                                        NO. 07-11-0430-CV

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL C

                                      MARCH 21, 2012
                              ______________________________

                              Ex parte EARL PRESTON CHEEKS
                             _______________________________

              FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

                NO. 2011-556,765; HON. WILLIAM SOWDER, PRESIDING
                         _______________________________

                                   Memorandum Opinion
                             _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

        The Texas Department of Public Safety (the Department) appeals from an order

of expunction granted in favor of Earl Preston Cheeks (Cheeks). It contends that there

is no evidence to support the order because Cheeks served “probation” for the 1961

offense and reversal is required because the evidentiary hearing upon the motion to

expunge was not transcribed. Since Cheeks concedes the accuracy of the second

issue and need for a reversal and remand, we reverse the order granting expunction

and remand the cause to the trial court.1

                                                        Brian Quinn
                                                        Chief Justice




        1
          We make no comment upon the first issue, that is, whether expunction could be granted,
because the applicant had received probation. Again, there is no record of the evidence presented to the
trial court, and the Department’s effort to fill the void by alluding to its answer to the motion and the
attachments thereto are ineffective. Pleadings are not evidence. In re Marriage of M.C., 65 S.W.3d 188,
193 (Tex. App.–Amarillo 2001, no pet.).
