REVERSE AND RENDER and Opinion Filed November 20, 2018




                                           S    In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-17-01424-CV

                               EX PARTE: JAMES BRADSHAW

                       On Appeal from the 296th Judicial District Court
                                    Collin County, Texas
                           Trial Court Cause No. 296-02169-2017

                              MEMORANDUM OPINION
                         Before Justices Bridges, Francis, and Lang-Miers
                                    Opinion by Justice Bridges
       The Texas Department of Public Safety appeals the trial court’s order granting James

Bradshaw’s petition for expunction of records related to a driving while intoxicated offense and a

possession of a controlled substance offense. In four issues, the Department argues Bradshaw was

not entitled to expunction; the order of expunction was not supported by legally sufficient

evidence; the trial court erred in failing to hold a hearing on Bradshaw’s petition; and, alternatively,

if a hearing was held, Bradshaw failed to ensure that a reporter’s record was made of the hearing,

necessitating a new trial.     We reverse the trial court’s order and render an order denying

Bradshaw’s petition for expunction.

       Bradshaw’s petition for expunction stated he was charged by information with driving

while intoxicated on September 9, 2015 but was acquitted on April 17, 2017. The petition also

stated he was charged with possession of a controlled substance on September 9, 2015, but the

case was “rejected by the county.” Bradshaw attached a verification to the petition in which he
stated the facts alleged in the petition were true and correct. The State filed an answer in which it

asserted Bradshaw was arrested on September 9, 2015 for three offenses: the Class B misdemeanor

offense of driving while intoxicated; the Class A misdemeanor offense of possession of a

controlled substance, penalty group 3 ; and a Class B misdemeanor offense of possession of

marijuana. Bradshaw was acquitted of the driving while intoxicated charge but pleaded guilty to

the possession of marijuana and was initially sentenced to deferred adjudication community

supervision. However, Bradshaw was later adjudicated guilty of possession of marijuana and

sentenced to confinement for twenty days and assessed a fine. On September 22, 2017, the trial

court signed an order granting expunction of both the driving while intoxicated and possession of

a controlled substance charges. On December 12, 2017, the Department filed its notice of

restricted appeal.

       In its first issue, the Department argues Bradshaw was not entitled to expunction of any of

the offenses of the arrest because the offenses occurred in the same criminal episode and one of

the offenses resulted in court-ordered community supervision and ultimately, final conviction.

       As an initial matter, we address whether the Department may complain of the expunction

order in a restricted appeal. To successfully attack an order by restricted appeal, the appealing

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 TEX. R. APP. P.

26.1(c), 30; Tex. Dep’t of Pub. Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.—Dallas 2008,

no pet.). An agency protesting an expunction order may appeal the judge’s decision in the same

manner as in other civil cases. TEX. CODE CRIM. PROC. ANN. art. 55.02, § 3(a). All law

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




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represented by counsel at an expunction hearing. See TEX. CODE CRIM. PROC. ANN. art. 55.02, §

2(c–1); Jacobs, 250 S.W.3d at 210.

       The Department, “as a State agency with records subject to expunction, is a party to the

suit within the meaning of the requirements for a restricted appeal.” Jacobs, 250 S.W.3d at 210

(quoting Tex. Dep’t of Pub. Safety v. Moore, 51 S.W.3d 355, 357 (Tex. App. —Tyler 2001, no

pet.)); see also State v. Sink, 685 S.W.2d 403, 404 (Tex. App. —Dallas 1985, no writ) (holding

State had standing to directly appeal ex parte expunction order). In this case, the Department was

served with a copy of the petition for expunction and filed a written response, but it did not

participate either in person or through counsel in the expunction hearing. Thus, the Department

meets the first requirement for raising a restricted appeal.

       The expunction order was signed September 22, 2017, and the Department filed its notice

of appeal on December 12, 2017. Because the Department 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 of the record, but our

scope of review is otherwise the same as that in an ordinary appeal; accordingly, we review the

entire case. Jacobs, 250 S.W.3d at 210. The Department argues error is apparent on the face of

the record because the trial court misinterpreted the expunction statute.

       We review a trial court’s ruling on a petition for expunction for abuse of discretion. State

v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). However, to the extent a ruling on expunction turns

on a question of law, we review any legal conclusions de novo. See id.; see also Collin Cty. Dist.

Attorney’s Office v. Fourrier, 453 S.W.3d 536, 539 (Tex. App.—Dallas 2014, no pet.).

       Expunction is a statutorily–created remedy that allows a person who has been arrested for

the commission of an offense to have the records and files relating to the arrest expunged if the

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person meets the statutory requirements of article 55.01 of the code of criminal procedure.

Fourrier, 453 S.W.3d at 539; see also TEX. CODE CRIM. PROC. ANN. art. 55.01. The purpose of

the expunction statute is to “protect wrongfully–accused people by eradicating their arrest

records.” In re State Bar of Texas, 440 S.W.3d 621, 622 (Tex. 2014). Because the cause of action

is created by statute, all of its provisions are mandatory and require strict compliance for the action

to be sustained. Fourrier, 453 S.W.3d at 539; see also T.S.N., 547 S.W.3d at 620 (“A person is

not entitled to expunction until all of the statutory conditions are met.”). The trial court has no

equitable power to extend the protections of the expunction statute beyond the statute’s stated

provisions. Fourrier, 453 S.W.3d at 539. Although the expunction statute appears in the code of

criminal procedure, an expunction proceeding is civil in nature and the petitioner carries the burden

of proving compliance with the statutory requirements. Id.

        Bradshaw sought expunction generally pursuant to “Chapter 55” of the code of criminal

procedure. The trial court’s expunction order stated Bradshaw was “entitled to expunction as

provided by Article 55.01(a)(2)” of the code of criminal procedure. Article 55.01(a)(1), (2) and

(c) provide, in pertinent part:

        (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:

        (1) the person is tried for the offense for which the person was arrested and is:

            (A) acquitted by the trial court, except as provided by Subsection (c);

        (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,

        (c) A court may not order the expunction of records and files relating to an arrest
        for an offense for which a person is subsequently acquitted, … by the trial court, .
        . . if the offense for which the person was acquitted arose out of a criminal episode,
        as defined by Section 3.01, Penal Code, and the person was convicted of … at least
        one other offense occurring during the criminal episode.

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1),(2)(A) & (c).
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      The Penal Code defines “criminal episode” as the commission of two or more offenses

pursuant to the same transaction or pursuant to two or more transactions that are connected or

constitute a common scheme or plan. Texas Penal Code 3.01.

       On appeal, Bradshaw did not file a brief. His petition for expunction addressed only the

driving while intoxicated and possession of a controlled substance charges and failed to address

the charge for which he was convicted, the possession of marijuana offense. The record reflects

appellant pled guilty to the possession of marijuana charge and was placed on deferred

adjudication community supervision on March 10, 2016. On January 20, 2017, the State filed a

petition to adjudicate Bradshaw’s guilt. On February 23, 2017, the trial court adjudicated

Bradshaw guilty and assessed a fine of $200 and twenty days’ confinement. Thus, Bradshaw was

arrested on September 9, 2015, for three offenses. He was acquitted of one offense, one offense

was “rejected by the county,” and in the final case, he was placed on court-ordered community

supervision and later adjudicated guilty and sentenced to twenty days’ confinement and a fine.

The trial court granted an expunction for an arrest for a driving while intoxicated offense that was

ultimately an acquittal and an arrest for a “rejected” drug offense but did not grant an expunction

for the possession of marijuana offense.

        This Court and others have concluded that subarticle (a)(2) is arrest–based, and a person

seeking expunction must meet the requirements of article 55.01(a)(2) for all charges arising from

an arrest, including showing there was no final conviction or court-ordered community

supervision. Ex parte Hoover, No. 05-16-01363-CV, 2018 WL 2926143, at *3 (Tex. App.—

Dallas June 7, 2018, pet. filed); Tex. Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 630 (Tex.

App.—Austin 2014, pet. denied) (en banc); see also Ex parte C.E.A., No. 12–17–00311–CV, 2018

WL 1940377, at *2 (Tex. App.—Tyler Apr. 25, 2018, no pet.) (mem. op.) (“a person is not entitled

to have any arrest records expunged under Article 55.01(a)(2) when a charge is dismissed, but that

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dismissal results in community supervision for any charge arising from the same arrest.”); S.J. v.

State, 438 S.W.3d 838, 846 (Tex. App.—Fort Worth 2014, no pet.) (appellant not entitled to

expunction because he was placed on court-ordered community supervision for a charge arising

from the arrest); Tex. Dep’t of Pub. Safety v. Crawford, No. 12–12–00072–CV, 2013 WL 776618,

at *1 (Tex. App.—Tyler Feb. 28, 2013, no pet.) (mem. op.) (“A person is not entitled to an

expunction if she was placed on ‘court ordered community supervision’ . . . which includes

deferred adjudication community supervision.”). “If the Legislature wished to permit persons to

expunge records related to a particular charge resulting from an arrest without expunging all

records of the arrest itself, we presume that it would have included language with that meaning in

the statute.” Ex parte De La Garza, No. 13–16–00522–CV, 2018 WL 1417450, at *2 (Tex. App.—

Corpus Christi–Edinburg Mar. 22, 2018, no pet.) (mem. op.) (citing S.J., 438 S.W.3d at 843; Ex

parte S.C., 305 S.W.3d 258, 263 (Tex. App.—Houston [14th Dist.] 2009, no pet.)).

       We conclude that article 55.01(a)(2) “maintains an arrest as the unit of expunction and that,

consequently, a petitioner must prove that each charge arising from the arrest satisfies the

requirements” of article 55.01(a)(2). T. H. v. Tex. Dep’t of Pub. Safety, No. 03-15-00304-CV,

2016 WL 5874869, at *4 (Tex. App.—Austin Oct. 6, 2016, no pet.). Considering the language of

article 55.01(a)(2), the Texas Supreme Court’s opinion in T.S.N., the prevailing case law from our

sister courts, and keeping in mind the statute’s general purpose of permitting expunction of

wrongful arrests, we conclude that a person is not entitled to have any arrest records expunged

under article 55.01(a)(2) when any charge resulted in court-ordered community supervision under

article 42.12 of the code of criminal procedure. See, e.g., T.S.N., 547 S.W.3d at 621-23; G.B.E.,

459 S.W.3d at 629; Ex parte C.E.A., 2018 WL 1940377, at *2; S.J., 438 S.W.3d at 846; Crawford,

2013 WL 776618, at *1.




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       Under these circumstances, we conclude the face of the record establishes Bradshaw was

not entitled to expunction because the court ordered community supervision and later adjudicated

appellant’s guilt for one of the offenses for which he was arrested. See G.B.E., 459 S.W.3d at 629;

Tex. Dep’t of Pub. Safety v. Jacobs, 250 S.W.3d 209, 211 (Tex. App.—Dallas 2008, no pet.).

Because the Department has established error apparent on the face of the record, we resolve its

first issue in its favor. Due to our disposition of the first issue, we need not address the

Department’s remaining issues.

       We reverse the trial court’s order granting expunction and render judgment denying

Bradshaw’s petition for expunction.




                                                  /David L. Bridges/
                                                  DAVID L. BRIDGES
                                                  JUSTICE



171424F.P05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 EX PARTE EX PARTE: JAMES                           On Appeal from the 296th Judicial District
 BRADSHAW                                           Court, Collin County, Texas
                                                    Trial Court Cause No. 296-02169-2017.
 No. 05-17-01424-CV                                 Opinion delivered by Justice Bridges.
                                                    Justices Francis and Lang-Miers
                                                    participating.

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:
    James Bradshaw's petition for expunction is DENIED.

        It is ORDERED that appellant Texas Department of Public Safety recover its costs of
this appeal from appellee James Bradshaw.


Judgment entered November 20, 2018.




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