                           NUMBER 13-12-00177-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

TEXAS DEPARTMENT OF PUBLIC SAFETY,                                     Appellant,


                                         v.

GEORGE BLANCAS,                                                        Appellee.


                  On appeal from the 389th District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION
        Before Chief Justice Valdez and Justices Garza and Vela
                Memorandum Opinion by Justice Garza
      In this restricted appeal, the Texas Department of Public Safety (DPS) appeals

from the trial court’s order expunging a misdemeanor charge for driving while

intoxicated (DWI) against appellee, George Blancas. DPS contends: (1) that appellee

was not entitled to an expunction of records related to his arrest for DWI because he
served a term of probation for the DWI offense; and (2) in the alternative, because there

is no reporter’s record of the expunction hearing, the trial court’s order should be

reversed and remanded for a new trial.1                      Because the trial court erred in granting

appellee an expunction for his DWI charge, we reverse the judgment of the trial court

and render judgment denying appellee’s request for an expunction with regard to the

DWI.

                                                I. BACKGROUND

        Appellee was arrested for DWI in 2001. On February 14, 2002, he pleaded guilty

and was placed on community supervision for 180 days. On July 27, 2011, appellee

filed a petition for expunction.2 On September 12, 2011, DPS filed an answer, in which

it asserted that appellee was not entitled to an expunction because he had served

community supervision for the offense that he sought to expunge. DPS attached to its

answer copies of: (1) the 2001 DWI complaint; (2) the DWI judgment showing that

appellee pleaded guilty, was assessed a fine and a thirty-day sentence, which was

suspended, and appellee was placed on community supervision for 180 days; (3)

appellee’s motion for termination of his community supervision; and (4) an August 26,

2002 order from the trial court stating that appellee’s period of community supervision

has expired and that he satisfactorily fulfilled the conditions of community supervision.

On September 13, 2011—the day after DPS filed its answer—the trial court granted

appellee’s expunction. This restricted appeal followed.

        1
            Appellee has not filed a brief to assist us in the disposition of this appeal.
        2
          We note that the clerk’s record contains an “Order Setting Hearing Date,” dated July 27, 2010.
Assuming that “2010” is a typographical error, the order setting hearing was signed the same day
appellee’s petition was filed. The order recites, however, that appellee’s petition was filed July 27, 2011,
“that more than 30 days have passed since the filing of said petition, and that said petition should be
heard.” The order sets a hearing date of September 13, 2011, the day the trial court granted the
expunction. We do not have a record of the hearing before us.

                                                         2
                         II. STANDARD OF REVIEW AND APPLICABLE LAW

         An appellate court reviews a trial court's ruling on a petition for expunction under

an abuse of discretion standard. Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex. App.—

San Antonio 2001, no pet.). To successfully attack an order for expunction of records

relating to an arrest by restricted appeal, DPS must show that: (1) it was a party to the

expunction suit; (2) it was served with a copy of the petition for expunction and filed a

written response, but it did not participate either in person or through counsel in the

hearing that resulted in the judgment;3 (3) it filed its notice of appeal within the six-

month deadline; and (4) the face of record establishes that the arrestee was not entitled

to expunction. See Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004);

Tex. Dep't of Pub. Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.—Dallas 2008, no

pet.).       Because it is clear from the record that DPS meets the first three of these

requirements, we consider only whether the face of the record establishes that appellee

was not entitled to an expunction of the charge in question.

                                           III. DISCUSSION

         DPS contends the trial court erred in granting appellee an expunction of his DWI

charge because appellee pleaded guilty and served court-ordered community

supervision as a result of his arrest for DWI. See TEX. CODE CRIM. PROC. ANN. art.

55.01 (West Supp. 2011). The expunction statute was enacted by the legislature to

allow the expunction of wrongful arrest records. Harris County Dist. Attorney's Office v.

D.W.B., 860 S.W.2d 719, 721 (Tex. App.—Houston [1st Dist. 1993, no pet.) (citing

Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991)). “It

         3
         DPS did not appear at the hearing. DPS notes that it requested a reporter’s record of the
expunction hearing, but was advised by the trial court’s court reporter that no record of the hearing was
made.

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was not ‘intended to allow a person who is arrested, pleads guilty to an offense, and

receives probation pursuant to a guilty plea to expunge arrest and court records

concerning that offense.’” Id. (quoting Tex. Dep’t of Public Safety v. Failla, 619 S.W.2d

215, 217 (Tex. App.—Texarkana 1981, no writ)); see also Smith v. State, No. 09-09-

00159-CV, 2009 Tex. App. LEXIS 4237, at *3 (Tex. App.—Beaumont May 27, 2009, no

pet.) (mem. op.); Ex parte Hampton, No. 05-07-00523-CV, 2008 Tex. App. LEXIS 2142,

at **2–3 (Tex. App.—Dallas March 26, 2008, pet. denied) (mem. op.).

       A review of the record before us establishes that appellee was charged with and

entered a plea of guilty to DWI. The trial court subsequently found him guilty and

placed him on community supervision for a period of 180 days. Because appellee’s

DWI charge resulted in a final conviction, he does not meet all of the statutory

requirements for an expunction of this charge under article 55.01. See TEX. CODE CRIM.

PROC. ANN. art. 55.01.4.          Therefore, DPS has shown that the face of the record

established that appellee was not entitled to expunction. See D.W.B., 860 S.W.2d at

721. We conclude the trial court abused its discretion in ordering the expunction.

                                            III. CONCLUSION

       Because appellee failed to prove that he satisfied the conditions imposed by

article 55.01, we reverse the judgment of the trial court and render judgment denying
       4
           Among other requirements, article 55.01 provides:

   (a) A person who has been placed under a custodial or noncustodial arrest for commission
       of either a felony or misdemeanor is entitled to have all records and files relating to the
       arrest expunged if:

                 ....

               (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, . . . .

       TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2).

                                                    4
appellee’s petition for expunction on the DWI offense. See D.W.B, 860 S.W.2d at 721;

Tex. Dep't of Pub. Safety v. Olivares, No. 13-06-035-CV, 2007 Tex. App. LEXIS 5904,

at *12 n.3 (Tex. App.—Corpus Christi July 26, 2007, no pet.) (explaining that appellee's

final conviction and twelve months on probation for DWI prevented expunction on the

charge).




                                               DORI CONTRERAS GARZA
                                               Justice

Delivered and filed the
16th day of August, 2012.




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