                              NUMBER 13-08-635-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                          Appellant,


                                           v.

MARK RYAN KELLY,                                                             Appellee.


                 On appeal from County Court at Law No. 1
                        of Calhoun County, Texas.


                         MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Vela

      In this restricted appeal, the Texas Department of Public Safety (“DPS”) complains

that the trial court erred in granting an order expunging the criminal record of appellee,

Mark Ryan Kelly. See TEX . R. APP. P. 30. On appeal, DPS argues that (1) the trial court
erred in granting the expunction because DPS did not receive proper notice of the hearing

at which the expunction was granted; and (2) Kelly was not entitled to expunction because

he had been found guilty of a crime and had served deferred-adjudication community

supervision. Because the trial court did not comply with the statutory requirements for

expunction, we reverse and set aside the order of expunction and remand for proceedings

consistent with this opinion.

                                          I.
                                      BACKGROUND

       On August 28, 2008, Kelly filed a request for expunction of his criminal record, in

which he admitted that he had been arrested for possession of marihuana, a class B

misdemeanor, and alleged that he was entitled to expunction pursuant to article 55.02 of

the Texas Code of Criminal Procedure. See TEX . CODE CRIM . PROC . ANN . art. 55.02

(Vernon Supp. 2008). He properly notified DPS of his request, and asked the trial court

to set a hearing on the matter. The trial court set a hearing for October 8, 2008, but

notified only Kelly’s attorney and the Calhoun County District Attorney’s office. At the

hearing, only Kelly’s attorney and a Calhoun County assistant district attorney appeared

and represented to the trial court that they both agreed to the expunction. The trial court

signed an order of expunction and notified DPS of the order. On October 10, 2008, DPS

filed a notice of appeal. In this appeal, DPS complains that it was not properly notified of

the expunction hearing, and that Kelly was not entitled to an expunction because he was

found guilty and served community supervision, which is a bar to expunction pursuant to

article 55.01 of the Texas Code of Criminal Procedure. TEX . CODE CRIM . PROC . ANN . art.

55.01(a)(2)(b) (Vernon 2006).


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                                             II.
                                    RESTRICTED APPEAL

       To attack an order by restricted appeal, DPS must show: (1) it was a party who did

not participate, either in person or through counsel, in the hearing that resulted in the

judgment complained of; (2) it filed a notice of appeal within six months after the order was

signed; (3) it did not timely file a postjudgment motion or request findings of fact and

conclusions of law; and (4) error is apparent on the face of the record. TEX . R. APP. P.

26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see Tex.

Dep’t of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.–Corpus Christi 2007,

no pet.).

                                             III.
                                   STANDARD OF REVIEW

       In restricted appeals, we are limited to considering only errors that are apparent on

the face of the record. See Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270

(Tex.1997) (per curiam); Fredricks, 235 S.W.3d at 280. The “face of the record” includes

all papers on file in the appeal and the reporter’s record, if any. Norman Commc’ns, 955

S.W.2d at 270. A restricted appeal affords the appellant the same scope of review as an

ordinary appeal—in other words, the entire case. See id.

       Texas Code of Criminal Procedure article 55.02 governs the procedures for

expunctions. TEX . CODE CRIM . PROC . ANN . art. 55.02. These provisions are mandatory and

must be complied with in an expunction proceeding. Tex. Dep’t of Pub. Safety v. Deck,

954 S.W.2d 108, 112 (Tex. App.–San Antonio 1997, no writ); Tex. Dep’t of Pub. Safety v.



                                              3
Riley, 773 S.W.2d 756, 758 (Tex. App.–San Antonio 1989, no writ). Article 55.02 provides

that the court shall set a hearing on a petition for expunction no sooner than 30 days from

the filing of the petition and shall give reasonable notice of the hearing to each respondent

named in the petition, namely, the various law enforcement agencies that have records or

files subject to expunction. TEX . CODE CRIM . PROC . ANN . art. 55.02, § 2(c). While there is

no requirement that the respondents be served with the petition for expunction itself, the

court is required to notify them of the hearing. Deck, 954 S.W.2d at 112. Such procedures

are mandatory and must be complied with. Id. If the record does not indicate that a proper

agency was notified in accordance with the statute, then the record reflects a proceeding

in violation of the statute and the expunction order must be set aside. See Rodriguez v.

T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.–San Antonio 1991, no writ) (reversing trial

court and setting aside expunction order after finding that hearing took place without notice

to any respondent); Riley, 773 S.W.2d at 758 (setting aside expunction order because

record did not reflect agencies had been notified of hearing and because judge violated

thirty day waiting period).

          Here, a hearing took place, but neither DPS nor any other agency listed in the

petition for expunction (other than the Calhoun County District Attorney’s office) received

notice.     As in Deck, we hold that it was error for the court to order Kelly’s records

expunged without providing notice to DPS of the hearing. This violation of mandatory

procedures requires us to set aside the trial court’s order expunging Kelly’s records.

Accordingly, we sustain DPS’s first issue.




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        Due to our disposition of issue one, we need not address DPS’s second issue. TEX .

R. APP. P. 47.1.

                                                    IV.
                                              CONCLUSION

        The judgment of the trial court is reversed, the expunction order is set aside and the

case is remanded to the trial court for proceedings consistent with this opinion.1




                                                             ROSE VELA
                                                             Justice




Memorandum Opinion delivered and
filed this 26th day of March, 2009.




        1
           The reversal of an expunction order involves all of the agencies in possession of the petitioner’s
crim inal records, even of those who did not appeal. Ex parte Elliot, 815 S.W .2d 251, 252 (Tex. 1991).




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