
 
 



NUMBER 13-09-256-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 
 
TEXAS DEPARTMENT OF PUBLIC SAFETY,		          Appellant,
 
v. 

JUANA MARIA GUTIERREZ,				  		  Appellee.
 

On appeal from the 107th District Court 
of Nueces County, Texas.

 

MEMORANDUM OPINION


Before Justices Yañez, Benavides, and Vela

Memorandum Opinion by Justice Vela


	In this restricted appeal, appellant, Texas Department of Public Safety ("DPS"), asks
this Court to reverse the trial court's order granting a petition for the expunction of records
filed by appellee, Juana Maria Gutierrez.  By one issue, the DPS contends Gutierrez is not
entitled to an expunction of records.  We reverse and remand for proceedings consistent
with this opinion.
I.  Background (1)
	On April 22, 2002, Gutierrez pleaded guilty to the class A misdemeanor charge of
resisting arrest, and was placed on deferred adjudication community supervision.  The trial
court dismissed the case on April 22, 2003, finding that she had complied with the
conditions of deferred adjudication.  On October 18, 2003, Gutierrez was arrested for
burglary of a habitation with intent to commit assault.  The State dismissed the charges in
the burglary case on October 19, 2003.  Thereafter, on July 29, 2008, Gutierrez petitioned
the trial court to expunge the record of her arrest in both the resisting arrest and the
burglary cases.  At a hearing at which DPS was not present, Gutierrez's counsel
acknowledged to the trial court that Gutierrez was only eligible for expunction with respect
to the burglary charge and stated that he would "redo the order showing where we will
bypass [the resisting arrest charge] and grant [relief on the burglary charge]."  However,
the trial court subsequently signed an order granting expunction on both charges.
II.  Restricted Appeal
	To attack a trial court's judgment by restricted appeal, the DPS must show that (1)
a notice of appeal was filed within six months of the date the complained-of judgment was
signed; (2) appellant was a party to the suit who did not participate in the hearing that
resulted in the judgment or order; (3) appellant did not timely file a post-judgment motion,
or request findings of fact and conclusions of law, or file a notice of appeal within the time
permitted under rule 26.1(a); and (4) the complained-of error is apparent from the face of
the record.  Tex. R. App. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.
2004); Tex. Dep't of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.-Corpus
Christi, 2007, no pet.); see Tex. R. App. P. 26.1(c).
	DPS filed its notice of appeal within six months of the date that the trial court signed
the order. (2)  DPS is a proper party to this suit because DPS was notified of the hearing,
DPS filed an answer, and Gutierrez listed DPS as an entity potentially having records that
he sought expunged.  See Tex. Dep't of Pub. Safety v. Arbelo, 170 S.W.3d 734, 735 (Tex.
App.-Amarillo 2005, no pet.) (providing that listing the entity as potentially having records
sought expunged "permits one to reasonably deem the DPS as a party to the action"). 
DPS did not participate in the hearing expunging Gutierrez's record. (3)  In its notice of
restricted appeal, DPS states that it did not file any post-judgment motions, request
findings of fact and conclusions of law, or file a notice of appeal, and the record does not
show otherwise.  Finally, as addressed below, the complained-of error is apparent from the
face of the record.  See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam) (setting out that the face of the record, for purposes of restricted
appeals, consists of all the papers on file in the appeal).  Therefore, DPS satisfied each
element for obtaining relief through this restricted appeal.
III.  Expunction of Records
	By one issue, DPS contends that the trial court abused its discretion by entering an
order expunging Gutierrez's arrest on the resisting arrest charge.  DPS argues that
Gutierrez  was not entitled to relief under article 55.01(2)(B) of the Texas Code of Criminal
Procedure because she was placed on probation as a result of an arrest.  See Tex. Code
Crim. Proc. Ann. art. 55.01 (Vernon Supp. 2009).  We agree.
A.  Applicable Law
	To be entitled to an expunction, the petitioner, Gutierrez in this case, has the burden
of proving that all the statutory requirements have been satisfied.  "The trial court must
strictly comply with the statutory procedures for expunction, and it commits reversible error
when it fails to comply."  Fredricks, 235 S.W.3d at 281.  The applicable rules a trial court
applies in determining a person's right to expunction are set out in article 55.01 of the
Texas Code of Criminal Procedure.  Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon Supp.
2009).  Article 55.01 sets out that a person is entitled to expunction of an arrest record if
	(1) the person is tried for the offense for which the person was arrested and 
is:

		(A) acquitted by the trial court, except as provided by
Subsection (c) of this section; or

		(B) convicted and subsequently pardoned; or

	(2) each of the following conditions exist:

		. . . .

		(B) 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 any offense other than a Class C
misdemeanor . . . .

Id.
B.  Analysis
	Gutierrez was neither acquitted by the trial court, nor convicted and subsequently
pardoned.  Therefore, Gutierrez had the burden to show that each of the conditions listed
under article 55.01(2) existed, including, in pertinent part, that there was no court ordered
community supervision.  See id., art. 55.01(2)(B).  Gutierrez acknowledged in her petition
for expunction and at the hearing that she had served community supervision for the
offense.  Thus, she was not entitled to the complained-of expunction.
	Therefore, because Gutierrez has not proven that all the statutory requirements
have been satisfied, specifically that she was not placed on probation under article 42.12,
she is not entitled to expunction of records related to this arrest.  See Tex. Code Crim.
Proc. Ann. art. 55.01(2)(B).  We conclude the trial court erred in entering an order
expunging Gutierrez's record with respect to the resisting arrest charge.  DPS's sole issue
is sustained.
IV.  Conclusion
	Accordingly, we reverse the trial court's expunction order only with respect to the
resisting arrest charge and remand for proceedings consistent with this opinion. 
 
 								ROSE VELA
								Justice


Memorandum Opinion delivered and 
filed this 12th day of November, 2009.


1. The statement of facts set out in appellant's brief are to be accepted as true if supported by the
record unless contradicted by another party.  Tex. R. App. P. 38.1(g).  In this case, Morales did not file a brief. 
We will therefore accept as true the fact statement filed by Texas Department of Public Safety (DPS), if
supported by record references.
2. The trial court signed the order on March 12, 2007, and DPS filed its notice of appeal on September
7, 2007.
3. Although DPS filed an answer to Morales's petition for expunction of records, filing an answer is not
participation for purposes of a restricted appeal.  Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985).
