Reversed and Rendered, and Opinion Filed March 28, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-12-00525-CV

                 TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
                                    V.
                           JORDAN FOSTER, Appellee

                      On Appeal from the 354th Judicial District Court
                                   Hunt County, Texas
                              Trial Court Cause No. 76,266

                                           OPINION
                           Before Justices Moseley, Francis, and Lang
                                    Opinion by Justice Lang
       The Texas Department of Public Safety (DPS) brings a restricted appeal of the district

court’s order of expunction granting Jordan Foster’s petition for expunction as to the

misdemeanor offense of assault causing bodily injury and the felony offense of aggravated

sexual assault of a child younger than fourteen years of age. Foster did not file a brief on appeal.

DPS raises three issues arguing the district court erred when it granted Foster’s petition for

expunction because: (1) Foster was not entitled to an expunction of the misdemeanor offense of

assault causing bodily injury because he served a term of deferred adjudication as a result of that

arrest; (2) Foster was not entitled to an expunction of the felony aggravated sexual assault of a

child offense because he served a term of deferred adjudication as a result of that arrest; and (3)

Foster was not entitled to an expunction of the felony aggravated sexual assault of a child offense
because he did not prove (a) the indictment was dismissed for a statutorily authorized reason or

(b) the statute of limitations had expired.

       We conclude the district court erred when it granted Foster’s petition for expunction.

The district court’s order of expunction is reversed and an order denying Foster’s petition for

expunction is rendered.

                    I. FACTUAL AND PROCEDURAL BACKGROUND

       Foster was indicted for the felony offense of aggravated sexual assault of a child younger

than fourteen years of age in cause number 23,241. The State filed a motion to dismiss this

cause in the district court. The preprinted motion to dismiss lists possible reasons for the

dismissal. The boxes next to these statements in the motion were checked: “The defendant was

convicted in another cause” and “Other.” In the space provided after the preprinted statement

“and for cause would show the Court the following” the State inserted “Case has been refilled.

[Foster] plead[ed] to CR0602268, Hunt County Court at Law.” The district court granted the

State’s motion to dismiss.

       On the same day the State filed its motion to dismiss the felony charge, Foster was

charged by information for the misdemeanor offense of assault causing bodily injury to another

in the county court at law in cause number 0602268. Foster pleaded nolo contendre to the

offense. The county court deferred Foster’s adjudication and ordered that he be placed on

community supervision for twenty-four months.           After Foster completed his community

supervision, the county court signed an order of non-disclosure in cause number "CR0602268."

       Then, Foster filed a petition for expunction in the district court. The petition requested

expunction of all records and files relating to the felony offense of aggravated sexual assault of a

child in cause number 23,241. In his verified petition, Foster claimed that he was

       [E]ntitled to an expunction of all records and files relating to said alleged offense
       of Aggravated Sexual Assault of a Child [u]nder Article 55.01(a)(2) of the Texas
                                                –2–
       Code of Criminal Procedure, because no indictment or information was presented
       against [him] for said offense arising out of the transaction for which [he] was
       arrested. [Foster] further states that [he] has been released, that the charge has not
       resulted in a final conviction and is no longer pending, and that there was no
       court-ordered community supervision under Article 42.12 of the Texas Code of
       Criminal Procedure nor a conditional discharge under Section 481.109 of the
       Texas Health and Safety Code.

DPS filed an answer generally denying Foster’s claim and asserted an affirmative defense,

contending “Foster is not entitled to expunge his arrest and indictment for Aggravated Sexual

Assault of a Child because his arrest did not result in an indictment or information which was

dismissed for a reason that indicated there is a lack of probable cause to believe he committed

the offenses.” A hearing was held on Foster’s petition for expunction. The State appeared at the

hearing, but DPS did not. Further, at the hearing, Foster did not present any testimony or other

evidence. After the hearing, the district court signed an order that granted Foster’s petition for

expunction with respect to the offense of "Assault Causing Bodily Injury," cause number

"23,241," in the "354th Judicial District Court." The order lists the expunged offense as assault

causing bodily injury that was before the county court at law, but lists the cause number and

court associated with the offense of aggravated sexual assault of a child younger than fourteen

years of age that was before the district court. In the order, the district court found that “Foster is

entitled to expunction as provided by Article 55.01(a)(2). Texas Code of Criminal Procedure.”

The record on appeal does not contain any findings by the district court with regard to the reason

for the dismissal of the felony aggravated sexual assault of a child charge.

       Noting the conflict between the offenses identified and the cause numbers on the district

court’s order of expunction, DPS appealed the order of expunction, arguing error as to assault

causing bodily injury, aggravated sexual assault of a child younger than fourteen years of age, or

both. This Court ordered the district court to make findings of fact as to the specific cause

number and offense it expunged, and abated the appeal. The district court made findings of fact


                                                 –3–
stating that the records Foster sought to have expunged pertained to the aggravated sexual assault

of a child charge, the order of expunction incorrectly expunges the misdemeanor charge to which

Foster pleaded guilty before the county court at law, and the only records the district court had

the authority to expunge were those pertaining to the aggravated sexual assault of a child. Then,

this Court reinstated the appeal.

                     II. RESTRICTED APPEAL OF EXPUNCTION ORDER

       Initially, we must address whether DPS may complain of the expunction order in a

restricted appeal.    All law enforcement agencies that may have records a petitioner wants

expunged are entitled to be represented by counsel at an expunction hearing. TEX. CODE CRIM.

PROC. ANN. art. 55.02, § 2(c-1) (West Supp. 2012); Tex. Dep’t of Pub. Safety v. Jacobs, 250

S.W.3d 209, 210 (Tex. App.—Dallas 2008, no pet.).           To successfully attack an order by

restricted appeal, the appealing party must show it was (1) a party who did not participate either

in person or through counsel in the hearing that resulted in the judgment complained of, (2) it

filed a notice of appeal within six months after the order was signed, and (3) error is apparent on

the face of the record. TEX. R. APP. P. 26.1(c), 30; Jacobs, 250 S.W.3d at 210. An agency

protesting an expunction order may appeal the judge’s decision in the same manner as in other

civil cases. TEX. CODE CRIM. PROC. ANN. art. 55.02, § 3(a) (West Supp. 2012); Jacobs, 250

S.W.3d at 210.

       As a state agency that has records subject to expunction, DPS is a party to the suit within

the meaning of the requirements of a restricted appeal. Jacobs, 250 S.W.3d at 210. The petition

for expunction was filed on December 14, 2010. The record contains a return receipt showing

DPS was served with a copy of the petition for expunction on December 20, 2010. On February

14, 2011, DPS filed an answer and asserted its affirmative defense. However, DPS did not




                                               –4–
participate in person or through counsel in the expunction hearing. Accordingly, DPS meets the

first requirement for raising a restricted appeal. Jacobs, 250 S.W.3d at 210.

       The order of expunction was signed by the district court on December 2, 2011. DPS filed

its notice of restricted appeal on April 18, 2012, within the six-month deadline contemplated in

rule 26.1(c). Because DPS timely filed its notice of restricted appeal, it meets the second

requirement for raising a restricted appeal. Jacobs, 250 S.W.3d at 210. Accordingly, we next

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

                                 III. STANDARD OF REVIEW

       In a restricted appeal, an appellate court is limited to considering only the face of the

record, but its scope of review is otherwise the same as that in an ordinary appeal. Jacobs, 250

S.W.3d at 210. Accordingly, an appellate court reviews the entire case. Jacobs, 250 S.W.3d at

210. In a restricted appeal, the face of the record consists of all papers on file in the appeal,

including the reporter’s record. Jacobs, 250 S.W.3d at 210. An appellate court’s review of the

entire case encompasses the review of the insufficiency claims. See Jacobs, 250 S.W.3d at 210.

                         IV. ASSAULT CAUSING BODILY INJURY

       In issue one, DPS argues the district court erred when it granted Foster’s petition for

expunction as to the misdemeanor offense of assault causing bodily injury because Foster served

a term of deferred adjudication as a result of that arrest. The district court’s subsequent findings

of fact state that “The Order of Expunction incorrectly expunges the misdemeanor charge to

which [Foster] pled guilty (Assault Causing Bodily Injury).” Accordingly, we conclude the

district court erred when it expunged all records and files relating to Foster’s arrest for

misdemeanor assault causing bodily injury in cause no. 0602268.

       Issue one is decided in favor of DPS.




                                                –5–
                    V. AGGRAVATED SEXUAL ASSAULT OF CHILD

       In issue three, DPS argues the district court erred when it granted Foster’s petition for

expunction as to the felony offense of aggravated sexual assault of a child younger than fourteen

years of age because Foster did not prove (a) the indictment was dismissed for a statutorily

authorized reason or (b) the statute of limitations had expired.

                                        A. Applicable Law

       Expunction is a statutory privilege and the petitioner must prove that all statutory

requirements have been satisfied. Texas Dept. of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806

(Tex. App.—Houston [14th Dist.] 2008, no pet.). Pursuant to article 55.01(a)(2), a person who

has been placed under 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 was no court-ordered
       community supervision under Article 42.12 for the offense, unless the offense is a
       Class C misdemeanor, provided that:

               (A)    regardless of whether any statute of limitations exists for the
               offense and whether any limitations period for the offense has expired, an
               indictment or information charging the person with the commission of a
               misdemeanor offense based on the person’s arrest or charging the person
               with the commission of any felony offense out of the same transaction for
               which the person was arrested:

                       (ii)    if presented at any time following the arrest, was dismissed
                       or quashed, and the court finds that the indictment or information
                       was dismissed or quashed because the person completed a pretrial
                       intervention program authorized under Section 76.011,
                       Government Code, or because the presentment had been made
                       because of mistake, false information, or other similar reason
                       indicating absence of probable cause at the time of the dismissal to
                       believe the person committed the offense, or because the
                       indictment or information was void; or

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A)(ii) (West Supp. 2012).




                                                –6–
                             B. Application of the Law to the Facts

       To be entitled to expunction under the facts of this case, Foster had to establish

that (1) he had been released and the charge, if any, had not resulted in a final conviction

and was no longer pending, (2) there was no court-ordered community supervision under

article 42.12 for the offense, (3) an indictment or information charging him with the

commission of any felony offense arising out the same transaction for which he was

arrested, if presented, was dismissed or quashed, and (4) the court found that the

indictment or information was dismissed or quashed because of mistake, false

information, or some other reason indicating absence of probable cause at the time of the

dismissal to believe he committed the offense. See TEX. CODE CRIM. PROC. ANN. art.

55.01(a)(2)(A)(ii).

       Initially, we note that in his verified petition for expunction, Foster alleged that

“no indictment or information was presented against [him]” for the felony offense of

aggravated sexual assault of a child. However, the record contains an indictment against

Foster for the felony offense of aggravated sexual assault of a child younger than fourteen

years of age, as well as the State’s motion to dismiss and an order granting that motion.

       Next, a review of the record shows that in its motion to dismiss, the State checked

boxes on a preprinted form that identified it was seeking dismissal of the aggravated

sexual assault of a child younger than fourteen years of age charge because “The

defendant was convicted in another cause” and “Other”. Further, the State indicated in

the motion the “Case has been refiled. [Foster] plead[ed] to CR0602268, Hunt County

Court at Law.” The district court granted the State’s motion to dismiss. There is nothing

in the record on appeal showing the district court made any findings with regard to the




                                               –7–
reason for the dismissal of the felony aggravated sexual assault of a child offense when it

granted the State’s motion to dismiss.

       At the hearing on his petition for expunction, Foster did not present any testimony

or other evidence demonstrating he proved all of the statutory requirements for

expunction. See Jacobs, 250 S.W.3d at 211 (“To be entitled to expunction, the person

seeking relief must establish that each of the following conditions exists . . .”); J.H.J., 274

S.W.3d at 860 (expunction statutory privilege and petitioner must prove all statutory

requirements have been satisfied). Further, there is nothing in the record on appeal

showing the district court made any findings with regard to the reason for the dismissal of

the felony aggravated sexual assault of a child offense when it granted the Foster’s

petition for expunction.

       Accordingly, we conclude the district court erred when it expunged all records

and files relating to Foster’s arrest for felony aggravated sexual assault of a child younger

than fourteen years of age in cause no. 23,241. The first part of issue three is decided in

favor of DPS. Based on our resolution of the first part of issue three, we need not address

the second part of issue three or issue two.


                                         VI. CONCLUSION

       The district court erred when it granted Foster’s petition for expunction.

       We reverse the district court’s order of expunction and render an order denying Foster’s

petition for expunction.



                                                       /Douglas S. Lang/
120525F.P05                                            DOUGLAS S. LANG
                                                       JUSTICE



                                                 –8–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                         JUDGMENT

TEXAS DEPARTMENT OF PUBLIC                          On Appeal from the 354th Judicial District
SAFETY, Appellant                                   Court, Hunt County, Texas
                                                    Trial Court Cause No. 76,266.
No. 05-12-00525-CV          V.                      Opinion delivered by Justice Lang. Justices
                                                    Moseley and Francis participating.
JORDAN FOSTER, Appellee

      In accordance with this Court’s opinion of this date, the trial court’s order of expunction
is REVERSED and an order denying appellee JORDAN FOSTER’S petition for expunction is
RENDERED.

        It is ORDERED that appellant TEXAS DEPARTMENT OF PUBLIC SAFETY recover
its costs of this appeal from appellee JORDAN FOSTER.


Judgment entered this 28th day of March, 2013.




                                                   /Douglas S. Lang/
                                                   DOUGLAS S. LANG
                                                   JUSTICE
