                                   NO. 07-05-0015-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                        PANEL D

                                    JULY 8, 2005
                          ______________________________

                     TEXAS DEPARTMENT OF PUBLIC SAFETY,

                                                                      Appellant
                                             v.

                            JESSIE McGLOCKLIN ARBELO,

                                                                      Appellee
                        _________________________________

           FROM THE 46TH DISTRICT COURT OF WILBARGER COUNTY;

                      NO. 23,547; HON. TOM NEELY, PRESIDING
                        _______________________________

                                     Opinion
                         _______________________________

Before QUINN, C.J., and REAVIS and CAMPBELL, JJ.

       Through a restricted appeal, the Texas Department of Public Safety (DPS) asks that

we reverse an Order of Expunction signed on July 22, 2004. The subject of the order is

Jessie McGlocklin Arbelo (Arbelo). The record discloses that 1) Arbelo petitioned for

expunction of all her criminal records and files on July 15, 2004, 2) a copy of the petition

was sent to the DPS by certified mail, return receipt requested, and 3) the DPS received

the petition on July 22, 2004, or the day the court signed the expunction order. According

to the DPS, the order should be reversed because it was executed in violation of pertinent
statute, i.e. that the trial court failed to hold the hearing and inform the DPS of the hearing

date within the parameters established by statute. We agree and reverse the order.

       To be entitled to relief, one prosecuting a restricted appeal must illustrate that 1) his

notice of appeal was filed within six months of the date the judgment was signed, 2) he was

a party to the suit, 3) he did not participate in the hearing that resulted in the judgment or

order or timely file any post-judgment motions or requests for findings of fact and

conclusions of law, and 4) error appears on the face of the record. Starks v. Texas Dept.

Crim. Justice, 153 S.W.3d 621, 625 (Tex. App.–Amarillo 2004, no pet.). The record before

us discloses that the DPS filed its notice of appeal on January 13, 2005, or within six

months of the date that the trial court signed the order in question. Furthermore, Arbelo

listed, in her petition, the DPS as an entity potentially having records she sought to

expunge. This circumstance permits one to reasonably deem the DPS as a party to the

action. And, that the governmental agency did not receive the petition until the very day

that the trial court acted upon it hardly indicates that the agency participated in any hearing

from which the order arose. Indeed, the DPS averred in their notice of appeal that it neither

participated in any such hearing nor moved for post-judgment relief or findings of fact and

conclusions of law. Moreover, the record does not belie this representation.

       Next, authority holds that the failure of the trial court to abide by various provisions

of the statute regulating the expunction of criminal records mandates reversal. The

provisions contemplated by that authority include those relating to the time within which any

hearing on the petition may be held and the prior notice of the hearing date to which the

parties are entitled. See e.g., Texas Dept. Pub. Safety v. Prather, No. 04-03–00612-CV,

2004 Tex. App. LEXIS 4253 (Tex. App.–San Antonio May 12, 2004, no pet.) (reversing the

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expunction order since the trial court did not abide by the statutory requirements pertaining

to time and notice); Texas Dept. Pub. Safety v. Deck, 954 S.W.2d 108, 112-13 (Tex.

App.–San Antonio 1997, no pet.) (reversing the order because the DPS failed to receive

notice of the new hearing date). Moreover, statute specifies that a hearing on the petition

cannot be held any “sooner than thirty days from the filing of the petition . . . .” TEX . CODE

CRIM . ANN . art. 55.02, §2(c) (Vernon Supp. 2005). So too does it require the trial court to

“give reasonable notice of the hearing to each official or agency or other entity named in

the petition by certified mail . . . .” Id. When we compare these two statutory duties to the

facts appearing on the face of the record, we cannot but hold that they were breached.

       First, the hearing at bar was premature for it was held long before expiration of the

30-day period prescribed by art. 55.02, §2(c). Second, the DPS was denied reasonable

notice of the hearing for it did not even receive service of the petition until the very day the

trial court acted upon it. Serving the DPS with the petition sometime during the day of July

22nd does not illustrate reasonable prior notice of the court’s intent to act on the petition

that very day.

       In sum, the DPS satisfied each element for obtaining relief via a restricted appeal.

Thus, we reverse the Order of Expunction and remand the cause for further proceedings.



                                                   Brian Quinn
                                                   Chief Justice




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