REVERSF and RFNI)ER; Opinion issued February 7, 2013




                                               In The
                                  Qtnitrt uf Appia1s
                           iftI! Hitrirt uf cxaa at Dat1a;
                                       No. 05-12-00662-CV


                     EX PARTE VIRGiNIA LYNN BEARCE-BELLOW

                       On Appeal from the 219th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 219-03109-2011


                              MEMORANDUM OPINION
                            Beibre Justices Moselev. Francis. and Lang
                                    Opinion By Justice Francis


        The Texas Department of Public Safety brings this restricted appeal of an expunction order

in favor of Virginia Lynn Bearce-Bellow. In three issues, DPS contends (1) Bearce-Bellow is not

entitled to have her record expunged because she served a term of deferred adjudication as a result

of the arrest, (2) the trial court abused its discretion in ordering expunction because DPS did not

receive notice of the hearing, and (3) the case must be remanded for a new trial because there is no

reporter’s record. We reverse the trial courf s order and render judgment denying Bearce-Bellows

petition for expunction.

        We first address whether DPS may complain of the expunction order in a restricted appeal.

To successfully attack an order by restricted appeal, the complaining party must show it was a party

who did not participate either in person or through counsel in the hearing that resulted in the

judgment complained of, it filed a notice of appeal within six months after the order was signed, and
error is apparent on the face of the record. See Tix. R. Ape. P. 26.1(c). 30.

          An agency protesting an expunction order may appeal the trial court’s decision in the same

manner as in other civil cases. TEx. CODE CIuM. PRoc. ANN. art. 55.02, § 3(a) (West Supp. 2012).

All law enforcement agencies that may have records a petitioner wants expunged are entitled to be

represented by counsel at an expunction hcaring. See Id. art. 55.02.       § 2(c—1); Ta    Dep •I of Pub.

Safely v. Jacobs. 250 S.W.3d 209.210 (Tex. App.—DaIIas 2008, no pet.). As a State agency with

records subject to expunction, DPS is a party to the suit within the meaning ofthe requirements of

a restricted appeal. Jacobs, 250 S.W.3d at 210. In this case, the record shows DPS was served with

a copy ofthe petition for expunction in November2011. three and one-halfmonths after the petition

was filed, but did not file a written response. did not receive notice of the hearing, and did not

participate either in person or through counsel in the expunction hearing. Thus. DPS meets the first

requirement for raising a restricted appeal.

          The expunction order was signed December 8, 2011, and DPS filed its notice ofappeal May

17.2012. within the six-month deadline contemplated in rule 26.1(c). Because DPS 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 ofthe record, but our scope

of review is otherwise the same as that in an ordinary appeal; thus, we review the entire case. Iii

Our review of the entire case encompasses the “review of legal and factual insufficiency claims.”

See Id.

          In its first issue, DPS argues error because the record shows Bearce-Bellow pleaded guilty

to the lesser included offense of assault a Class A misdemeanor, and served a term of deferred

adjudication as a result of her arrest. We agree.




                                                   —2—
       Article 55.01 of the code of criminal procedure provides a person who has been placed under

a custodial or nuncustodial arrest for commission of ci [her a felony or misdemeanor is entitled, under

certain conditions, to expunction of all records and tiles relating to the arrest.   [ic. (‘ODE CRII.


PROC. Ayy. art. 55.01 (West Supp. 2012). To he entitled to expunction under the facts of this case.

Bearce—ilelIow had to establish she has been released and “the charge, if any, has    not   resulted in a

ii nat conviction and is no longer pending and there was no courtordered community supervision

under Article 42. 12/or ihe o,fense, unless the offense is a Class C misdemeanor.    TEN. Conu CRIM.

PROC. ANN.   art. 55.0 1(a)(2) (emphasis added).

       A review of the record shows Bearce-Bellow was arrested and charged with aggravated

assault with a deadly weapon. The order of deferred adjudication in the record shows she pleaded

guilty to the lesser included offense of assault. a Class A misdemeanor. and was placed on deftrred

adjudication for one year. In her petition. Bearce—Bellow alleged she was placed on dePrred

adjudication probation br the lesser included offense of assault by threat or contact, a Class C

misdemeanor. The ftice of the record establishes Bearce-Bellow was not entitled to expunction

because she pleaded guilty to a Class A misdemeanor and the trial court ordered “community

supervision” under article 42.12 of the code of criminal procedure. See Jacobs, 250 S.W.3d at 211.

Because DPS established error apparent on the face of this record, we sustain its first issue. In light

of our disposition. we need not address the remaining two issues.

       We reverse the trial court’s order granting expunction and renderj ucigment denying Bearce

Bellow’s petition for expunction.


                                                         /Molly Francis/
                                                       MOLLY FRANCIS
                                                       J Ii STICE

I 20662F.P05
                                           ..p• ;




                                QuiirI of Appcals
                       FiftI! Jistrirt of Jixas tt Oi11as
                                     JUDGMENT
EX PARTE VIRGINIA LYNN BEARCE-                      Appeal from the 219th Judicial District
BELLOW                                              Court of Collin County, Texas. (Tr.Ct.No.
                                                    219-03109-2011).
No. 05-12-00662-CV                                  Opinion delivered by Justice Francis,
                                                    Justices Moseley and Lang participating.

       In accordance with this Court’s opinion of this date, we REVERSE the trial court’s
judgment and RENI)ER judgment that the petition for expunction is DENIED, We ORDER
the Texas Department of Public Safety recover its costs of this appeal from Virginia Lynn
Bearce-Bellow.


Judgment entered February 7. 2013.



                                                      /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE
