      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-17-00809-CV



                         Texas Department of Public Safety, Appellant

                                                 v.

                                          L. V., Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
          NO. 46733, HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this restricted appeal, the Texas Department of Public Safety challenges the trial

court’s order expunging all records and files stemming from L.V.’s two arrests for assault. Because

no reporter’s record exists from the hearing resulting in the expunction order, we will reverse the

order of the trial court and remand the cause for a new hearing.


                                         BACKGROUND

               On May 22, 2017, L.V. filed a verified petition for expunction of records relating to

two arrests: (1) a March 2003 arrest for assault, assigned cause number M-17231 in the trial court;

and (2) a January 2007 arrest for assault, assigned cause number M-21830 in the trial court. In his

petition, L.V. asserted that he is entitled to expunction under Article 55.01(a)(2) of the Texas Code

of Criminal Procedure for each arrest and resulting charge. L.V. alleged that with respect to the

assault charge in cause number M-17231, “an indictment or information was presented, but the
same was subsequently dismissed or quashed on May 29, 2003, due to inability to locate the victim,

thereby indicating a lack of probable cause at the time of the dismissal.” L.V. also alleged, with

respect to both cause number M-17231 and cause number M-21830, that “he has been released, that

the charge has not resulted in a final conviction and is no longer pending, and that there was no

court-ordered community supervision under [Chapter 42A] of the Texas Code of Criminal Procedure.”

                On June 5, 2017, the Department filed an Answer and General Denial opposing

L.V.’s petition. In its Answer, the Department specifically alleged that L.V.’s “January 2007” arrest

for assault actually occurred on or about May 5, 2006; L.V. was charged with assault family violence

on January 10, 2007, in cause number M-21830; and L.V. was eventually sentenced to deferred

adjudication in this cause. The Department attached to its Answer unsworn, uncertified copies of

what purport on their face to be: (1) a complaint against L.V. for assault family violence in cause

number M-21830, signed on January 10, 2007; (2) an information charging L.V. with assault family

violence in cause M-21830; and (3) the “judgment of the court” in cause number M-21830, indicating

that L.V. pleaded nolo contendere and was sentenced to unsupervised, deferred adjudication for

six months.

                The trial court sent notice to the parties that it would conduct a hearing on

L.V.’s petition at 9:00 a.m. on July 14, 2017. See Tex. Code Crim. Proc. art. 55.02, § 2(c) (setting

and notice of hearing). To the extent an oral hearing was held on the expunction petition, the

Department did not appear. The same day, the trial court signed an order granting L.V. expunction

for both arrests.1


        1
         On August 3, 2017, the trial court signed a judgment nunc pro tunc on the ground that “the
offense dates were incorrectly stated in the order.” The judgment nunc pro tunc states that “the

                                                 2
                On December 1, 2017, the Department filed its notice of restricted appeal and

subsequently requested preparation of the reporter’s record. See Tex. R. App. P. 26.1(c). The official

court reporter informed this Court by letter that the trial court “did not go on the record or make a

record of this proceeding.”2


                                             ANALYSIS

A. Restricted Appeal

                To prevail on a restricted appeal, the Department must establish that: (1) it filed

notice of the restricted appeal within six months after judgment was signed; (2) it was a party to the

underlying lawsuit; (3) it did not participate in the hearing that resulted in the complained-of

judgment 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). In a restricted appeal, the “face of the record” consists of all

papers on file in the appeal that were before the trial court, including any reporter’s record. Bahar

v. Lyon Fin. Servs., Inc., 330 S.W.3d 379, 384 (Tex. App.—Austin 2010, pet. denied); see also

Arbogust v. Graham, No. 03-17-00800-CV, 2018 Tex. App. LEXIS 4798, at *2 (Tex. App.—Austin

June 28, 2018, no pet. h.) (mem. op.) (citing Norman Commc’ns v. Texas Eastman Co., 955 S.W.2d

269, 270 (Tex. 1997)). With this limitation, our scope of review is otherwise the same as in an




offense dates should be November 9, 2002, for cause number M-17231 and April 26, 2006, for
cause number M-21830.”
       2
           The appellee, L.V., has not filed an appellee’s brief.

                                                   3
ordinary appeal. Texas Dep’t of Pub. Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.—Dallas

2008, no pet.).

                  Here, the record shows that the Department timely filed its notice of appeal, was a

party to the expunction, did not participate in the hearing that resulted in the expunction order, and

did not file any timely post-judgment motions. See Pike-Grant, 447 S.W.3d at 886. Thus, the sole

issue before us is whether “error is apparent on the face of the record.” See id.


B. Expunction Law

                  The remedy of expunction allows a person who has been arrested for an offense to

have all records and files relating to the arrest expunged if he meets the statutory requirements set

out in chapter 55 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. arts. 55.01-

.06; Texas Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex. App.—Austin 2010, no pet.).

A petitioner seeking expunction under article 55.01(a)(2), such as L.V., must prove that (1) he has

been released; (2) the charge, if any, has not resulted in final conviction; (3) the charge, if any, is no

longer pending; and (4) there was no court-ordered community supervision under Chapter 42A for

the offense. See Tex. Code Crim. Proc. art. 55.01(a)(2).

                  A trial court’s order granting or denying a petition for expunction is reviewed under

an abuse-of-discretion standard. Heine v. Texas Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex.

App.—Austin 2002, pet. denied). To the extent 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; a court abuses its discretion if it misinterprets or misapplies the law. Nail,

305 S.W.3d at 678.

                                                    4
C. Analysis

                In its first issue, the Department asserts that the trial court misinterpreted the

expunction statute by allowing the expunction of records or files related to L.V.’s May 2006 arrest

because, according to the Department, L.V. was sentenced to deferred-adjudication community

supervision. In its second issue, the Department contends that the evidence is legally insufficient

to support the trial court’s order of expunction.

                The Department’s argument that there is legally insufficient evidence to support the

trial court’s expunction order is ordinarily reviewable in a restricted appeal. See Norman Commc’ns,

955 S.W.2d at 270; Jacobs, 250 S.W.3d at 210. We agree with the Department’s assertion that

L.V. would not be entitled to an expunction if the evidence before the trial court established that he

received court-ordered community supervision under Chapter 42A of the Texas Code of Criminal

Procedure, including deferred-adjudication community supervision, for the charges stemming from

the arrests. See Nail, 305 S.W.3d at 683-84. Moreover, the documents attached to the Department’s

Answer indicate that L.V. received community supervision for charges related to at least one of the

arrests (cause number M-21830).3 Nevertheless, based on the record before us, we cannot conclude

that the evidence is legally insufficient to support the trial court’s expunction order.

                An evidentiary hearing on a petition for expunction is required unless “the trial court

has at its disposal all of the information it needs to resolve the issues in the petition for expunction;

for example, through pleadings, summary judgment proof, or by judicially noticed court records.”




        3
         The documents do not suggest anything with respect to the other arrest for which L.V.
sought and obtained expunction, cause number M-17231.

                                                    5
Texas Dep’t of Pub. Safety v. N.E.A., No. 09-16-00057-CV, 2017 Tex. App. LEXIS 2525, at *2-3

(Tex. App.—Beaumont Mar. 23, 2017, no pet.) (mem. op). Here, the documents that the Department

attached to its Answer, and on which it now relies, are unsworn and uncertified copies, and

consequently, the trial court could have reasonably concluded that the Department failed to

conclusively negate L.V.’s petition for expunction and that a hearing was necessary to resolve the

issues before it. See Ex parte Pinnock, 437 S.W.3d 564, 568 (Tex. App.—Houston [14th Dist.]

2014, no pet.) (concluding that trial court could have reasonably concluded that documents attached

to Department’s answer did not prove essential elements of Department’s affirmative defense to

petition for expunction); see also Travis Cent. Appraisal Dist. v. Signature Flight Support Corp.,

140 S.W.3d 833, 844 (Tex. App.—Austin 2004, no pet.) (“Summary-judgment evidence must

be presented in a form that would be admissible in a conventional trial proceeding.”). Without a

reporter’s record from that hearing, however, we cannot know what evidence, if any, was introduced.

See Ex parte Ruiz, No. 04-11-00808-CV, 2012 Tex. App. LEXIS 5467, at *4 (Tex. App.—San

Antonio July 11, 2012, no pet.) (mem. op.) (reversing and remanding expunction order in restricted

appeal due to absence of reporter’s record, “[a]lthough the attachments to DPS’s affirmative defense

and original answer indicate that Ruiz received deferred adjudication and court-ordered community

supervision”); see also Ex parte Ho, No. 06-17-00120-CV, 2018 Tex. App. LEXIS 3159, at *6 (Tex.

App.—Texarkana May 4, 2018, no pet.) (mem. op.) (“Although the attachments to the DPS’s answer

indicated that Ho may not have been entitled to expunge records from his December 2014 arrest,

‘[w]ithout a reporter’s record, we cannot know what evidence, if any, was introduced at the

hearing.’”) (citing Ex parte Tippens, No. 06-17-00100-CV, 2018 Tex. App. LEXIS 2096, at *3 (Tex.

App.—Texarkana Mar. 23, 2018, no pet.) (mem. op.) and Ex parte Ruiz, 2012 Tex. App. LEXIS

                                                 6
5467, at *1); cf. Texas Dep’t of Pub. Safety v. Sowell, No. 11-10-00018-CV, 2011 Tex. App. LEXIS

5087, at *2 (Tex. App.—Eastland June 30, 2011, no pet.) (mem. op.) (affirming expunction order

in restricted appeal without reporter’s record, despite fact that “[a]ttachments to the answer filed

by the DPS indicate that Sowell . . . would . . . not be entitled to an expunction”). But see Ex parte

Border, No. 13-17-00113-CV, 2018 Tex. App. LEXIS 3875, at *6 (Tex. App.—Corpus Christi May

31, 2018, no pet.) (mem. op.) (concluding in restricted appeal of expunction order without reporter’s

record that “executed and file-stamped” judgments of conviction in clerk’s record were sufficient

to demonstrate “error on the face of the record”).

               Consequently, we cannot determine whether the evidence is sufficient to support the

trial court’s order of expunction, nor can we evaluate whether the trial court’s expunction decision

was based on a misinterpretation of the expunction statute or, instead, on the evidence before it.

See Ex parte Garcia, No. 04-15-00174-CV, 2016 Tex. App. LEXIS 1304, at * 4 (Tex. App.—San

Antonio Feb. 10, 2016, no pet.) (mem. op.) (remanding for new expunction hearing, explaining that

“in the absence of a reporter’s record, we cannot know what evidence, if any, was introduced before

the trial court”); Ex parte E.P.J., No. 10-14-00253-CV, 2015 Tex. App. LEXIS 2908, at *3 (Tex.

App.—Waco Mar. 26, 2015, no pet.) (mem. op.) (remanding for new expunction hearing because

without reporter’s record “we are unable to determine what evidence was before the trial court and,

thus, unable to determine whether error is apparent on the face of the record”); see also Arbogust,

2018 Tex. App. LEXIS 4798, at *2 (remanding for additional proceedings because “no record

was made of the hearing granting the default decree, preventing any review of the sufficiency of

the evidence”). In short, without a reporter’s record, we cannot decide the Department’s first and

second issues on appeal.

                                                  7
                In its third and fourth issues, the Department argues, in the alternative, that this cause

should be remanded to the trial court for a new hearing. Specifically, in its third issue, the Department

argues that the trial court erred to the extent that it failed to hold an evidentiary hearing because,

under the circumstances, an evidentiary hearing was required to resolve the issues presented. In its

fourth issue, the Department contends that “if there was a hearing, the order of expunction must be

reversed and the case remanded for a new trial because there is no reporter’s record.”

                Based on the trial court’s notice setting a hearing on L.V.’s petition for expunction

for a particular date and time, it appears that an oral hearing occurred. Without a reporter’s record,

however, we cannot ascertain whether evidence was presented at that hearing. See Ex parte Tippens,

2018 Tex. App. LEXIS 2096, at *5 (“Without a reporter’s record, we cannot know what evidence,

if any, was introduced at the hearing.”). Because the lack of a reporter’s record constitutes error on

the face of the record, we sustain the Department’s fourth issue on appeal. See Ruiz, 2012 Tex. App.

LEXIS 5467, at *4 (“[B]ecause DPS has complained of the absence of a reporter’s record, the trial

court’s order must be reversed, and the cause must be remanded for a new hearing.”); see also

Arbogust, 2018 Tex. App. LEXIS 4798, at *3 (“The absence of a reporter’s record constitutes error

apparent of the face of the record as a matter of law and requires reversal of the decree and remand

for a new trial.”) (citing Rogers v. Rogers, 561 S.W.2d 172, 173-74 (Tex. 1978)).


                                           CONCLUSION

                We reverse the trial court’s order of expunction and remand the cause to the trial

court for a new hearing.




                                                    8
                                           __________________________________________

                                           Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Reversed and Remanded

Filed: August 7, 2018




                                              9
