                                   NO. 12-12-00155-CV

                        IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

TEXAS DEPARTMENT OF                              §           APPEAL FROM THE 273RD
PUBLIC SAFETY,
APPELLANT

V.                                               §           JUDICIAL DISTRICT COURT

WILL SMITH, JR.,
APPELLEE                                        §            SABINE COUNTY, TEXAS

                                   MEMORANDUM OPINION
         The Texas Department of Public Safety (DPS) appeals from the trial court’s order granting
expunction for Will Smith, Jr.’s harassment arrest for which he received deferred adjudication
community supervision. In one issue, DPS contends there is legally insufficient evidence to
support the trial court’s order. We affirm in part and reverse and render in part.


                                           BACKGROUND
         Smith was arrested for harassment in 1995. In a separate incident, Smith was arrested for
assault in 1999. In 2011, Smith filed a petition for expunction on both charges. In the petition,
Smith alleged that he received deferred adjudication community supervision for the harassment
charge, and that the assault charge was dismissed. DPS filed an answer.
         At the hearing, Smith appeared pro se. However, none of the respondents, including DPS,
appeared. The trial court held the hearing and a reporter’s record was prepared. During the
hearing, Smith repeated the allegations in his petition, and stated that he received deferred
adjudication for the harassment charge. Nevertheless, at the conclusion of the hearing, the trial
court granted Smith’s motion, and expunged both offenses. DPS filed a restricted appeal with this
court.
                                           EXPUNCTION
       In its sole issue, DPS argues that Smith was not entitled to an expunction of records related
to his harassment arrest because he received deferred adjudication community supervision as a
result of that arrest, and the evidence is therefore legally insufficient to support the trial court’s
expunction order.
Standard of Review
       A party can prevail in a restricted appeal only if (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 postjudgment motions or requests for findings of fact and conclusions of law, and (4)
error is apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; Ins. Co. of State of
Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face
of the record consists of all papers on file in the appeal, including the reporter’s record. Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Flores v. Brimex Ltd.
P’ship, 5 S.W.3d 816, 819 (Tex. App.—San Antonio 1999, no pet.). The absence of legally
sufficient evidence to support a judgment is reviewable in a restricted appeal.              Norman
Commc’ns, 955 S.W.2d at 270; Flores, 5 S.W.3d at 819.
Applicable Law
       Expunction is not a constitutional or common law right, but purely a statutory privilege.
Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex .App.—Austin 2010, no pet.). 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. Harris Cnty. Dist.
Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
Conversely, if the petitioner demonstrates that he has satisfied each of the requirements under
Article 55.01(a), the trial court has a mandatory duty to grant the expunction petition. See Heine
v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 648 (Tex. App.—Austin 2002, pet. denied).
Although the law that governs expunctions is part of the code of criminal procedure, an
expunction proceeding is a civil proceeding that is governed by the rules of civil procedure. See
Carson v. State, 65 S.W.3d 774, 784 (Tex. App.—Fort Worth 2001, no pet.).

                                                  2
         It is well settled law that a person is not entitled to an expunction if the person was placed
on ―court ordered community supervision‖ under Article 42.12 of the Texas Code of Criminal
Procedure, including deferred adjudication community supervision. See TEX. CODE CRIM. PROC.
ANN. art. 55.01(a)(2) (West Supp. 2012); Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807
S.W.2d 572, 573–74 (Tex. 1991); see also Nail, 305 S.W.3d at 683–84; Tex. Dep’t of Pub. Safety
v. Jacobs, 250 S.W.3d 209, 211 (Tex. App.—Dallas 2008, no pet.); Tex. Dep’t of Pub. Safety v.
Fredricks, 235 S.W.3d 275, 282 (Tex. App.—Corpus Christi 2007, no pet.); Tex. Dep’t of Pub.
Safety v. Moran, 949 S.W.2d 523, 527 (Tex. App.—San Antonio 1997, no writ). The purpose of
Article 55.01 is to allow wrongfully arrested individuals to clear their record, and conversely, to
not allow expunction of arrest and court records relating to an arrest for an offense to which a
person pleads guilty and receives community supervision pursuant to a guilty plea. See J.T.S.,
807 SW.2d at 574.
         Assertions of fact in the party’s live pleadings, not pleaded in the alternative, are regarded
as formal judicial admissions. Houston First Am. Sav. v. Mustek, 650 SW.2d 764, 767 (Tex.
1983). If the admissions are clear, deliberate, and unequivocal, they are conclusive upon the party
making them. Regency Advantage Ltd. P’ship. v. Bingo Idea-Watauga, Inc., 936 S.W.2d 275,
278 (Tex. 1996); Mendoza v. Fid. Guar. Ins. Underwriters, Inc., 606 SW.2d 692, 694 (Tex.
1980).
         Additionally, a party’s testimonial declarations can be treated as conclusive judicial
admissions if (1) the declaration was made during a judicial proceeding, (2) the declaration is
contrary to a fact that is essential to the testifying person’s claim or defense, (3) the declaration
was deliberate, clear, and unequivocal, (4) allowing the declaration to have conclusive effect
would be consistent with the public policy of the claim or defense, and (5) the declaration is not
destructive to the other party’s claim. Mendoza, 606 SW.2d at 694.
Discussion
         Smith handwrote in his petition that his harassment arrest was ―deferred.‖ Next to this
notation, he handwrote that his assault arrest was ―dismissed.‖ This provides evidence that he was
familiar with the distinctions between deferred adjudication and dismissal of a charge. At the
hearing, Smith stated that he wanted to obtain expunction for these arrests so he can return to

                                                   3
working in the law enforcement field. Also at the hearing, Smith reiterated the assertions in his
pleading, and stated that he received ―deferred adjudication‖ for his harassment arrest. After
considering all of this information together, we conclude that Smith made clear, deliberate, and
unequivocal assertions that he was placed on deferred adjudication for the harassment arrest.
These statements, which were made in his live pleadings and during a judicial proceeding, were
contrary to Smith’s claim that he was entitled to an expunction. To hold that these statements
conclusively establish Smith was placed on deferred adjudication community supervision is
consistent with the public policy of expunctions, which is, as we have stated, to prevent those who
have pleaded guilty and received deferred adjudication community supervision from expunging
the offense.
       Smith was charged with the burden of proving his entitlement to an expunction by legally
sufficient evidence, but the record contains a complete absence of any evidence establishing that
right. In fact, his admissions conclusively establish that he served a term of deferred adjudication
for the offense that he sought to expunge. Thus, Smith failed to comply with Article 55.01(a)(2),
and there is not legally sufficient evidence that would enable reasonable people to reach the
verdict under review. See In re S.D., 349 S.W.3d 76, 79 (Tex. App.—El Paso 2010, no pet.)
(stating that although expunction is normally subject to abuse of discretion standard or review,
legally sufficient standard of review is appropriate when appellant argues that there is lack of
evidence to support an order of expunction). As a matter of law, Smith was not entitled to relief.
Accordingly, the trial court erred in ordering an expunction of his harassment arrest.
       The record establishes that DPS timely filed a notice of restricted appeal, was a party to
the underlying lawsuit, did not participate in the hearing that resulted in the trial court’s order, and
did not file any postjudgment motions or requests for findings of fact and conclusions of law.
Also, we have concluded that error is apparent on the face of the record. Therefore, DPS is
entitled to prevail in this restricted appeal. We sustain DPS’s sole issue.


                                            DISPOSITION
       We reverse the trial court’s judgment insofar as it pertains to expunction of Smith’s
harassment arrest and render judgment in favor of DPS.             We affirm the remainder of the

                                                   4
judgment. Furthermore, pursuant to DPS’s prayer for relief, we order all documents that were
turned over to the district court or to Smith be returned to the submitting agencies. See Ex parte
Elliot, 815 S.W.2d 251, 252 (Tex.1991) (per curiam) (reversal of expunction applies to all
respondents in trial court, even if they did not participate in appeal).


                                                                SAM GRIFFITH
                                                                  Justice


Opinion delivered December 20, 2012.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     (PUBLISH)


                                                            5
                                 COURT OF APPEALS
            TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                         DECEMBER 20, 2012


                                        NO. 12-12-00155-CV

                        TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                     Appellant
                                        V.
                                  WILL SMITH, JR.,
                                      Appellee
  _____________________________________________________________________________
                       Appeal from the 273rd Judicial District Court
                       of Sabine County, Texas. (Tr.Ct.No. 12708)
  _____________________________________________________________________________
                        THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that there was error in the
judgment of the court below insofar as it pertains to the expunction of Smith’s harassment arrest.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below wherein the trial court ordered an expunction of Smith’s harassment arrest is hereby
reversed and judgment rendered in favor of DPS. In all other respects, the judgment of the trial
court is affirmed. It is further ORDERED that all documents that were turned over to the district
court or to Smith be returned to the submitting agencies. All costs in this cause are adjudged
against the Appellee, WILL SMITH, JR., for which let execution issue; and that this decision be
certified to the court below for observance.
                        Sam Griffith, Justice.
                      Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                       6
