing.

         At the brief hearing, Gonzalez initially testified to her date of birth and other identifying

information. The following exchange constitutes the entirety of the testimonial evidence offered

in support of the expunction:

                  Ms. Tijerina (Counsel for Gonzalez): Ms. Gonzalez, you were arrested on
                                        or about – for Assault Felony 3 on October 29th,
                                        2007; is that correct?

                  Ms. Gonzalez:              Yes.

                  Ms. Tijerina:              And also for Retaliation, Class A, on the same date?

                  Ms. Gonzalez:              Uh-huh.

                  Ms. Tijerina:              And for Burglary of a Habitation on the same date;
                                             is that correct?

                  Ms. Gonzalez:              Yes.

                  Ms. Tijerina:              And, to your knowledge, you were never convicted
                                             of these crimes?

                  Ms. Gonzalez:              No.

                  Ms. Tijerina:              And you’re asking the court to grant you an
                                             expungement?




1
  Article 55.01(a)(2) states generally that a person who has been arrested for a felony or misdemeanor is entitled to
have all records relating to the arrest expunged if the person was released and the charge, if any, did not result in a
final conviction, no charge is pending, and there was no court-ordered community supervision. TEX. CODE CRIM.
PROC. ANN. art. 55.01(a)(2) (West Supp. 2013).

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                                                                                                   04-12-00804-CV


                     Ms. Gonzalez:              Yes.

                     Ms. Tijerina:              I have no further questions, Judge.

There was no mention of any court-ordered probation or community supervision. Without

evidence from any of the other parties present at the hearing, the trial court granted Gonzalez’s

expunction and signed its amended order of expunction on June 11, 2012.

           DPS learned of the trial court’s actions when it received a copy of the order via certified

mail. DPS subsequently filed this restricted appeal, contending there is error on the face of the

record. 2

                                                        ANALYSIS

           To prevail on a restricted appeal, a party to the underlying suit must show: (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 it failed to timely file any postjudgment motions or requests for findings of fact or

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); Household Finance Corp. III v. DTND Sierra

Investments, LLC, No. 04-13-00033-CV, 2013 WL 5948899, at *2 (Tex. App.—San Antonio Nov.

6, 2013, no pet. h.) (mem. op.); see TEX. R. APP. P. 26.1(c) (stating that in restricted appeal, notice

of appeal must be filed within six months of date judgment or order is signed); TEX. R. APP. P. 30

(stating party who did not participate in hearing that resulted in judgment complained of and who

did not timely file postjudgment motions, request for findings of fact and conclusions of law, or

notice of appeal, may filed restricted appeal).




2
    Gonzalez did not file an appellee’s brief in response to the appellant’s brief filed by DPS.

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       The record reflects DPS filed its notice of restricted appeal within six months of the date

the judgment was signed, it was a party to the lawsuit, and it did not participate in the reset hearing

or file any postjudgment motions or requests. Thus, the only issue before us is whether there is

error apparent on the face of the record.

       We begin with DPS’s contention that the evidence on the face of the record is legally

insufficient to support the order granting expunction. In a restricted appeal, we sustain a legal

sufficiency challenge where the face of the record shows: (1) a complete absence of a vital fact;

(2) the court is barred by rules of law or evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla;

or (4) the evidence establishes conclusively the opposite of the vital fact. VIA Metro. Transit Auth.

v. Barraza, No. 04-13-00035-CV, 2013 WL 6255761 (Tex. App.—San Antonio Dec. 4, 2013, no

pet. h.) (mem. op.); see City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The face of

the record includes the reporter’s record and documents that were before the court at the time the

challenged order was signed. See In re Guardianship of V.A., 390 S.W.3d 414, 416 (Tex. App.—

San Antonio 2012, pet denied).

       The right to an expunction is a statutory privilege. Ex Parte Green, 373 S.W.3d 111, 113

(Tex. App.—San Antonio 2012, no pet.) In order to obtain an expunction of past arrest records,

Gonzalez had the burden of proving that all of the statutory requirements of article 55.01 were

met. See id.; TEX. CODE CRIM. PROC. ANN. art. 55.01. One of the statutory requirements is “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 the

offense.” TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (emphasis added). DPS contends

Gonzalez specifically failed to meet this statutory requirement.



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        Our review of the record reveals that during the hearing Gonzalez failed to offer any

evidence to prove the vital fact required under article 55.01 that there was no court-ordered

community supervision under article 42.12 for the three offenses for which Gonzalez was

admittedly arrested. Gonzalez merely testified she was not convicted of the offenses, but was

never even asked about community supervision. Without any testimony as to the absence of court-

ordered community supervision, we hold there is a complete absence of a vital fact required for

expunction under article 55.01. 3 See TEX. CODE CRIM. PROC. ANN. art 55.01(a)(2). Accordingly,

we sustain DPS’s legal sufficiency challenge.

        Even if the evidence was legally sufficient, DPS is correct in its assertion that the trial court

erred in granting the expunction without providing DPS with notice of the actual hearing date. The

procedures for expunction of criminal records listed in article 55.02 of the Code of Criminal

Procedure are mandatory and must be complied with in an expunction proceeding. Texas Dep’t

of Pub. Safety v. Deck, 954 S.W.2d 108, 112 (Tex. App.—San Antonio 1997, no pet.). Pursuant

to section 2(c) of article 55.02, the trial court is required to give each official or agency listed in

the petition “reasonable notice of the hearing.” TEX. CODE CRIM. PROC. ANN. art. 55.02 § 2(c)

(West Supp. 2013). If the record before the appellate court does not indicate the agency was

notified in accordance with the statute, then the record reflects a proceeding in violation of the

statute. Deck, 954 S.W.2d at 112. Such violation is an error on the face of the record and the

expunction order must be set aside. See id.

        The clerk’s record contains a document entitled “Court’s Notice of Setting or Resetting,”

which notes the hearing on the expunction is being reset to May 8, 2012. The second page of the

document provides a list of the parties to whom the notice is to be sent via facsimile. The list does


3
 The court recognizes the difficulty in proving the absence of community supervision with physical evidence as the
movant is seeking to prove a negative. Gonzalez could have satisfied this burden with testimony or an affidavit.

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not include DPS. We therefore hold the face of the record reflects the trial court failed to give

DPS the required statutory notice regarding the expunction hearing in addition to the legally

insufficient evidence at trial.

                                           CONCLUSION

        Based on the foregoing, we sustain DPS’s legally sufficiency issue, reverse the trial court’s

judgment, and render judgment denying the expunction. Additionally, pursuant to DPS’s prayer

for relief, we order all documents that were turned over to the trial court, or to Gonzalez or her

counsel, be returned to the submitting agencies. See Green, 373 S.W.3d at 115.


                                                  Marialyn Barnard, Justice




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