                                MEMORANDUM OPINION
                                       No. 04-09-00398-CV

                                   EX PARTE Andy LINARES,
                                          Appellant

                    From the 111th Judicial District Court, Webb County, Texas
                              Trial Court No. 2008-CVK-001376-D2
                            Honorable Raul Vasquez, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: March 24, 2010

REVERSED IN PART AND AFFIRMED IN PART

           The Texas Department of Public Safety (DPS) appeals from the trial court’s order

expunging Appellee Andy Linares’ charge for driving while intoxicated (DWI). DPS complains

that Linares was not entitled to an expunction of records related to his arrest for driving while

intoxicated because he failed to establish, by legally sufficient evidence, that his arrest did not

result in a final conviction, and that he had not received court-ordered community supervision.

Because the trial court erred in granting Linares an expunction for his DWI charge, we reverse

the judgment of the trial court and render judgment denying Linares’ request for expunction with

regard to the DWI. We affirm the judgment in all other respects.
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                                     FACTUAL BACKGROUND

       Linares was arrested on December 22, 1994, and charged with the offense of driving

while intoxicated. On July 17, 1995, Linares entered a plea of guilty to the offense and was

placed on probation for a period of one year. Thirteen years later, Linares filed his petition for

expunction regarding two instances of arrest: (1) aggravated assault, which did not result in a

final conviction, and (2) driving while intoxicated. Neither party contests the expunction of the

1995 assault causing bodily injury. However, DPS argues that the DWI charge was barred from

expunction because it resulted in a final conviction of the offense. On January 7, 2009, the trial

court granted Linares’ petition and signed an order expunging both arrests on his record. This

restricted appeal followed.

                                     STANDARD OF REVIEW

       An appellate court reviews a trial court’s ruling on a petition for expunction under an

abuse of discretion standard. Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex. App.—San Antonio

2001, no pet.). To successfully attack an order for expunction of records relating to an arrest by

restricted appeal, DPS must show that: (1) it was a party to the expunction suit; (2) it was served

with a copy of the petition for expunction and filed a written response, but it did not participate

either in person or through counsel in the hearing that resulted in the judgment; (3) it filed its

notice of appeal within the six-month deadline; and (4) that the face of record establishes that the

arrestee was not entitled to expunction. See Alexander v. Lynda’s Boutique, 134 S.W.3d 845,

848 (Tex. 2004); Tex. Dep’t of Pub. Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.—Dallas

2008, no pet.). Because it is clear from the record that DPS meets the first three of these

requirements, we consider only whether the face of the record establishes Linares was not

entitled to an expunction of the charge in question.




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                           DRIVING WHILE INTOXICATED OFFENSE

       DPS contends the trial court erred in granting Linares an expunction of his DWI charge

because Linares served twelve months probation as a result of his arrest for DWI. See TEX.

CODE CRIM. PROC. ANN. art. 55.01 (Vernon 2006). The expunction statute was enacted by the

legislature to allow the expunction of wrongful arrest records. Harris County Dist. Attorney’s

Office v. D.W.B., 860 S.W.2d 719, 721 (Tex. App.—Houston 1993, no pet.); Harris County Dist.

Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). It was not “intended to allow a

person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty

plea to expunge arrest and court records concerning that offense.” D.W.B., 860 S.W.2d at 721;

see also State v. Arellano, 801 S.W.2d 128, 131-32 (Tex. App—San Antonio 1990, no pet.).

       A review of the record before us establishes that Linares was charged with and entered a

plea of guilty to DWI. The trial court subsequently found Linares guilty and placed Linares on

probation for a period of one year. Because Linares’ DWI charge resulted in a final conviction,

he does not meet all of the statutory requirements for an expunction of this charge under article

55.01. See TEX. CODE CRIM. PROC. ANN. art. 55.01. Furthermore, counsel for Linares conceded

at the initial expunction hearing that “the other incident,” referring to the DWI charge, was not

eligible for expunction.

       Accordingly, because Linares failed to prove that he satisfied the conditions imposed by

article 55.01, we reverse the judgment of the trial court with regard to the DWI offense, and

render judgment denying Linares petition for expunction on the DWI offense. See Tex. Dep’t of

Pub. Safety v. Olivares, No. 13-06-035-CV, 2007 WL 2128889, *4 (Tex. App.—Corpus Christi

July 26, 2007, no pet.) (explaining that appellee’s final conviction and twelve months on




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probation for DWI prevented expunction on the charge). We affirm the judgment in all other

respects.

                                            Rebecca Simmons, Justice




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