      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-17-00792-CV



                         Texas Department of Public Safety, Appellant

                                                   v.

                                         J. W. M., Appellee


   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
           NO. 20353, HONORABLE JOHN GAUNTT, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The Texas Department of Public Safety (the Department) brings this restricted appeal

of the trial court’s order granting J.W.M.’s petition to expunge his arrest for insurance fraud.

See Tex. Penal Code § 35.02(a). The Department argues in one issue that J.W.M. presented legally

insufficient evidence to establish his entitlement to expunction. For the reasons that follow, we will

reverse and render judgment denying his petition.


                                          BACKGROUND

                J.W.M. argued in his petition that he was entitled to expunge the records of his arrest

for fraud because he had been released, the charge did not result in a final conviction and was no

longer pending, and the indictment had been “dismissed or quashed.” See Tex. Code Crim. Proc.

art. 55.01(a)(2)(A)(ii). The trial court scheduled a hearing on the petition for July 14, 2017, and sent

notice to the Department, the Lampasas County Attorney, and the other governmental entities named
in J.W.M.’s petition as possessing records subject to expunction. See id. art. 55.02, § 2(b)(8)

(directing expunction petitioners to list all governmental entities that might possess records

subject to expunction), (c) (requiring trial court to send “reasonable notice” of hearing to each

affected entity).

                The Department filed an answer generally denying J.W.M.’s allegations, but its

counsel was not present at the hearing. At the beginning of the hearing, the trial court commented

that notice had been sent to the Department, and the assistant county attorney stated: “This morning

I contacted by telephone the [Department] attorney that filed the answer. They indicated they are

not coming. They would just ask the Court [to] consider their answer and the arguments made

therein.” The hearing proceeded with the county attorney, J.W.M., and his counsel.

                The parties focused their arguments on whether J.W.M. met the requirements for

expunction when a charging instrument was presented following the arrest. If the statute of

limitations on the offense has not expired, as it had not here, expunction is only available if the

indictment was dismissed due to one of four enumerated reasons. See id. art. 55.01(a)(2)(A)(ii), (B).

J.W.M. did not specify in his petition which ground allegedly occurred here but argued at the hearing

that the indictment was dismissed because it was “void.” See id. art. 55.01(a)(2)(A)(ii)(d). The trial

court heard arguments from the parties and brief testimony from J.W.M. and took judicial notice of

its file from the fraud case.

                The trial court’s case file reflects that a grand jury presented an indictment charging

J.W.M. with insurance fraud on April 10, 2015. J.W.M. filed a motion to quash arguing that the

indictment failed to specify which subsection he allegedly violated by the specific conduct at issue.



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The trial court noted on its docket sheet that “the indictment is likely not specific” but reserved its

ruling because the county attorney prosecuting the case stated that he intended to seek a corrected

indictment from the grand jury. The county attorney ultimately filed his own motion to dismiss the

indictment, giving the reason that a grand jury had presented an indictment charging J.W.M. with

the offense of fabricating evidence and he wished to proceed only on the new charge.1 At the bottom

of the same motion is a preprinted order that the presiding judge signed the same day.

                The trial court announced at the conclusion of the expunction hearing that it was

granting J.W.M.’s petition and later signed an order to that effect. The Department took this

restricted appeal of that order. See Tex. R. App. P. 30.


                                           DISCUSSION

                To sustain its restricted appeal, the Department must prove: (1) it filed notice of the

restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying

lawsuit, (3) it did not participate in the hearing that resulted in the judgment complained of and did

not timely file any post-judgment motions or requests for findings of fact and conclusions of law,

and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886

(Tex. 2014) (per curiam). These requirements are mandatory and jurisdictional. Cox v. Cox,

298 S.W.3d 726, 730 (Tex. App.—Austin 2009, no pet.). Only the third and fourth requirements

are at issue here.




        1
           The full text of the motion reads: “Case investigation to led to charge of tampering /
fab[ricating] evidence - a third degree felony. 2 charges/indictment would be confusing to the jury.”

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Non-participation

                Whether an appellant meets the non-participation requirement turns on whether it

“participated in the decision-making event” that resulted in the adjudication of its rights. Texaco,

Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996); see Bahar v. Lyon Fin. Servs.,

330 S.W.3d 379, 389 (Tex. App.—Austin 2010, pet. denied). It is the fact of non-participation,

rather than the reason for it, that determines the right to take a restricted appeal. Texaco, 925 S.W.2d

at 590. We construe non-participation liberally in favor of the right of appeal. Pike-Grant,

447 S.W.3d at 886.

                J.W.M. argues that the Department effectively participated in the hearing by filing

an answer and having the assistant county attorney argue its position to the trial court. He relies on

C&V Club v. Gonzalez, a case where the court of appeals held that the appellant, Vincent Mercado,

participated because he “was represented by counsel who was present and vocal during the entire

hearing” even though Mercado was not personally present. 953 S.W.2d 755, 759 (Tex.

App.—Corpus Christi 1997, no writ). J.W.M. argues that the county attorney acted for the

Department and kept it informed in much the same way that Mercado’s lawyers kept him informed

throughout the litigation. The comparison is not apt because the expunction statute authorizes each

entity named in the petition to represent itself and to appeal the trial court’s ruling. See Tex. Code

Crim. Proc. art. 55.02, §§ 2 (c-1), 3(a); Texas Dep’t of Pub. Safety v. J.B.R., 510 S.W.3d 610, 616

(Tex. App.—El Paso 2016, no pet.). There is no evidence that the Department asked the county

attorney to represent it, and we decline to hold that the county attorney assumed that responsibility

by conveying a message that merely called the trial court’s attention to the Department’s answer.



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See Ex parte Stiles, 958 S.W.2d 414, 417-18 (Tex. App.—Waco 1997, pet. denied) (holding that the

district attorney did not represent Department in expunction proceeding when there was no

agreement to that effect).

               J.M.W. also makes a broader point that we should not allow the Department to take

a restricted appeal because of its deliberate absence from the hearing. His argument assumes that

the right to take a restricted appeal has an equitable component, but a restricted appeal “is not an

equitable proceeding.” Texaco, 925 S.W.2d at 590. As a result, there is no requirement that the

appellant “show diligence or lack of negligence before its complaints will be heard.” Id. Applying

this rule to the record before us, the fact that the Department had filed an answer and had notice of

the hearing does not change the fact that it did not participate in the decision-making event that

resulted in the expunction order. See id. (observing that “it is the fact of nonparticipation, not the

reason for it, that determines the right” to take a restricted appeal); see also Texas Dep’t of Pub.

Safety v. J.W.D., No. 03-14-00101-CV, 2014 WL 7464229, at *1 (Tex. App.—Austin Dec. 31, 2014,

pet. denied) (mem. op.) (reaching same conclusion on facts similar to this case).

               We conclude that the Department meets the non-participation requirement for a

restricted appeal.


Entitlement to Expunction

               The Department argues that there is error on the face of the record because J.W.M.

failed to provide legally sufficient evidence of his entitlement to expunction. The face of the record

in a restricted appeal consists of all the papers on file, including the reporter’s record. Norman




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Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). A claim that insufficient

evidence supports a judgment is reviewable on a restricted appeal. Id.

               Expunction is not a right but a statutory privilege, and the petitioner bears the burden

of proving that each of the required conditions have been met. Texas Dep’t of Pub. Safety v. G.B.E.,

459 S.W.3d 622, 625 (Tex. App.—Austin 2014, pet. denied) (en banc). To carry this burden, the

petitioner must provide more than allegations in a verified pleading. See Ex parte K.R.K.,

446 S.W.3d 540, 544 (Tex. App.—San Antonio 2014, no pet.) (noting that “allegations in a petition

seeking expunction are not evidence”). “The trial court must strictly comply with the statutory

requirements, and has no equitable power to expand the remedy’s availability beyond what the

legislature has provided.” Texas Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex.

App.—Austin 2010, no pet.) (quoting T.C.R. v. Bell Cty. Dist. Attorney’s Office, 305 S.W.3d 661,

663 (Tex. App.—Austin 2009, no pet.)).

               We review a trial court’s ruling on an expunction petition for a clear abuse of

discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). A court abuses its discretion when

it acts without reference to guiding rules or principles or without supporting evidence. G.B.E.,

459 S.W.3d at 624. When reviewing factual matters, we may not substitute our judgment for the

trial court’s unless it is clear from the record that the trial court could reach only one decision. Id.

               When reviewing a legal-sufficiency challenge, we review all the evidence in the light

most favorable to the judgment, credit favorable evidence if a reasonable fact finder could and

disregard contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson,




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168 S.W.3d 802, 807 (Tex. 2005). We will sustain a legal-sufficiency complaint if the record

reveals, among other circumstances, no evidence of a vital fact. Id. at 810.

                The Department contends that J.W.M. provided no evidence that the fraud indictment

“was dismissed or quashed because . . . the indictment . . . was void.” Tex. Code Crim. Proc. art.

55.01(a)(2)(A)(ii)(d). Rather, the only evidence in the record regarding the reason for the dismissal

is the ground stated in the county attorney’s motion to dismiss, that he preferred to go forward solely

on the fabrication-of-evidence charge. Generally, an indictment is “‘void’ only if it fails to constitute

an indictment at all because it fails to charge (1) a person, (2) the commission of an offense, or (3) an

offense for which the trial court has subject-matter jurisdiction.” Ex parte Koester, 450 S.W.3d 908,

912 n. 2 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Teal v. State, 230 S.W.3d 172,

179-80 (Tex. Crim. App. 2007)). J.W.M. does not point to any evidence that the indictment was

dismissed for any of these reasons, and our own review of the record does not disclose any evidence

that the trial court dismissed the indictment for a jurisdictional defect. Cf. Ex parte Jackson,

132 S.W.3d 713, 715-16 (Tex. App.—Dallas 2004, no pet.) (holding that petitioner carried this part

of his burden by offering unpublished opinion of court of criminal appeals dismissing indictments

against him as void). We conclude that no evidence supports this element of J.W.M.’s claim.

Because J.W.M. failed to prove his entitlement to expunction, the trial court abused its

discretion by granting him relief. See Texas Dep’t of Pub. Safety v. M.G., No. 03-16-00279-CV,

2018 WL 1937311, at *4 (Tex. App.—Austin Apr. 25, 2018, pet. denied) (mem. op.) (holding that

trial court abused its discretion because petitioner provided no evidence that indictment was

dismissed for reason reflecting absence of probable cause). We sustain the Department’s sole issue.



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                                          CONCLUSION

               We reverse the trial court’s order and render judgment denying J.W.M.’s petition.

Pursuant to the Department’s prayer for relief, we order that all documents turned over to the

trial court, J.W.M., or his counsel be returned to the submitting agencies. See Ex parte Elliot,

815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of expunction applies to all

affected agencies, even if they did not participate in appeal).



                                               _________________________________________
                                               Cindy Olson Bourland, Justice

Before Justices Puryear, Bourland, and Toth

Reversed and Rendered

Filed: December 12, 2018




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