                                    NO. 12-16-00332-CV

                            IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                       TYLER, TEXAS

                                                  §     APPEAL FROM THE 115TH
EX PARTE:
                                                  §     JUDICIAL DISTRICT COURT
JENNIFER BROWN
                                                  §     UPSHUR COUNTY, TEXAS

                                    MEMORANDUM OPINION
          The Texas Department of Public Safety appeals the trial court’s order granting an
expunction of Jennifer Brown’s arrest for aggravated assault with a deadly weapon, aggravated
assault family violence, and theft by check. DPS presents four issues on appeal. We reverse and
render.


                                           BACKGROUND
          Brown was arrested on April 29, 2008, and subsequently charged with aggravated assault
with a deadly weapon, aggravated assault family violence, and theft by check.           The State
dismissed the charges for aggravated assault family violence and theft by check. Brown pleaded
guilty to aggravated assault with a deadly weapon. The trial court sentenced her to five years
deferred adjudication community supervision.
          In June 2016, Brown filed a motion to expunge all records and files relating to the April
29, 2008 arrest. She alleged, among other things, that there was no court-ordered community
supervision for any of the charges. DPS filed an answer and general denial asserting Brown did
not qualify for expunction of her records because the aggravated assault with a deadly weapon
charge resulted in court-ordered community supervision. The trial court granted Brown’s petition
without a hearing. This restricted appeal followed.
                                           EXPUNCTION
       In its first issue, DPS contends Brown was not entitled to have her arrest record expunged
because she served community supervision as a result of the arrest.
Standard of Review
       A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal
within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it
did not participate in the hearing that resulted in the judgment complained of and did not timely
file any postjudgment motions or requests for findings of fact and conclusions of law, and (4)
error is apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; Ins. Co. of State of
Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face
of the record consists of all papers on file in the appeal, including the reporter’s record. Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Flores v. Brimex Ltd.
P’ship, 5 S.W.3d 816, 819 (Tex. App.—San Antonio 1999, no pet.).
       We review a trial court’s order granting or denying a petition for expunction under an
abuse of discretion standard. See Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex.
App.—Austin 2002, pet. denied). A trial court abuses its discretion if it acts “without reference to
any guiding rules or principles.” E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549,
558 (Tex. 1995). If an expunction ruling turns on a question of law, we review it de novo because
a “trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.”
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it
misinterprets or misapplies the law. Id.
Governing Law
       Although the law that governs expunctions is part of the code of criminal procedure, an
expunction proceeding is civil in nature and is governed by the rules of civil procedure. See
Carson v. State, 65 S.W.3d 774, 784 (Tex. App.—Fort Worth 2001, no pet.). Expunction is not a
constitutional or common law right, but purely a statutory privilege. Tex. Dep’t of Pub. Safety v.
Nail, 305 S.W.3d 673, 675 (Tex. App.—Austin 2010, no pet.). The trial court must strictly
comply with statutory requirements and has no equitable power to extend the clear meaning of the
statute. Harris Cnty. Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th
Dist.] 1997, no pet.).




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       Texas Code of Criminal Procedure Article 55.01(a)(2) states, in relevant part, that a person
who has been placed under a 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 (1) the
person has been released, (2) the charge, if any, has not resulted in a final conviction, (3) the
charge, if any, is no longer pending, and (4) there was no court-ordered community supervision
under Article 42.12 for the offense, unless the offense is a Class C misdemeanor. See TEX. CODE
CRIM. PROC. ANN. art. 55.01(a)(2) (West Supp. 2016). “The traditional and primary purpose of the
expunction statute is to remove records of wrongful arrests.” S.J. v. State, 438 S.W.3d 838, 841
(Tex. App.—Fort Worth 2014, no pet.). Thus, the expunction statute is “arrest-based” and
expunction is not available for less than all offenses arising from one arrest. Id. at 844; see
BLACK’S LAW DICTIONARY 116, 248, 1110 (8th ed. 2004) (defining an “arrest,” in pertinent part,
as a “taking or keeping of a person in custody by legal authority, esp. in response to a criminal
charge,” whereas a “charge” accuses someone of an offense, i.e., a “violation of the law”). In
other words, a person is not entitled to have any arrest records expunged under Article 55.01(a)(2)
when a charge is dismissed, but that dismissal results in community supervision for any charge
arising from the same arrest.     S.J., 438 S.W.3d at 845-46 (for petitioner to be entitled to
expunction, all charges arising from an arrest must meet requirements of Article 55.01).
Analysis
       The record establishes that DPS timely filed a notice of restricted appeal, was a party to
the underlying lawsuit, did not participate in the hearing that resulted in the trial court’s
expunction order, and did not file any postjudgment motions or requests for findings of fact and
conclusions of law. See TEX. R. APP. P. 26.1(c), 30; see also Lejeune, 297 S.W.3d at 255; see
generally Ex parte Hatzis, No. 12-14-00199-CV, 2015 WL 1966668 (Tex. App.—Tyler April 30,
2015, no pet.) (mem. op). Accordingly, we must determine whether error is apparent on the face
of the record. See TEX. R. APP. P. 26.1(c), 30; see also Lejeune, 297 S.W.3d at 255.
       To be entitled to expunction under Article 55.01(a)(2), Brown had the burden of showing
all of the following requirements: (1) she had been released; (2) the charge, if any, has not
resulted in a final conviction; (3) the charge, if any, is no longer pending; and (4) there was no
court-ordered community supervision for the offense. See TEX. CODE CRIM. PROC. ANN. art.
55.01(a)(2); Ex parte Green, 373 S.W.3d 111, 113 (Tex. App.—San Antonio 2012, no pet.). DPS
contends that Brown did not meet the fourth requirement for expunction of her April 29, 2008



                                                3
arrest. Specifically, DPS argues that because Brown’s arrest resulted in community supervision
for aggravated assault with a deadly weapon, she is not entitled to an expunction under Article
55.01(a)(2). We agree.
         The record shows that Brown was arrested on April 29, 2008, and charged with aggravated
assault with a deadly weapon, aggravated assault family violence, and theft by check. The theft
and family violence charges were dismissed. She pleaded guilty to aggravated assault with a
deadly weapon and was sentenced to five years of deferred adjudication community supervision.
It is undisputed that the all of the charges arose from the same arrest and that the aggravated
assault with a deadly weapon charge resulted in court-ordered community supervision. See Tex.
Dep’t of Pub. Safety v. Moran, 949 S.W.2d 523, 527 (Tex. App.—San Antonio 1997, no writ)
(deferred adjudication is court-ordered community supervision even if defendant not under any
court-imposed conditions, other than paying a fine and court costs). Consequently, because all
three charges arose from the same arrest and the aggravated assault with a deadly weapon charge
resulted in community supervision, Brown is not entitled to expunction of any records relating to
her April 29, 2008 arrest. See S.J., 438 S.W.3d at 845. For this reason, the trial court abused its
discretion by granting Brown’s petition for expunction. See Walker, 827 S.W.2d at 840; see also
Heine, 92 S.W.3d at 646.
         Under these circumstances, we conclude that error is apparent on the face of the record
and that DPS is entitled to prevail in this restricted appeal. See TEX. R. APP. P. 26.1(c), 30; see
also Lejeune, 297 S.W.3d at 255. Accordingly, we sustain DPS’s first issue and need not address
its remaining issues. See TEX. R. APP. P. 47.1.


                                                   DISPOSITION
         We reverse the trial court’s judgment granting expunction of Brown’s April 29, 2008
arrest and render judgment in favor of DPS. Furthermore, pursuant to DPS’s prayer for relief, we
order all documents that were turned over to the trial court or to Brown be returned to the
submitting agencies. See Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (reversal
of expunction applies to all respondents in trial court, even if they did not participate in appeal).
                                                                   BRIAN HOYLE
                                                                      Justice
Opinion delivered September 20, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                                    (PUBLISH)


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                                 COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                      SEPTEMBER 20, 2017


                                        NO. 12-16-00332-CV


                               EX PARTE: JENNIFER BROWN


                               Appeal from the 115th District Court
                          of Upshur County, Texas (Tr.Ct.No. 669-13)

                      THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment granting expunction of Jennifer Brown’s April 29, 2008 arrest be reversed and
judgment rendered in favor of the Department of Public Safety.                      All costs in this cause
expended in this court be, and the same are, hereby adjudged against the Appellee, JENNIFER
BROWN, for which let execution issue; and that this decision be certified to the court below for
observance.
                      Brian Hoyle, Justice.
                      Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
