Reverse and Render; Opinion Filed June 4, 2015.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-14-00464-CV

                 TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
                                     V.
                         ERICA KAY JACKSON, Appellee

                          On Appeal from the 354th District Court
                                  Hunt County, Texas
                              Trial Court Cause No. 79,917

                            MEMORANDUM OPINION
                Before Chief Justice Wright, Justice Brown, and Justice Stoddart
                                  Opinion by Justice Stoddart
       The Texas Department of Public Safety (DPS) filed a restricted appeal of the trial court’s

order granting the petition for expunction filed by Erica Kay Jackson. In a single issue, DPS

argues the evidence is insufficient to show Jackson is entitled to an expunction. We reverse the

trial court’s order of expunction, and render judgment denying Jackson’s petition for expunction.

                                    FACTUAL BACKGROUND

       The facts underlying this appeal are not disputed. Jackson was charged with possession

of a controlled substance. In the county court at law (County Court), Jackson pleaded guilty to

the offense and on May 17, 2011, the County Court entered an “Order of Deferred Adjudication;

Community Supervision,” placing Jackson on community supervision for twelve months. On

August 30, 2013, Jackson filed an “Agreed Motion for New Trial and Motion in Arrest of
Judgment” (Motion). In the Motion, Jackson stated she “successfully completed the assigned

deferred probation term of 12 months” and acknowledged she was filing an “Out of Time

Motion for New Trial.” The County Court granted the Motion. The prosecuting attorney then

filed a motion to dismiss the criminal action “[i]n the interest of justice.” On September 11,

2013, the County Court entered an order dismissing the criminal action against Jackson.

       On October 1, 2013, Jackson filed a petition for expunction, asking the trial court to

expunge all criminal records and files pertaining to her arrest. DPS filed an answer opposing the

motion on the ground that Jackson received deferred adjudication and served community

supervision as a consequence of her arrest. The trial court held a hearing on the petition for

expunction, but DPS did not appear at the hearing. However, counsel for the Hunt County

District Attorney’s Office informed the trial court that the DA’s office did not oppose Jackson’s

petition. Following the hearing, the trial court entered an order of expunction. DPS filed this

restricted appeal arguing error is apparent on the face of the record.

                                         LAW & ANALYSIS

       A restricted appeal must (1) be brought within six months after the judgment was signed;

(2) by a party to the underlying lawsuit; (3) who 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) complain of error apparent on the face of the

record. TEX. R. APP. P. 26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255

(Tex. 2009) (per curiam); Bank of New York Mellon v. Redbud 115 Land Trust, 452 S.W.3d 868,

870-71 (Tex. App.—Dallas 2014, pet. denied). For purposes of a restricted appeal, the record

consists of all papers filed in the appeal, including the reporter’s record. In re E.M.V., 312

S.W.3d 288, 290 (Tex. App.—Dallas 2010, no pet.). It is uncontested that DPS filed the

restricted appeal within six months of the date the trial court signed the order of expunction and

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DPS did not participate in the hearing and did not file any motions or requests for findings of fact

or conclusions of law after the order issued. Additionally, DPS is listed in the petition for

expunction as an entity that may have records pertaining to Jackson’s arrest or offense, which is

sufficient to make DPS a party to the suit. See Tex. Dep’t of Pub. Safety v. Foster, 398 S.W.3d

887, 890 (Tex. App.—Dallas 2013, no pet.). The issue before us, then, is whether there is error

apparent on the face of the record.

       We review a trial court’s ruling on a petition for expunction for an abuse of discretion.

Collin Cnty. Dist. Attorney’s Office v. Fourrier, 453 S.W.3d 536, 39 (Tex. App.—Dallas 2014,

no pet.). A trial court abuses its discretion if it orders an expunction of records despite a

petitioner’s failure to satisfy all of the statutory requirements. Id. However, to the extent a

ruling on expunction turns on a question of law, we review the ruling de novo because a trial

court has no discretion when determining what the law is or applying the law to the facts. Id.

       The remedy of expunction allows a person who has been arrested for the commission of

an offense to have the records and files relating to the arrest expunged if he meets the statutory

requirements of article 55.01 of the code of criminal procedure. See TEX. CODE CRIM. PROC.

ANN. art. 55.01 (West Supp. 2014); see also Fourrier, 453 S.W.3d at 538-39. A petitioner’s

right to expunction is neither a constitutional nor common law right, but rather a statutory

privilege. Fourrier, 453 S.W.3d at 539. Where a cause of action is created by statute, all of its

provisions are mandatory and exclusive, requiring strict compliance for the action to be

sustained. Id. The trial court has no equitable power to extend the protections of the expunction

statute beyond its stated provisions. Id. Although the expunction statute appears in the code of

criminal procedure, an expunction proceeding is civil in nature, and the petitioner carries the

burden of proving compliance with the statutory requirements. Id.




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       Jackson petitioned for expunction pursuant to article 55.01(a)(2)(A) of the code of

criminal procedure. To be entitled to expunction, Jackson was required to prove (1) she has been

released; (2) the charge, if any, has not resulted 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 of

the code of criminal procedure for the offense. TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2).

DPS challenges whether Jackson presented sufficient evidence that she did not serve a term of

community supervision.

       DPS is correct that the County Court entered an order placing Jackson on community

supervision, which Jackson served. Jackson, however, argues the community supervision “was

dissolved” when the County Court granted her Motion. We disagree because the County Court

lacked jurisdiction to grant the Motion.

       On May 17, 2011, the County Court sentenced Jackson to twelve months of community

supervision, which she asserts she served without any violations. Approximately fifteen months

after her term of community supervision ended, Jackson filed and the trial court granted the

Motion. Jackson acknowledged it was an out of time motion, but failed to provide any authority

explaining how the County Court could have retained jurisdiction over her case for fifteen

months after her community supervision ended. We have not found any case law showing a trial

court retains jurisdiction over a case such as Jackson’s for fifteen months after community

supervision is completed. Rather, the code of criminal procedure requires that upon expiration of

a term of community supervision, “if the judge has not proceeded to adjudication of guilt, the

judge shall dismiss the proceedings against the defendant and discharge him.” TEX. CODE CRIM.

PROC. ANN. art. 42.12 §5(c). This Court applying article 42.12, section 5(c), has concluded “a

trial court’s jurisdiction over a defendant’s criminal charge expires once the defendant

successfully completes the period of deferred community supervision.” Townsley v. State, No.

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05-11-00921-CR, 2012 WL 6634679, at *2 (Tex. App.—Dallas Dec. 21, 2012, no pet.) (mem.

op., not designated for publication) (citing TEX. CODE CRIM. PROC. ANN. art. 42.12 §5(c))

(concluding trial court retained jurisdiction to adjudicate guilt where motion filed before period

of community supervision ended). After Johnson’s term of community supervision ended, the

trial court lacked jurisdiction to do anything other than dismiss the proceedings and discharge

her. See TEX. CODE CRIM. PROC. ANN. art. 42.12 §5(c); In re Cherry, 258 S.W.3d 332, 334 (Tex.

App.—Austin 2008, orig. proceeding) (op. on reh’g) (stating absent motion to revoke and

issuance of capias, “a trial court has no jurisdiction to modify community supervision after the

supervision term has expired” and holding that trial court “lacked jurisdiction to do anything

further in this case other than to discharge Cherry from probation.”).

       The face of the record shows Jackson’s term of community supervision began on May

17, 2011, and ended twelve months later. However, she did not file her out-of-time Motion until

fifteen months after her community supervision ended. Considering the language of article

42.12, section 5(c) and cases stating a trial court’s jurisdiction ends when the defendant

successfully completes the period of deferred community supervision, we conclude the face of

the record shows the trial court lacked jurisdiction to grant Jackson’s Motion and its order

granting the Motion is void.

       Because the order granting the Motion is void, Jackson failed to prove, and cannot prove,

there was no court-ordered community supervision under article 42.12 of the code of criminal

procedure for the offense. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). Error is apparent

on the face of the record and we sustain DPS’s issue.




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                                         CONCLUSION

       Because we sustain DPS’s sole issue, we reverse the trial court’s order of expunction, and

render judgment denying Jackson’s petition for expunction.




                                                    /Craig Stoddart/
                                                    CRAIG STODDART
                                                    JUSTICE


140464F.P05




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                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

TEXAS DEPARTMENT OF PUBLIC                           On Appeal from the 354th District Court,
SAFETY, Appellant                                    Hunt County, Texas
                                                     Trial Court Cause No. 79,917.
No. 05-14-00464-CV         V.                        Opinion delivered by Justice Stoddart. Chief
                                                     Justice Wright and Justice Brown
ERICA KAY JACKSON, Appellee                          participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that: Erica Kay Jackson's petition for expunction is
DENIED..

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 4th day of June, 2015.




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