                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                            ____________________
                               NO. 09-16-00106-CV
                            ____________________

          TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

                                         V.

                                  J.S.H., Appellee

________________________________________________________________________

                    On Appeal from the 253rd District Court
                            Liberty County, Texas
                         Trial Cause No. CV-1509671
________________________________________________________________________

                          MEMORANDUM OPINION

      The Texas Department of Public Safety (DPS) brings this restricted appeal

from an order expunging J.S.H.’s criminal records related to two charges of driving

while intoxicated with a child under fifteen years old.

                                    Background

      On December 23, 2007, J.S.H was arrested in cause number CR27217 on

two counts of driving while intoxicated with a child under fifteen years of age. On


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July 15, 2015, J.S.H. filed a petition to expunge the records relating to his arrest

because the charges had been dismissed, and he requested that the following

entities that he believed had records subject to expunction be served with notice of

the petition: (1) Liberty Police Department; (2) Liberty County District Attorney’s

Office; (3) Texas Department of Public Safety, Crime Records Department; (4)

Liberty County District Clerk’s Office; (5) Liberty County Sheriff’s Office; (6)

Liberty County Clerk’s Office; (7) Liberty County Adult Probation; (8) Texas

Department of Public Safety, Expunctions; and the (9) Federal Bureau of

Investigations. In a letter filed and dated September 28, 2015, and addressed to the

Liberty County 253rd Court Coordinator, J.S.H.’s counsel stated the following:

              This letter is to confirm that a submission hearing has been
       scheduled for Friday, October 9, 2015 at 9:00 a.m. in the 253rd District
       Court for submission of the proposed Order for Expunction in the
       above referenced matter.

              By copy of this letter, I am notifying all interested parties of
       this setting.

             This letter also serves as Lead Document for efiling the
       Proposed Order for Expunction to be presented to the Court for
       consideration on October 9, 2015.

The letter noted that a copy (“cc”) of the letter was provided to the “First Assistant

District Attorney” and J.S.H. No other interested parties are listed in the “cc”

section of the letter.

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       The trial court held a hearing on the expunction petition on October 9, 2015.

J.S.H. appeared personally with his attorney at the hearing and his attorney stated

that J.S.H.’s expunction petition was “uncontested[,]” that all parties were given

notice, and that no parties filed a response to the petition. That same day, the trial

court signed an Order for Expunction and ordered the entities named in the

expunction petition, as well as the Dayton Police Department, to return all records

and files concerning J.S.H.’s arrest in CR27217 to the trial court, or if not practical,

to destroy such records or files. In accordance with the expunction order, the

district clerk delivered, by certified mail, return receipt requested, a copy of the

expunction order to the entities listed in the order. The appellate record reflects that

DPS received a certified copy of the expunction order on October 21, 2015. On

April 7, 2016, the DPS filed its notice of restricted appeal.

                                   Issue on Appeal

       In one appellate issue, DPS argues the trial court erred in ordering an

expunction because DPS did not receive notice of the expunction hearing, DPS did

not waive the notice requirement, and DPS was entitled to notice. J.S.H. did not

file an appellate brief.




                                           3
                     Applicable Law and Standard of Review

      We review a trial court’s ruling on a petition for expunction under an abuse

of discretion standard. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806

(Tex. App.—Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep’t of Pub.

Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). Expunction is

neither a constitutional nor a common-law right, but rather a statutory privilege. In

re D.W.H., 458 S.W.3d 99, 104 (Tex. App.—El Paso 2014, no pet.). A statutory

expunction proceeding is a civil rather than a criminal proceeding, and the

petitioner has the burden of proving that he has strictly complied with the

requirements of the expunction statute. Houston Police Dep’t v. Berkowitz, 95

S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Collin Cty.

Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.—

Dallas 2005, no pet.).

                                 Restricted Appeal

      We must first address whether DPS may complain of the expunction order in

a restricted appeal. To successfully attack an order by restricted appeal, the

appealing party must show: (1) he filed a notice of restricted appeal within six

months after the judgment or complained-of order was signed; (2) he was a party

to the underlying lawsuit; (3) he did not participate either in person or through

                                         4
counsel in the hearing that resulted in the judgment or complained-of order, and

did not timely file any post-judgment motions or requests for findings of fact and

conclusions of law; and (4) error is apparent on the face of the record. Pike-Grant

v. Grant, 447 S.W.3d 884, 886 (Tex. 2014); Tex. R. App. P. 30; see also Tex. R.

App. P. 26.1(c).

      The trial court signed the expunction order on October 9, 2015. DPS filed its

notice of restricted appeal on April 7, 2016, within the six-month deadline set by

Rule 26.1(c). See Tex. R. App. P. 26.1(c) (“in a restricted appeal, the notice of

appeal must be filed within six months after the judgment or order is signed[]”).

DPS was a party entitled to appeal the expunction order. See Tex. Code Crim.

Proc. Ann art. 55.02, § 3(a) (West Supp. 2016) (An agency protesting an

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

civil cases.). DPS was named in the expunction order as an agency or entity that

might have records or files subject to expunction. All agencies that have records a

petitioner wants expunged are entitled to notice so they may appear and present

any objections at the hearing. See id. art. 55.02, § 2(c) (West Supp. 2016) (trial

court shall give reasonable notice of the hearing to each official, agency, or other

governmental entity named in the petition). Accordingly, DPS is considered a party

entitled to a restricted appeal from the expunction order.

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      The record demonstrates that DPS did not participate in any hearing that

resulted in the expunction order and it did not file any post-judgment motions or

request findings of fact and conclusions of law. The only notice addressed to DPS

that appears in the appellate record is the notice of the expunction order given by

the clerk of court after entry of the order.

      We next address whether error is apparent on the face of the record. DPS

argues that error is apparent on the face of the record because the trial court failed

to notify DPS of the expunction hearing. The expunction procedures provided in

article 55.02 are mandatory. Tex. Dep’t of Pub. Safety v. Deck, 954 S.W.2d 108,

112 (Tex. App.—San Antonio 1997, no writ). “If the record does not indicate that

the agency was notified in accordance with the statute, then the record reflects a

proceeding in violation of the statute and the expunction order must be set aside.”

Id. (citing Rodriguez v. T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.—San Antonio

1991, no writ) (reversing trial court and setting aside expunction order after finding

that hearing took place without notice to any respondent); Tex. Dep’t of Pub. Safety

v. Riley, 773 S.W.2d 756, 758 (Tex. App.—San Antonio 1989, no writ) (setting

aside expunction order because record did not reflect agencies had been notified of

hearing and because judge violated thirty-day waiting period)).




                                               6
      We find nothing in the record to reflect that DPS was notified of the hearing

held on October 9, 2015, and nothing in the record reflects that DPS waived the

notice requirement. Although there is a letter from J.S.H.’s counsel addressed to

the Liberty County District Attorney’s Office, nothing in the record before us

indicates that the Court gave notice to the DPS as required under art. 55.02, Sec.

2(c). Error is apparent from the face of the record because the record does not

reflect that DPS was notified of the October 9, 2015 hearing.1 This violation of

mandatory procedures necessitates the setting aside of J.S.H.’s expunction order.

DPS’s issue is sustained. Because we have determined that the trial court erred in

granting the petition for expunction, we reverse and set aside the expunction order

and remand to the trial court for further proceedings consistent with this opinion.2

      REVERSED AND REMANDED.



                                                    _________________________
                                                       LEANNE JOHNSON
                                                             Justice
      1
          DPS contends that it never received notice of the hearing. Appellee did not
file any response or appellate brief. When an appellee does not file a brief, as here,
the appellate court may accept any factual statement made in the appellant’s brief
as true. See Tex. R. App. P. 38.1(g).
      2
        When an expunction order is reversed and set aside, it is reversed and set
aside as to all agencies in possession of relevant criminal records. Ex parte Elliot,
815 S.W.2d 251, 252 (Tex. 1991).
                                          7
Submitted on October 3, 2016
Opinion Delivered August 3, 2017

Before McKeithen, C.J., Horton and Johnson, JJ.




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