                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-14-00138-CV


                           EX PARTE KEITH ROGERS POST

                           On Appeal from the 21st District Court
                                  Burleson County, Texas
             Trial Court No. 27,422, Honorable Reva Towslee Corbett, Presiding

                                  September 24, 2014

                            MEMORANDUM OPINION
                   Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       The Texas Department of Public Safety (Department) has filed a restricted

appeal of an order of expunction granted to Keith Rogers Post.            The Department

contends that Post was not entitled to an expunction because he had, in fact, been

convicted of an offense as a result of his arrest. Post did not favor the Court with a

brief. We will reverse.


                          Factual and Procedural Background


       On January 9, 2011, Post drove his truck at approximately 90 mph around a

curve on a wet road. At the scene, he was arrested and, subsequently, charged with
the offense of reckless driving, a class B misdemeanor offense.1 On March 13, 2012,

Post entered a plea of guilty to the class C offense of reckless driving and paid a fine of

$500 plus costs of court. The cause number for the class B complaint was C-CR-11-

20,218 in the County Court of Burleson County, Texas. The Judgment and Sentence

for the plea of guilty to the class C offense of reckless driving is in cause number 20,218

in the County Court of Burleson County, Texas.


       On July 12, 2013, Post filed a petition for expunction of records related to the

charge of reckless driving. The petition avers that the applicable cause number and

court is cause number 20,218 in the County Court of Burleson County, Texas.


       The Department filed an answer asserting that Post was barred from obtaining

an expunction because he had, in fact, been convicted of an offense as a result of the

arrest in question. The trial court granted the expunction on November 4, 2013. The

Department was not present at the hearing. Further, no reporter’s record was made of

the hearing.


       The Department now brings this restricted appeal. We will reverse the judgment

granting the expunction and render judgment denying the expunction.


                                                 Analysis


       The record before this Court affirmatively demonstrates that the Department did

not participate in the trial of the expunction and did not have an opportunity to correct an

erroneous judgment. See Freebird Bail Bonds v. State, No. 10-11-00301-CR, 2013

Tex. App. LEXIS 9646, at *3 (Tex. App.—Waco Aug. 1, 2013, no pet.) (mem. op., not

       1
           See TEX. TRANSP. CODE ANN. § 545.401 (West 2011).

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designated for publication) (citing TAC Americas, Inc. v. Boothe, 94 S.W.3d 315, 318

(Tex. App.—Austin 2002, no pet.)).        To be successful in a restricted appeal, the

Department’s notice of restricted appeal must be filed 1) within six months after the

judgment is signed; 2) by a party to the lawsuit; 3) who did not participate in the hearing

that resulted in the judgment complained of; 4) who did not file a timely post-judgment

motion or request for findings of fact and conclusions of law; and 5) error must be

apparent on the face of the record. See TEX. R. APP. P. 30; Freebird Bail Bonds, 2013

Tex. App. LEXIS 9646, at *3. Additionally, the face of the record, for the purpose of the

restricted appeal, consists of all papers on file in the appeal. See Freebird Bail Bonds,

2013 Tex. App. LEXIS 9646, at *3 (citing TAC Americas, 94 S.W.3d at 318; see also

Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per

curiam)).


         The record demonstrates that the Department timely filed its notice of restricted

appeal on March 28, 2014. Further, the record demonstrates that the Department was

a party to the lawsuit and did not participate in the hearing that resulted in the judgment

of expunction. Likewise, the record demonstrates that there was no post-judgment

motion filed by the Department and there was no request for findings of fact and

conclusions of law. Therefore, the first four elements of a successful restricted appeal

are present. See TEX. R. APP. P. 30; Freebird Bail Bonds, 2013 Tex. App. LEXIS 9646

at *3.


         We now turn to the issue of whether error is apparent on the face of the record.

Expunction of criminal records is governed by Chapter 55 of the Texas Code of Criminal

Procedure. Specifically at issue before us are the requirements of article 55.01. See

                                             3
TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2014). Post alleged in his petition

for expunction that the misdemeanor offense was dismissed and, therefore, he is

entitled to an expunction. As pertinent for our consideration, article 55.01 provides as

follows:


       (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:


              (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 is no court-ordered community supervision
                  under Article 42.12 for the offense, unless the offense is
                  a Class C misdemeanor . . . .

       The record of the trial court that is before this Court indicates that if Post’s class

B misdemeanor offense of reckless driving was dismissed, it was dismissed as part of a

plea bargain by which Post would enter a plea of guilty to the class C misdemeanor

offense of reckless driving. Before us we have, as part of the record, the judgment and

sentence for the class C misdemeanor offense of reckless driving. This is important

because the burden to prove that the applicant has complied with the statute and is

therefore entitled to an expunction is on the applicant. See McCarroll v. Tex. Dept. of

Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002, no pet.). The law

provides that a plea to an offense that corresponds to the offense for which the

applicant was arrested will serve to bar an expunction. See In re O.R.T., 414 S.W.3d

330, 335 (Tex. App.—El Paso 2013, no pet.). This will be true even where the offense

that an applicant pleads guilty to is a class C misdemeanor. See Rodriguez v. State,

224 S.W.3d 783, 785 (Tex. App.—Eastland 2007, no pet.).



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       As previously stated, the record before this Court clearly points to the fact that

Post entered a plea bargain agreement to plead guilty to the class C offense of reckless

driving. Accordingly, Post was not entitled to expunction of the records for his arrest for

the Class B misdemeanor offense of reckless driving. The same is clear from the face

of the record. See TEX. R. APP. P. 30; Freebird Bail Bonds, 2013 Tex. App. LEXIS

9646, at *3. We sustain the Department’s first issue and, therefore, need not reach its

second issue. See TEX. R. APP. P. 47.1.


                                       Conclusion


       Having sustained the Department’s first issue, we reverse the judgment of the

trial court and render judgment denying the expunction.




                                                 Mackey K. Hancock
                                                     Justice




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