                             NUMBER 13-13-00656-CV

                               COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF
PUBLIC SAFETY,                                                                Appellant,

                                                v.

RAQUEL IBARRA,                                                                 Appellee.


                     On appeal from the 24th District Court
                          Of Victoria County, Texas.


                                        OPINION

     Before Chief Justice Valdez and Justices Perkes and Longoria
                    Opinion by Chief Justice Valdez
       By two issues, which we construe as three, the Texas Department of Public Safety

(TDPS) files a restricted appeal challenging the trial court’s order granting the expunction

of the records relating to Raquel Ibarra’s arrest and prosecution for the offense of money

laundering. See TEX. PENAL CODE ANN. § 34.02(e)(3) (West, Westlaw through 2013 3d

C.S.). The TDPS argues that: (1) expunction was improper because the trial court had
already ordered a term of community supervision for the offense; (2) expunction based

on the district attorney’s recommendation was improper because appellant had been tried

for the offense prior to the expunction; and (3) at minimum, this case should be remanded

because at the expunction hearing, no reporter’s record was prepared. We affirm.

                                        I.      BACKGROUND

        On January 18, 2011, Ibarra was arrested and charged with money laundering.

See id. Ibarra pleaded nolo contendere, and the 377th Judicial District Court for Victoria

County entered an order of deferred adjudication on February 21, 2012, instructing Ibarra

to complete two years of community supervision and pay a $1,000 fine. The order

indicated that as part of the terms of the plea bargain, the State “recommends expunction

if law allows under 55.01(b)(2).”1 See TEX. CODE CRIM. PROC. ANN. art. 55.01(b)(2) (West,

Westlaw through 2013 3d C.S.).

        On May 3, 2013, Ibarra filed a petition in the 24th Judicial District Court for Victoria

County to expunge all records of her arrest and prosecution. In the petition, Ibarra

admitted that she had completed a term of community supervision, but argued that she

was eligible for expunction under Article 55.01(b)(2) of the Texas Code of Criminal

Procedure because the order of deferred adjudication indicated that as part of the terms

of the plea bargain, the prosecutor recommended expunction. See id. The TDPS filed

an answer alleging that Ibarra was not entitled to an expunction because under article

55.01(a)(2) of the Code of Criminal Procedure, records cannot be expunged after the trial

court has ordered a term of community supervision. See id. art. 55.01(a)(2). Ibarra filed



        1 The February 21st order stated the State “recommends expunction if law allows under
55.01(e)(2).” In response to a motion filed by Ibarra, the trial court issued a nunc pro tunc order which
amended the language to read that the State “recommends expunction if law allows under 55.01(b)(2).”

                                                       2
an answer contending that she was entitled to expunction under subsection (b)(2) even

though she had received community supervision because, as was evidenced by the order

of deferred adjudication, the prosecutor had previously recommended expunction. See

id. art. 55.01(b)(2). The district attorney for Victoria County also filed an answer in which

it agreed with Ibarra. The district attorney’s answer explained that “the prohibition against

allowing someone who has served community supervision to receive an expunction only

applies to applicants seeking mandatory expunctions under Article 55.01(a). . . .” See id.

art. 55.01(a)(2). It further asserted that:

       All Article 55.01(b)(2), the relevant provision in this case, requires for a
       person seeking a discretionary expunction to be eligible is that an office of
       the attorney representing the State authorized by law to prosecute the
       offense for which the person was charged recommended the expunction to
       the appropriate district court before the person was tried for the offense.
       Those conditions have been met . . . . [The] Assistant Criminal District
       Attorney . . . made the recommendation to the appropriate district court (in
       this case the 377th District Court) and the recommendation was clearly
       made before [Ibarra’s] case came to trial since it was part of the plea bargain
       agreement in this case. Accordingly, all requirements of Article 55.01(b)(2)
       are satisfied which in turn means that [Ibarra] is eligible to be considered for
       an expunction despite the fact that she received community supervision in
       this case.

See id. art. 55.01(b)(2).

       The docket sheet for the expunction proceedings indicates that on June 17, 2013,

the trial court held a hearing on the petition. The TDPS received notice of the hearing,

but by its own admission did not attend. The docket sheet states, “No record, [the attorney

for Ibarra and the district attorney] appeared, the State has no objection to expunction.

Expunction granted.” On that same day, the trial court issued an order granting the

expunction, under Article 55.01(b)(2), of all records relating to the money laundering

offense. See id. This restricted appeal followed.



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                              II.    RESTRICTED APPEAL

       To attack an order by restricted appeal, the appellant must show: (1) it was a party

who did not participate 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; (3) it did not timely

file a post-judgment motion or request findings of fact and conclusions of law; and (4)

error is apparent on the face of the record. TEX. R. APP. P. 26.1(c), 30; Bazan v. Canales,

200 S.W.3d 844, 846–47 (Tex. App.—Corpus Christi 2006, no pet.).

       The first three requirements for a restricted appeal are satisfied. And we will review

the merits of the TDPS’s argument because its contention that Ibarra was not entitled to

expunction after the trial court had previously held a trial and ordered community

supervision, which Ibarra admitted in her expunction petition, is an assertion that error is

apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; Bazan, 200 S.W.3d

at 846–47.

                     III.   STANDARD OF REVIEW & APPLICABLE LAW

       We review a trial court’s decision granting a petition for expunction for an abuse of

discretion. See Ex parte Cephus, 410 S.W.3d 416, 418 (Tex. App.—Houston [14th Dist.]

2013, no pet.); Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin

2002, pet. denied). However, to the extent a ruling on an expunction petition turns on a

question of law, we review the ruling de novo because a trial court has no discretion in

determining what the law is or applying the law to the facts. Tex. Dep’t of Pub. Safety v.

Dicken, 415 S.W.3d 476, 478 (Tex. App.—San Antonio 2013, no pet.).

       The remedy of expunction allows a person who has been arrested for the

commission of an offense to have all information about the arrest removed from



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governmental entities’ and officials’ records if he meets the requirements of article 55.01

of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 55.01; Tex. Dep't

of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex. App.—Austin 2010, no pet.). A

petitioner’s right to expunction is purely a matter of statutory privilege, and the petitioner

bears the burden of demonstrating that all of the required statutory conditions have been

met. Nail, 305 S.W.3d at 675; see TEX. CODE CRIM. PROC. ANN. art. 55.01; In re I.V., 415

S.W.3d 926, 929 (Tex. App.—El Paso 2013, no pet.) (stating that in a “statutory cause of

action, all provisions are mandatory and exclusive”); Tex. Dep’t of Pub. Safety v. J.H.J.,

274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“The trial court . .

. has no equitable power to extend the protections of the expunction statute beyond its

stated provisions.”).

                        IV.   EXPUNCTION UNDER ARTICLE 55.01(a)(2)

       By its first issue, the TDPS argues that under article 55.001(a)(2), records cannot

be expunged in cases where there has been court-ordered community supervision. See

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); see also Ex parte Rivera, No.13-12-00683-

CV, 2013 WL 3325983, at *4 (Tex. App.—Corpus Christi June 27, 2013, no pet.) (mem

op.) (holding that a trial court erred by granting expunction under article 55.01(a)(2) after

a defendant received deferred adjudication community supervision). The provision cited

by the TDPS, however, only applies to expunctions under article 55.01(a). TEX. CODE

CRIM. PROC. ANN. art. 55.01(a)(2). In the present case, the record reveals that Ibarra

sought and the trial court granted an expunction under article 55.01(b)(2), which is an

entirely separate basis for expunction from article 55.01(a).           See id. art. 55.01.

Accordingly, the limitation in article 55.01(a)(2) that there can be no court-ordered



                                                 5
community supervision does not apply to Ibarra’s petition. See id. We overrule the

TDPS’s first issue.

                        V.     EXPUNCTION UNDER ARTICLE 55.01(b)(2)

       As noted above, in the present case, the trial court granted the expunction of

Ibarra’s     records   under    article   55.01(b)(2)   based   on   the   district   attorney’s

recommendation, which undisputedly occurred prior to trial. See id. art. 55.01(b)(2).

Article 55.01(b) provides, in relevant part:

       (b)      Except as provided by Subsection (c), a district court may expunge
                all records and files relating to the arrest of a person who has been
                arrested for commission of a felony or misdemeanor under the
                procedure established under Article 55.02 if:

                (1) the person is:

                       (A)     tried for the offense for which the person was arrested;
                       (B)     convicted of the offense; and
                       (C)     acquitted by the court of criminal appeals or, if the
                               period for granting a petition for discretionary review
                               has expired, by a court of appeals; or

                (2)    an office of the attorney representing the state authorized by
                       law to prosecute the offense for which the person was
                       arrested recommends the expunction to the appropriate
                       district court before the person is tried for the offense,
                       regardless of whether an indictment or information has been
                       presented against the person in relation to the offense.

       (c)      A court may not order the expunction of records and files relating to
                an arrest for an offense for which a person is subsequently acquitted,
                whether by the trial court, a court of appeals, or the court of criminal
                appeals, if the offense for which the person was acquitted arose out
                of a criminal episode, as defined by Section 3.01, Penal Code, and
                the person was convicted of or remains subject to prosecution for at
                least one other offense occurring during the criminal episode.

Id. art. 55.01(b) (emphasis added).




                                                    6
        In its brief, the TDPS argues that article 55.01(b)(2) requires that the case “be

untried by the time of the expunction proceeding. And a prosecutor’s recommendation to

expunge records is valid only if the offense has not been tried by that time, regardless of

when the prosecutor made the recommendation. The relevant timing is that of the trial,

not of the recommendation.” In other words, the TDPS contends that records cannot be

expunged under article 55.01(b)(2) after there has been a trial for the alleged offense.2

We disagree with the TDPS’s interpretation of the statute because it is inconsistent with

its plain language, which states that the recommendation, not the actual expunction, must

occur before trial. See id. art. 55.01(b)(2); City of Rockwall v. Hughes, 246 S.W.3d 621,

625–26 (Tex. 2008) (explaining that appellate courts rely on the plain meaning of the text,

unless a different meaning is supplied by legislative definition or is apparent from context,

or unless such a construction leads to absurd results).

        The TDPS offers three arguments in favor of its interpretation of the statute. First,

the TDPS argues that the legislature intentionally made a distinction between tried

offenses under subsection (b)(1) and untried offenses under subsection (b)(2), and that

“[t]his distinction is there because the [l]egislature did not intend to give a prosecuting

agency power to recommend expunctions if the agency made the decision to try the

offense.” We agree that that subsections (1) and (2) of 55.01(b) apply to different

scenarios. Subsection (b)(1) applies to cases where a defendant has been convicted in

the trial court, but is then subsequently acquitted on appeal. TEX. CODE CRIM. PROC. ANN.

art. 55.01(b)(1). Subsection (b)(2) applies to cases where the prosecutor recommends



        2  The TDPS argues that the plea of nolo contendere and order of deferred adjudication constitutes
a trial. We make no determination on whether this constitutes a trial under the expunction statute because
it is not necessary to the resolution of this appeal. See TEX. R. APP. P. 47.1.

                                                        7
expunction to the appropriate court prior to trial. Id. art. 55.01(b)(2). We fail to see how

the distinction between these two circumstances indicates that subsection (b)(2) only

applies to untried cases or how it forces the prosecutor to make a choice between

accepting a plea of nolo contendere or recommending expunction. We also fail to see

how applying subsection (b)(2) to cases where the defendant is subsequently sentenced

to community supervision or deferred adjudication destroys the clearly intended

distinction between the two subsections.

       Second, the TDPS argues that the requirement that the recommendation be made

to the “appropriate district court” shows that the legislature intended that subsection (b)(2)

only be applied to untried cases.3 See id. The TDPS argues that the appropriate district

court refers to the court of expunction throughout the statute and that,

       [I]f a prosecutor could recommend that tried cases be expunged as long as
       the recommendation preceed the trial, cases tried outside the district court,
       such as misdemeanors tried in county court, would never fit within the
       parameters of Article 55.01(b)(2) because the trial court would never be an
       ‘appropriate district court.’” This would allow prosecutors to recommend
       expunctions for more serious offenses, because those are tried in district
       courts, but disallow recommendations for minor offenses, which are tried in
       other courts. This is an absurd result that the Legislature could not have
       intended.

In the present case, the prosecutor did in fact make a recommendation to a district court

that had jurisdiction to expunge records in Ibarra’s case. See id. art. 55.02 § 2(a) (West,

Westlaw through 3d C.S.) (stipulating that a person who is entitled to expunction under

Article 55.01(b) may file an ex parte petition for expunction in a district court for the county

in which the petitioner was arrested or the offense was alleged to have occurred). We


        3 Notably, the TDPS does not argue that the recommendation in the present case was not made to

the appropriate district court; rather, it contends that the existence of the requirement that the
recommendation be made to the appropriate district court shows that the legislature intended that
subsection (b)(2) applies only to untried cases. We therefore confine our discussion to that argument.

                                                      8
therefore need not address the appropriate procedure for recommending expunction in

cases tried in courts lacking jurisdiction to expunge records. Nothing in the statute

indicates that the “appropriate district court” refers to the court where the petition for

expunction is eventually filed. See id. art. 55.01. In any event, we do not find that the

requirement that the recommendation be made to the appropriate district court implies a

requirement that subsection (b)(2) only applies to offenses that are untried. See City of

Rockwall, 246 S.W.3d at 625–26.

      Finally, the TDPS contends that allowing expunction in this case would be contrary

to the purpose of the expunction statute because “Ibarra pleaded no contest to the offense

of money laundering, thereby admitting that she was not wrongfully arrested.” The TDPS

argues that the “primary purpose of the expunction statute is to allow wrongfully arrested

individuals to correct their records. It is not to allow a person who is arrested, concedes

guilt, and receives community supervision or a conviction to expunge records of the

arrest.” See Tex. Dep’t of Pub. Safety v. Williams, 76 S.W.3d 647, 650 (Tex. App.—

Corpus Christi 2002, no pet.) (stating in an appeal from an expunction under article

55.01(a), “[t]he expunction statute was created to allow persons wrongfully charged to

expunge their arrest records”) (citations omitted); see also Ex parte Rivera, 2013 WL

3325983, at *4.

       However, the legislature has not stated in any part of the statute that records

should never be expunged when a defendant enters a plea of nolo contendere, or even

a plea of guilty. Moreover, the community supervision limitation applies only to subsection

(a)(2) of the statute, and even that subsection provides an exception for class C

misdemeanors.     See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2).         The legislature



                                                9
therefore clearly intended that, in some circumstances, expunction be available for

defendants that plead nolo contendere, even when subsection (a) of the statute applies.

See id. By its plain language, subsection (b)(2) provides for the availability of expunction

when the prosecuting attorney recommends expunction to the appropriate district court

before trial. It does not limit expunctions solely to “untried cases.” Therefore, the trial

court may expunge records under subsection (b)(2) regardless of whether a plea of nolo

contendere is eventually entered or community supervision is imposed. See id. art.

55.01(b)(2); City of Rockwall, 246 S.W.3d at 625–26. This is not inconsistent with other

provisions in the statute, which allow expunction even after a plea has been entered. See

TEX. CODE CRIM. PROC. ANN. art. 55.01.

       Because the statute authorizes expunction under the specific circumstances of this

case, the TDPS’s second issue is overruled.

                           VI.    LACK OF REPORTER’S RECORD

       The TDPS argues that “the trial court’s order must be reversed and the case

remanded for a new trial because there is no reporter’s record.” In the present case, the

TDPS properly requested the reporter’s record and then subsequently filed an affidavit of

the court reporter stating that she was “not requested to stenographically record anything

in this case. The case was not formally called for the record (nor was there any oral

testimony or exhibits introduced) for me to stenographically record.”

       The Texas Supreme Court has held that, “[i]f an appellant exercises due diligence

and through no fault of his own is unable to obtain a proper record of the evidence

introduced, this may require a new trial where his right to have the case reviewed on

appeal can be preserved in no other way.” Robinson v. Robinson, 487 S.W.2d 713, 715



                                                10
(Tex. 1972); see also Ex Parte Ruiz, No. 04-11-00808-CV, 2012 WL 2834898, at *2 (Tex.

App.—San Antonio July 11, 2012, no pet.) (mem. op.) (reversing an order granting an

expunction on the basis that error appeared on the face of the record because there was

no reporter’s record made). However, recently, the Fourteenth Court of Appeals held that

a remand was not necessary in circumstances almost identical to the present case. Ex

Parte Pinnock, ___ S.W.3d. ___, No. 14-12-00787-CV, 2014 WL 2873883, at *4 (Tex.

App.—Houston [14th Dist.] June 24, 2014, no. pet. h.). In Pinnock, the TDPS asserted

that a trial court’s order granting an expunction needed to be remanded because no

reporter’s record was prepared.            Id. at *2. The appellate court reasoned that “the trial

court did not receive any evidence that was the basis of its ruling at that hearing. Under

the unambiguous language of the trial court’s [e]xpunction [o]rder, the trial court did not

base its ruling on evidence that it received from the parties.” Id. The court therefore held

that because no evidence was presented at the hearing on the expunction petition, “the

lack of a reporter’s record . . . does not constitute error on the face of the record and does

not entitle the [TDPS] to a reversal of the trial court’s order and a remand for a new

expunction hearing.” Id.

        In the present case, the docket sheet does not indicate that any evidence was

presented at the hearing, and the court reporter affirmatively stated in her affidavit that

the case was not formally called and no evidence was heard at the hearing.4 Moreover,


        4  While the affidavit of the court reporter was filed by the TDPS and not included as part of the trial
court record, we find that the affidavit was part of the TDPS’s argument on appeal; therefore, the TDPS has
conceded on appeal that the court reporter stated that there was no testimony or exhibits produced at the
hearing. Notably, in its reply brief on appeal, the TDPS emphatically argues that we should consider the
affidavit as part of the record. Moreover, even if the affidavit or the TDPS’s concession is not appropriate
for our consideration, we determine that the docket sheet and final judgment are sufficient for us to conclude
that the trial court’s judgment was not based on evidence presented at the hearing. See Ex Parte Pinnock,
___ S.W.3d. ___, No. 14-12-00787-CV, 2014 WL 2873883, at *4 (Tex. App.—Houston [14th Dist.] June 24,
2014, no. pet. h.).

                                                          11
the order granting the expunction makes no reference to the hearing and instead merely

states that “the Court considered the Petition for Expunction of Raquel Ibarra, which the

court finds should be granted.” We agree with the decision in Pinnock, and, in the present

case, we hold that, because the record reflects that no evidence was presented at the

hearing and that the trial court’s decision was not based on evidence provided at the

hearing, a remand is not required.5 See id.

        We overrule the TDPS’s third point of error.

                                      VII.    CONCLUSION

        We affirm the trial court’s order.

                                                                  /s/ Rogelio Valdez
                                                                  ROGELIO VALDEZ
                                                                  Chief Justice

Delivered and filed the
2nd day of September, 2014.




        5 Furthermore, we note that there is no factual dispute regarding whether Ibarra had already
completed community supervision for the money laundering offense, and on appeal, the TDPS presents a
legal issue solely based on an interpretation of the expunction statute. As such, a reporter’s record of the
hearing is not necessary for our review of this case. See Robinson v. Robinson, 487 S.W.2d 713, 715
(Tex. 1972) (“If an appellant exercises due diligence and through no fault of his own is unable to obtain a
proper record of the evidence introduced, this may require a new trial where his right to have the case
reviewed on appeal can be preserved in no other way.”).

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