

Opinion filed August 4,
2011
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-10-00018-CV 
                                                    __________
 
             TEXAS
DEPARTMENT OF PUBLIC SAFETY, Appellant
 
                                                             V.
 
                                       KELLY
SOWELL, Appellee

 
                                   On
Appeal from the 335th District Court
 
                                                              Lee
County, Texas
 
                                                      Trial
Court Cause No. 13823
 

 
  M E M O R A N D U M   O P I N I O N   O N   M O T I O
N   F O R   R E H E A R I N G
 
            The Texas
Department of Public Safety has filed a motion for rehearing in this restricted
appeal from an order expunging all records related to the arrest of Kelly
Sowell for the misdemeanor offense of possession of marihuana.  In the motion,
the DPS asserts that there is error on the face of the record based upon
documents attached to the DPS’s answer, which renders the evidence legally
insufficient so support the expunction.  As we recognized in our original
opinion, had those documents been introduced into evidence, Sowell may not have
been entitled to an expunction.  However, the DPS did not appear for trial, and
nothing in the record indicates that the documents attached to the DPS’s answer
were offered into evidence.  Neither pleadings nor attachments to pleadings are
evidence unless they are offered and admitted as evidence by the trial court.  Ceramic
Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722, 724-25 (Tex. App.—San Antonio
2004, no pet.); Gowan v. Tex. Dep’t of Criminal Justice, 99 S.W.3d 319,
322 (Tex. App.—Texarkana 2003, no pet.); State v. Herron, 53 S.W.3d 843,
847 (Tex. App.—Fort Worth 2001, no pet.); see also City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (pleadings do not
constitute summary judgment proof).  Without a record of the evidence presented
at the hearing, we cannot hold that the evidence is legally insufficient to
support the expunction.  
            The
motion for rehearing is denied.  
            
 
                                                                                                PER
CURIAM
 
August 4, 2011
Panel consists of:  Wright, C.J.,
McCall, J., and Hill, J.[1]
 




[1]John G. Hill, Former Justice, Court of Appeals, 2nd
District of Texas at Fort Worth, sitting by assignment.


