      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-17-00114-CV



                         Texas Department of Public Safety, Appellant

                                                   v.

                                           A. M., Appellee


       FROM THE DISTRICT COURT OF HAYS COUNTY, 22ND JUDICIAL DISTRICT
           NO. 15-0104, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                The Texas Department of Public Safety filed a restricted appeal challenging the

district court’s order for expunction of records relating to A.M.’s arrest for assault on a public

servant. In four issues, DPS contends that: (1) A.M. was not entitled to expunction of her arrest

records because she served a term of community supervision as a result of her arrest; (2) no evidence

supports the expunction order; (3) the district court erred by not holding a hearing; and alternatively,

(4) if the court held a hearing, the expunction order must be reversed and the cause remanded for

new trial because there was no reporter’s record of the hearing. We will reverse the district court’s

order and render judgment denying A.M. expunction of her records.
                                          BACKGROUND

                The record reflects that A.M. filed a verified petition in 2015 seeking expunction of

all records and files arising from her arrest for assault on a public servant, a third-degree felony.1

As a result of her arrest for assault on a public servant, A.M. was charged with resisting arrest. A.M.

pleaded no contest to the resisting arrest charge and completed two years of deferred adjudication

community supervision for that charge. DPS filed an answer generally denying all allegations in

A.M.’s petition, demanding proof of her allegations, and contending that A.M. was not entitled to

expunction of the records because, among other reasons, she served a term of community supervision

as a result of her arrest.

                The district court scheduled an August 17, 2016 hearing on A.M.’s petition for

expunction. That day, the court signed an order granting A.M.’s petition. The order specifies that

the court considered the pleadings, evidence, and documents on file, that the court found it had

jurisdiction over the action and the parties, and that all procedural and substantive requirements for

expunction of the criminal records were met. Additionally, the bottom of the order contains a

signature above a line stating, “Agreed to by District Attorney’s Office.”

                DPS filed a restricted appeal challenging the expunction order. After DPS filed its

appeal, the official court reporter for the 22nd District Court filed a written notice stating that there

is no reporter’s record of the expunction hearing.




        1
         A.M.’s three-sentence verification identified herself as the petitioner accused of the charges
and stated that she had knowledge of the facts in the petition, which were true and correct.

                                                   2
                                            DISCUSSION

                The statutory right to seek an expunction is available only when all statutory

conditions have been met. Texas Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex.

App.—Austin 2010, no pet.). Courts have no power to extend equitable relief beyond the clear

meaning of the expunction statute. Travis Cty. Dist. Attorney v. M.M., 354 S.W.3d 920, 923 (Tex.

App.—Austin 2011, no pet.). A petitioner bears the burden of proving compliance with all statutory

requirements for expunction in this civil proceeding. Id. To meet the burden of proving compliance

with all statutory requirements for expunction of criminal records, a petitioner must provide more

than allegations in a verified pleading. Ex parte K.R.K., 446 S.W.3d 540, 544 (Tex. App.—San

Antonio 2014, no pet.) (noting that “allegations in a petition seeking expunction are not evidence”).


Restricted appeal requirements

                To sustain its restricted appeal challenging the expunction order, DPS must prove

that: (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 post-judgment 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; Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014). The face of the record in a

restricted appeal consists of all papers on file in the appeal, including the reporter’s record. Norman

Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). Absence of legally sufficient

evidence to support a judgment is reviewable in a restricted appeal. Id. at 270; see Texas Dep’t of

Pub. Safety v. J.W.D., No. 03-14-00101-CV, 2014 Tex. App. LEXIS 13886, at *4-5 (Tex.

                                                    3
App.—Austin Dec. 31, 2014, pet. denied) (mem. op.) (noting that review for error on face of record

in appeal of expunction order involves consideration of entire case and encompasses claims of legal

and factual insufficiency). Because 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 order, and did not timely file any postjudgment motions or requests for findings of fact

and conclusions of law, only the fourth element of the restricted appeal—i.e., whether there is error

on the face of the record—is at issue here.


Standard of review

                We review a trial court’s order granting or denying expunction for abuse of discretion,

which generally means that the trial court acted without reference to any guiding rules or principles.

Nail, 305 S.W.3d at 678 (internal citations omitted). 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. Id.

                When reviewing a challenge to the legal sufficiency of the evidence, we review the

evidence in the light most favorable to the judgment, crediting favorable evidence if reasonable

jurors could and disregarding contrary evidence unless reasonable jurors could not. Id. (citing City

of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005)). We sustain a legal sufficiency complaint if

the record reveals: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or

evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence




                                                   4
offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively

establishes the opposite of the vital fact. Id. (citing Keller, 168 S.W.3d at 810).


A.M. was not entitled to order of expunction

                In its first issue, DPS contends that A.M. was not entitled to expunction of her arrest

records because she served a term of community supervision as a result of her arrest. The relevant

portion of the expunction statute in effect when A.M. filed her petition required proof that:


        (2) 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 the offense, unless the offense is a class C
        misdemeanor . . . .


See Act of May 27, 2011, 82d Leg., R.S., ch. 894, 2011 Tex. Gen. Laws 2275, 2275-76 (amended

2015, 2017) (current version at Tex. Code Crim. Proc. art. 55.01(a)(2)). Thus, under the relevant

version of the statute, a petitioner seeking expunction must prove that: (1) she has been released; (2)

the charge, if any, did not result 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

it was a class C misdemeanor. See T.H. v. Texas Dep’t of Pub. Safety, No. 03-15-00304-CV,

2016 Tex. App. LEXIS 10856, at *6 (Tex. App.—Austin Oct. 6, 2016, no pet.) (mem. op.).

                Texas courts, including ours, have held that article 55.01 requires an “arrest-based”

approach to expunction because it authorizes expunction of records concerning an arrest. Texas

Dep’t of Pub. Safety v. J.A.M., No. 01-16-00814-CV, 2017 Tex. App. LEXIS 3982, at *5 (Tex.

App.—Houston [1st Dist.] May 2, 2017, no pet.) (mem. op.); T.H., 2016 Tex. App. LEXIS 10856,



                                                    5
at *9; S.J. v. State, 438 S.W.3d 838, 843-46 (Tex. App.— Fort Worth 2014, no pet.); Texas Dep’t

of Pub. Safety v. Dicken, 415 S.W.3d 476, 479 (Tex. App.—San Antonio 2013, no pet.). “The

statute does not address or make allowances for expunction of individual offenses stemming from

an arrest.” T.H., 2016 Tex. App. LEXIS 10856, at *8 (quoting Dicken, 415 S.W.3d at 480). If

expunction is not available for all charges stemming from an arrest, it is not available for any of

them. J.A.M., 2017 Tex. App. LEXIS 3982, at *5; V.E. v. Travis Cty. Dist. Attorney, 500 S.W.3d

652, 655-56 (Tex. App.—Austin 2016, no pet.).

                Here, A.M.’s “Deferment of Adjudication” order in the record shows that A.M. was

“placed on community supervision for a term of two years” after pleading “Nolo Contendere to the

charge [of] resisting arrest,” stemming from her arrest for assault on a public servant, a peace officer.

A.M. acknowledges that she “did complete deferred adjudication for the resisting arrest charge” but

contends that she was entitled to expunction because resisting arrest was not the offense for which

she was arrested. However, as we have noted, the expunction statute “does not address or make

allowances for expunction of individual offenses stemming from an arrest.” T.H., 2016 Tex. App.

LEXIS 10856, at *8 (quoting Dicken, 415 S.W.3d at 480). Rather, “the statute requires an

all-or-nothing approach to expunction for each arrest.” V.E., 500 S.W.3d at 656. We conclude that

there is error on the face of this record, which shows that A.M. served a term of community

supervision for a charge stemming from her arrest for assault on a public servant and that A.M. was

not entitled to expunction of records under 55.01(a)(2) for that arrest. We sustain DPS’s first issue.

                A.M. responds that even if her deferred adjudication community supervision on the

resisting-arrest charge rendered her ineligible to expunge records of her arrest for assault on a public



                                                   6
servant, she met the statutory requirements for a “discretionary expunction” recommended to the

district court by a prosecutor under article 55.01(b)(2). See Act of May 27, 2011, 82d Leg., R.S., ch.

690, 2011 Tex. Gen. Laws 1653, 1654 (amended 2015, 2017) (current version at Tex. Code Crim.

Proc. art. 55.01(b)(2)). That statute provided, in relevant part, that a district court may follow the

procedure set forth in article 55.02 to expunge all records and files relating to the arrest of a person

for a felony or misdemeanor if:


        (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.


Id. A.M.’s petition filed with the district court does not seek expunction on this basis. But here, she

makes the unsupported argument that because the expunction order was signed as “Agreed to by

District Attorney’s Office,” the prosecutor “made the recommendation” for expunction. We disagree

that the signature indicating that the prosecutor agreed to the expunction order was, without more,

an affirmative recommendation of expunction to the court under article 55.02(b)(2). Cf. Texas Dep’t

of Pub. Safety v. Ibarra, 444 S.W.3d 735, 737 (Tex. App.—Corpus Christi 2014, pet. denied)

(affirming expunction order that appellee specifically pleaded for, and trial court specifically granted,

under article 55.01(b)(2) where evidence showed that prosecutor recommended expunction as part

of appellee’s plea bargain); see Bexar Cty. Criminal Dist. Attorney’s Office v. Mayo, 773 S.W.2d

642, 644 (Tex. App.—San Antonio 1989, no writ) (reversing trial court’s order of expunction and




                                                   7
rejecting appellee’s contention that district attorney’s signature indicating expunction order was

“approved” meant that order was “a consent judgment” or approved as to form and substance).

               Further, as noted in DPS’s second issue, A.M. had the burden of proving her

compliance with all statutory requirements for expunction of criminal records, but she presented no

evidence supporting the district court’s expunction order. DPS correctly points out that A.M.

provided no evidence showing that the prosecutor recommended expunction to the court in

accordance with article 55.01(b)(2). Cf. Ibarra, 444 S.W.3d at 737 (noting that order of deferred

adjudication stated that as part of appellee’s plea bargain, prosecutor “recommend[ed] expunction

if law allows under 55.01(b)(2)”); see Ex parte Andrews, 955 S.W.2d 178, 179-80 (Tex.

App.—Waco 1997, no pet.) (concluding that appellee’s affidavit and affidavit from former district

attorney outlining agreement to expunge records in exchange for plea of no contest was some

evidence supporting trial court’s agreed order of expunction).

               Aside from her verified pleading, A.M. provided nothing to carry her burden of proof

on her petition for expunction. See Ex parte K.R.K., 446 S.W.3d at 544 (noting that petitioner

seeking expunction order must provide more than just allegations in verified pleading to carry burden

of proof); Texas Dep’t of Pub. Safety v. Borhani, No. 03-08-00142-CV, 2008 Tex. App. LEXIS

7509, at *9 (Tex. App.—Austin Oct. 3, 2008, no pet.) (mem. op.) (concluding that there was no

evidence supporting trial court’s expunction order because “allegations alone in a verified petition,

after being put in issue by a general denial, do not constitute proof of those allegations”). The

district court’s order, which determined that all procedural and substantive requirements for




                                                 8
expunction of criminal records were met, is not supported by legally sufficient evidence. We sustain

DPS’s second issue.2


                                         CONCLUSION

               We reverse the district court’s August 17, 2016 Order for Expunction and render

judgment that A.M. take nothing by her petition.




                                              Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Field and Bourland

Reversed and Rendered

Filed: March 7, 2018




       2
           Having sustained DPS’s first and second issues, we need not address its remaining
appellate issues.

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