                               NUMBER 13-09-256-CV

                              COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                               Appellant,

                                             v.

JUANA MARIA GUTIERREZ,                                                            Appellee.


                     On appeal from the 107th District Court
                           of Nueces County, Texas.


                           MEMORANDUM OPINION

                 Before Justices Yañez, Benavides, and Vela
                   Memorandum Opinion by Justice Vela

       In this restricted appeal, appellant, Texas Department of Public Safety (“DPS”), asks

this Court to reverse the trial court's order granting a petition for the expunction of records

filed by appellee, Juana Maria Gutierrez. By one issue, the DPS contends Gutierrez is not

entitled to an expunction of records. We reverse and remand for proceedings consistent

with this opinion.
                                               I. BACKGROUND 1

         On April 22, 2002, Gutierrez pleaded guilty to the class A misdemeanor charge of

resisting arrest, and was placed on deferred adjudication community supervision. The trial

court dismissed the case on April 22, 2003, finding that she had complied with the

conditions of deferred adjudication. On October 18, 2003, Gutierrez was arrested for

burglary of a habitation with intent to commit assault. The State dismissed the charges in

the burglary case on October 19, 2003. Thereafter, on July 29, 2008, Gutierrez petitioned

the trial court to expunge the record of her arrest in both the resisting arrest and the

burglary cases.         At a hearing at which DPS was not present, Gutierrez’s counsel

acknowledged to the trial court that Gutierrez was only eligible for expunction with respect

to the burglary charge and stated that he would “redo the order showing where we will

bypass [the resisting arrest charge] and grant [relief on the burglary charge].” However,

the trial court subsequently signed an order granting expunction on both charges.

                                           II. RESTRICTED APPEAL

         To attack a trial court's judgment by restricted appeal, the DPS must show that (1)

a notice of appeal was filed within six months of the date the complained-of judgment was

signed; (2) appellant was a party to the suit who did not participate in the hearing that

resulted in the judgment or order; (3) appellant did not timely file a post-judgment motion,

or request findings of fact and conclusions of law, or file a notice of appeal within the time

permitted under rule 26.1(a); and (4) the complained-of error is apparent from the face of


         1
          The statem ent of facts set out in appellant's brief are to be accepted as true if supported by the
record unless contradicted by another party. T EX . R. A PP . P. 38.1(g). In this case, Morales did not file a brief.
W e will therefore accept as true the fact statem ent filed by Texas Departm ent of Public Safety (DPS), if
supported by record references.

                                                         2
the record. TEX . R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.

2004); Tex. Dep't of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.–Corpus

Christi, 2007, no pet.); see TEX . R. APP. P. 26.1(c).

           DPS filed its notice of appeal within six months of the date that the trial court signed

the order.2 DPS is a proper party to this suit because DPS was notified of the hearing,

DPS filed an answer, and Gutierrez listed DPS as an entity potentially having records that

he sought expunged. See Tex. Dep't of Pub. Safety v. Arbelo, 170 S.W.3d 734, 735 (Tex.

App.–Amarillo 2005, no pet.) (providing that listing the entity as potentially having records

sought expunged "permits one to reasonably deem the DPS as a party to the action").

DPS did not participate in the hearing expunging Gutierrez's record.3 In its notice of

restricted appeal, DPS states that it did not file any post-judgment motions, request

findings of fact and conclusions of law, or file a notice of appeal, and the record does not

show otherwise. Finally, as addressed below, the complained-of error is apparent from the

face of the record. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270

(Tex. 1997) (per curiam) (setting out that the face of the record, for purposes of restricted

appeals, consists of all the papers on file in the appeal). Therefore, DPS satisfied each

element for obtaining relief through this restricted appeal.

                                          III. EXPUNCTION OF RECORDS

           By one issue, DPS contends that the trial court abused its discretion by entering an

order expunging Gutierrez's arrest on the resisting arrest charge. DPS argues that

           2
               The trial court signed the order on March 12, 2007, and DPS filed its notice of appeal on Septem ber
7, 2007.

         3
           Although DPS filed an answer to Morales's petition for expunction of records, filing an answer is not
participation for purposes of a restricted appeal. Stubbs v. Stubbs, 685 S.W .2d 643, 645 (Tex. 1985).

                                                           3
Gutierrez was not entitled to relief under article 55.01(2)(B) of the Texas Code of Criminal

Procedure because she was placed on probation as a result of an arrest. See TEX . CODE

CRIM . PROC . ANN . art. 55.01 (Vernon Supp. 2009). We agree.

A. Applicable Law

       To be entitled to an expunction, the petitioner, Gutierrez in this case, has the burden

of proving that all the statutory requirements have been satisfied. "The trial court must

strictly comply with the statutory procedures for expunction, and it commits reversible error

when it fails to comply." Fredricks, 235 S.W.3d at 281. The applicable rules a trial court

applies in determining a person's right to expunction are set out in article 55.01 of the

Texas Code of Criminal Procedure. TEX . CODE CRIM . PROC . ANN . art. 55.01 (Vernon Supp.

2009). Article 55.01 sets out that a person is entitled to expunction of an arrest record if

       (1) the person is tried for the offense for which the person was arrested and
       is:

              (A) acquitted by the trial court, except as provided by
              Subsection (c) of this section; or

              (B) convicted and subsequently pardoned; or

       (2) each of the following conditions exist:

              ....

              (B) the person has been released and the charge, if any, has
              not resulted in a final conviction and is no longer pending and
              there was no court ordered community supervision under
              article 42.12 for any offense other than a Class C
              misdemeanor . . . .

Id.

B. Analysis

       Gutierrez was neither acquitted by the trial court, nor convicted and subsequently

                                              4
pardoned. Therefore, Gutierrez had the burden to show that each of the conditions listed

under article 55.01(2) existed, including, in pertinent part, that there was no court ordered

community supervision. See id., art. 55.01(2)(B). Gutierrez acknowledged in her petition

for expunction and at the hearing that she had served community supervision for the

offense. Thus, she was not entitled to the complained-of expunction.

       Therefore, because Gutierrez has not proven that all the statutory requirements

have been satisfied, specifically that she was not placed on probation under article 42.12,

she is not entitled to expunction of records related to this arrest. See TEX . CODE CRIM .

PROC . ANN . art. 55.01(2)(B). We conclude the trial court erred in entering an order

expunging Gutierrez's record with respect to the resisting arrest charge. DPS's sole issue

is sustained.

                                     IV. CONCLUSION

       Accordingly, we reverse the trial court's expunction order only with respect to the

resisting arrest charge and remand for proceedings consistent with this opinion.



                                                    ROSE VELA
                                                    Justice




Memorandum Opinion delivered and
filed this 12th day of November, 2009.




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