Reversed and Rendered and Opinion Filed April 10, 2014




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-00476-CV

                 TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
                                    V.
                     RAYMOND TERRELL RADWAY, Appellee

                      On Appeal from the 397th Judicial District Court
                                  Grayson County, Texas
                           Trial Court Cause No. CV-12-1244

                             MEMORANDUM OPINION
                           Before Justices Moseley, Francis, and Lang
                                   Opinion by Justice Francis
       The Texas Department of Public Safety brings this restricted appeal of the trial court’s

expunction order in favor of Raymond Terrell Radway. In two issues, DPS contends we must

reverse the trial court’s order because Radway was not entitled to an expunction or, alternatively,

because there is no reporter’s record. We reverse the trial court’s order and render judgment

denying Radway’s petition for expunction.

       To successfully attack an order by restricted appeal, DPS 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. As a State agency with

records subject to expunction, DPS is a party to the suit within the meaning of the requirements
of a restricted appeal. See TEX. CODE CRIM. PROC. ANN. art. 55.02, 2(c-1); Tex. Dept. of Pub.

Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.―Dallas 2008, no pet.).

        In this case, the record shows DPS filed an answer to Radway’s petition for expunction

on October 5, 2012. Although it received notice of the hearing, DPS did not participate either in

person or through counsel in the expunction hearing and did not file any post-judgment

proceedings, such as a motion for new trial. Thus, DPS meets the first requirement for raising a

restricted appeal.

       The expunction order was signed October 9, 2012, and DPS filed its notice of restricted

appeal April 11, 2013, within the six-month deadline provided by rule 26.1(c). Because DPS

timely filed its notice of restricted appeal, it meets the second requirement for raising a restricted

appeal. We now 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; thus, we review the entire

case. Jacobs, 250 S.W.3d at 210. Our review of the entire case encompasses the review of legal

and factual insufficiency claims. See id.

       In its first issue, DPS argues error exists because the record shows Radway pleaded guilty

to possession of less than 2 ounces of marijuana, a class B misdemeanor. We agree.

       Radway’s original amended petition asserted he was entitled to expunction under article

55.01(a)(2) of the code of criminal procedure. That article provides a person who has been

placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor

is entitled, under certain conditions, to expunction of all records and files relating to the arrest.

TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2013). To be entitled to expunction,

Radway had to establish he had been released and the charge, if any, did not result in a final

conviction and was no longer pending and there was no court-ordered community supervision

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under article 42.12 for the offense, unless the offense was a class C misdemeanor. See TEX.

CODE CRIM. PROC. ANN. art. 55.01(a)(2).

       A review of the record shows Radway was charged with possession of less than two

ounces of marijuana, a class B misdemeanor. After Radway pleaded guilty, the trial court found

him guilty and assessed punishment at 180 days in Grayson County jail, probated for 180 days.

The face of the record establishes Radway was not entitled to expunction because he pleaded

guilty and was found guilty of a class B misdemeanor. 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 issue.

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

Radway’s petition for expunction.




                                                    /Molly Francis/
130476F.P05                                         MOLLY FRANCIS
                                                    JUSTICE




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

TEXAS DEPARTMENT OF PUBLIC                             On Appeal from the 397th Judicial District
SAFETY, Appellant                                      Court, Grayson County, Texas
                                                       Trial Court Cause No. CV-12-1244.
No. 05-13-00476-CV         V.                          Opinion delivered by Justice Francis,
                                                       Justices Moseley and Lang participating.
RAYMOND TERRELL RADWAY,
Appellee

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

        It is ORDERED that appellant TEXAS DEPARTMENT OF PUBLIC SAFETY recover
its costs of this appeal from appellee RAYMOND TERRELL RADWAY.


Judgment entered this 10th day of April, 2014.




                                                       /Molly Francis/
                                                       MOLLY FRANCIS
                                                       JUSTICE




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