                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-17-00036-CV


EX PARTE J.J.




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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY
                     TRIAL COURT NO. CV16-00300

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                         MEMORANDUM OPINION 1

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      The Texas Department of Public Safety brings this restricted appeal from

an order granting J.J.’s petition to expunge certain records related to his June 24,

2006 arrest. In four issues, DPS argues that the trial court erred by expunging

J.J.’s arrest record because (1) he was convicted of an offense arising from that

arrest, (2) the evidence was legally insufficient to support the expunction order,

(3) the trial court did not hold a hearing, and (4) even if it had held a hearing, no

      1
       See Tex. R. App. P. 47.4.
reporter’s record was prepared. Because, based on DPS’s second issue, J.J.

failed to prove that he is entitled to have his arrest record expunged, error is

apparent on the face of the record. We will therefore reverse and render

judgment denying J.J.’s expunction petition.

                                 I. Background

      J.J. was arrested on June 24, 2006, and subsequently charged with both

aggravated assault with a deadly weapon and unlawfully carrying a weapon on a

“premises licensed or issued a state permit by this state for the sale of alcoholic

beverages.” 2 J.J. pleaded guilty to the latter offense pursuant to a plea bargain,

and in accordance with that plea, the trial court found him guilty, sentenced him

to five years’ confinement, suspended the sentence, and placed him on

community supervision. The aggravated-assault charge was dismissed.

      On May 24, 2016, J.J. filed a verified expunction petition, in which he

sought expunction of all records and files related to the aggravated-assault

charge, asserting that he was entitled to expunction under article 55.01(a)(2)

because the charge had been dismissed, he had been released, the charge did

not result in a final conviction or court-ordered community supervision, and the

three-year waiting period and three-year statute of limitation for felonies had

      2
       See Act of May 20, 2005, 79th Leg., R.S., ch. 788, § 3, 2005 Tex. Gen.
Laws 2709, 2710 (amended 2009) (current version at Tex. Penal Code Ann.
§ 22.02(a)(2) (West 2011)); Act of May 31, 1997, 75th Leg., R.S., ch. 1221, § 1,
1997 Tex. Gen. Laws 4684, 4684–85 (amended 1997, 2007, 2011, 2015, 2017)
(current version at Tex. Penal Code Ann. § 46.02(a), (c) (West Supp. 2017)).
Later amendments to these statutes do not affect this case.


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expired. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (West 2018). The trial

court set the expunction petition for a hearing on August 3, 2016.

      DPS answered, generally denying J.J.’s allegations and specifically

asserting that J.J. was not entitled to expunction of any records relating to his

June 24, 2006 arrest because the trial court convicted J.J. of the unlawfully-

carrying-a-weapon charge that also arose from that arrest. DPS attached to its

answer the indictments for both charges and the conviction judgment.

      Following a setting at which DPS did not appear, the trial court granted

J.J.’s petition and signed an expunction order on August 3, 2016. 3 DPS timely

filed a notice of restricted appeal on February 3, 2017. See Tex. R. App. P.

26.1(c).

                                     II. Expunction

      In its second issue, which is dispositive, DPS asserts that the trial court

erred by granting J.J.’s expunction petition because he did not present any

evidence proving that he was entitled to expunction under article 55.01(a)(2),

rendering the evidence legally insufficient to support the trial court’s order. 4 See

Tex. Code Crim. Proc. Ann. art. 55.01(a)(2).


      3
        According to the expunction order, the trial court did not consider any
evidence in granting J.J.’s expunction petition. The order states that the trial court
granted the petition after considering the petition. We have no record of any
hearing; the court reporter notified us that she “was the reporter when the above-
styled and -numbered cause was set on the docket to be heard, August 3, 2016,”
but “that there was nothing put on the record” that day.
      4
       J.J. has not filed a brief.


                                           3
A. Restricted-appeal requirements and standard of review

      To prevail in its restricted appeal, DPS must show that (1) it filed its notice

of appeal within six months after the complained-of judgment or order was

signed; (2) DPS was a party to the underlying suit but did not participate in the

hearing that resulted in the complained-of judgment; (3) DPS did not timely file a

postjudgment motion, request findings of fact and conclusions of law, or file a

notice of appeal within the time permitted by appellate-procedure rule 26.1(a);

and (4) the complained-of error is apparent from the face of the record. See Tex.

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

255 (Tex. 2009); Mandel v. Lewisville ISD, 445 S.W.3d 469, 474 (Tex. App.—

Fort Worth 2014, pet. denied); see also Etheredge v. Hidden Valley Airpark

Ass’n, 169 S.W.3d 378, 381 (Tex. App.—Fort Worth 2005, pet. denied) (op. on

reh’g) (stating that restricted-appeal requirements should be “liberally construed

in favor of the right to appeal”). For restricted-appeal purposes, the face of the

record consists of all papers on file in the appeal, including the clerk’s record and

the reporter’s record. Chen v. Johnson, No. 02-12-00428-CV, 2013 WL 2339233,

at *1 (Tex. App.—Fort Worth May 30, 2013, no pet.) (mem. op.) (citing Norman

Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)).

      We review a trial court’s order granting or denying an expunction petition

for an abuse of discretion. Ex parte Cephus, 410 S.W.3d 416, 418 (Tex. App.—

Houston [14th Dist.] 2013, no pet.); Heine v. Tex. Dep’t of Pub. Safety,

92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). A trial court abuses


                                         4
its discretion if it fails to analyze or apply the law correctly. Iliff v. Iliff, 339 S.W.3d

74, 78 (Tex. 2011). If an expunction turns on a legal question, we review the

ruling de novo because a trial court has no discretion in determining what the law

is or in applying the law to the facts. Tex. Dep’t of Pub. Safety v. Dicken,

415 S.W.3d 476, 478 (Tex. App.—San Antonio 2013, no pet.).

       In determining whether there is legally sufficient evidence to support the

finding under review, we must consider evidence favorable to the finding if a

reasonable factfinder could and must disregard contrary evidence unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas,

228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807,

827 (Tex. 2005). We may sustain a legal-sufficiency challenge only when (1) the

record discloses a complete absence of evidence of a vital fact, (2) the court is

barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no

more than a mere scintilla, or (4) the evidence establishes conclusively the

opposite of a vital fact. Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex.

2014) (op. on reh’g); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328,

334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999).

B. Governing law

       Expunction is not a constitutional or common-law right but, rather, a

statutory privilege. Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex.

App.—Austin 2010, no pet.) (op. on reh’g). The Texas Code of Criminal


                                             5
Procedure governs a petitioner’s entitlement to expunction. See Tex. Code Crim.

Proc. Ann. art. 55.01. The petitioner in an expunction proceeding has the burden

of proving compliance with all statutory requirements and is entitled to expunction

only when he has met all those conditions. McCarroll v. Tex. Dep’t of Pub.

Safety, 86 S.W.3d 376, 378 (Tex. App.—Fort Worth 2002, no pet.).

      Article 55.01 states, in relevant part, as follows:

      (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, unless the offense is a Class C misdemeanor, provided
      that:

                   (A) regardless of whether any statute of limitations
            exists for the offense and whether any limitations period for
            the offense has expired, an indictment or information charging
            the person with the commission of a misdemeanor offense
            based on the person’s arrest or charging the person with the
            commission of any felony offense arising out of the same
            transaction for which the person was arrested:

                         (i) has not been presented against the person at
                   any time following the arrest, and:

                                (a) at least 180 days have elapsed from the
                          date of arrest if the arrest for which the
                          expunction was sought was for an offense
                          punishable as a Class C misdemeanor and if
                          there was no felony charge arising out of the
                          same transaction for which the person was
                          arrested;




                                          6
                               (b) at least one year has elapsed from the
                         date of arrest if the arrest for which the
                         expunction was sought was for an offense
                         punishable as a Class B or A misdemeanor and if
                         there was no felony charge arising out of the
                         same transaction for which the person was
                         arrested;

                               (c) at least three years have elapsed from
                         the date of arrest if the arrest for which the
                         expunction was sought was for an offense
                         punishable as a felony or if there was a felony
                         charge arising out of the same transaction for
                         which the person was arrested; or

                                 (d) the attorney representing the state
                         certifies that the applicable arrest records and
                         files are not needed for use in any criminal
                         investigation or prosecution, including an
                         investigation or prosecution of another person; or

                          (ii) if presented at any time following the arrest,
                   was dismissed or quashed, and the court finds that the
                   indictment or information was dismissed or quashed
                   because the person completed a pretrial intervention
                   program authorized under Section 76.011, Government
                   Code, because the presentment had been made
                   because of mistake, false information, or other similar
                   reason indicating absence of probable cause at the time
                   of the dismissal to believe the person committed the
                   offense, or because the indictment or information was
                   void; or

                    (B) prosecution of the person for the offense for which
            the person was arrested is no longer possible because the
            limitations period has expired.

Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). 5


      5
       Effective January 1, 2017, and September 1, 2017, the legislature
amended article 55.01(a) in 2015 and 2017. See Act of May 24, 2017, 85th Leg.,
R.S., ch. 693, § 1, art. 55.01(a), 2017 Tex. Sess. Law Serv. 3083, 3083–
84 (West); Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 2.23, art. 55.01(a),

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C. Analysis

      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 expunction order; 6 and did not file any postjudgment

motions, request findings of fact and conclusions of law, or file a notice of appeal

within the time permitted by rule 26.1(a). See Tex. R. App. P. 26.1(a), (c), 30;

Lejeune, 297 S.W.3d at 255. We must therefore determine whether error is

apparent on the face of the record. See Tex. R. App. P. 30; Lejeune, 297 S.W.3d

at 255.

      In his verified expunction petition, J.J. asserted that he was entitled to

expunction under article 55.01(a)(2) because the aggravated-assault charge was

dismissed, he had been released, the charge did not result in a final conviction or

court-ordered community supervision, and the three-year waiting period and

2015 Tex. Sess. Law Serv. 2320, 2372–73 (West). Because J.J. filed his
expunction petition before these amendments were effective, our citations to
article 55.01(a)’s language are to the version effective September 1, 2011. See
Act of May 27, 2011, 82d Leg., R.S., ch. 690, § 1, art. 55.01, 2011 Tex. Sess.
Law Serv. 1651, 1651–52 (West) and Act of May 27, 2011, 82d Leg., R.S., ch.
894, § 1, art. 55.01, 2011 Tex. Sess. Law Serv. 2274, 2274–75 (West) (amended
2015 and 2017) (current version at Tex. Code Crim. Proc. Ann. art. 55.01). We
note, however, that the 2015 and 2017 amendments do not affect the substance
of the language relevant to J.J.’s right to expunction.
      6
        “Numerous appellate courts, including this court, have impliedly or
explicitly held that an answer from DPS does not constitute participation in the
hearing that resulted in the expunction order and thus does not bar DPS from
pursuing a restricted appeal.” Ex parte K.K., No. 02-17-00158-CV,
2018 WL 1324696, at *2 n.6 (Tex. App.—Fort Worth Mar. 15, 2018, no pet.)
(mem. op.) (citing cases).


                                         8
three-year statute of limitation for felonies had expired. DPS’s general denial in

response sufficed to put these matters at issue. See Tex. R. Civ. P. 92; State v.

Herron, 53 S.W.3d 843, 847 (Tex. App.—Fort Worth 2001, no pet.) (“In a civil

case, a general denial puts a plaintiff on proof of every fact essential to his case.

This is true even in expunction cases. A verified pleading is generally not

evidence.” (citations omitted)). “Once the matter is in issue and the petitioner’s

allegations are controverted, the petitioner must present evidence to substantiate

his pleadings in order to prevail.” Tex. Dep’t of Pub. Safety v. Borhani, No. 03-08-

00142-CV, 2008 WL 4482676, at *4 (Tex. App.—Austin Oct. 3, 2008, no pet.)

(mem. op.) (citing Tex. Dep’t of Pub. Safety v. Claudio, 133 S.W.3d 630, 632–

33 (Tex. App.—Corpus Christi 2002, no pet.) (op. on reh’g)). The trial court

cannot take the petitioner’s allegations to be true without testimony, other proof

(such as affidavits), or admissions by the other party. Id. (citing Claudio,

133 S.W.3d at 632–33). “The allegations alone in a verified petition, after being

put in issue by a general denial, do not constitute proof of those allegations.” Id.

      To be entitled to expunction under article 55.01(a)(2), J.J. had to prove that

he satisfied all the article’s requirements. See McCarroll, 86 S.W.3d at 378. Once

DPS’s answer put J.J.’s right to expunction under article 55.01(a)(2) at issue, J.J.

had to present evidence proving his right to expunction. See Bohrani,

2008 WL 4482676, at *4; Claudio, 133 S.W.3d at 632–33.

      The face of the record reflects that J.J. offered no evidence to support his

expunction petition. As noted, the expunction order reflects that the trial court did


                                          9
not consider any evidence in granting J.J.’s petition. The order states that the trial

court expunged records and files related to J.J.’s aggravated-assault charge

based only on his petition. And according to the court reporter, nothing was put

on the record the day the hearing was set. We therefore conclude that, on this

record, the evidence is legally insufficient to support the trial court’s order

granting J.J.’s expunction petition. Because error appears on the face of this

record, we sustain DPS’s second issue. And because this issue is dispositive, we

need not address its remaining issues. See Tex. R. App. P. 47.1.

                                  III. Conclusion

      Having sustained DPS’s second issue, which is dispositive of this appeal,

we reverse the trial court’s expunction order and render judgment denying J.J.’s

expunction petition. See Tex. R. App. P. 43.2(c); Tex. Dep’t of Pub. Safety v.

Sorrell, No. 03-06-00518-CV, 2008 WL 5264917, at *2 & n.1 (Tex. App.—Austin

Dec. 19, 2008, no pet.) (mem. op.); Herron, 53 S.W.3d at 848. All documents that

were turned over to the trial court or to J.J. by law-enforcement agencies in

compliance with the expunction order must be returned to the submitting

agencies. See K.K., 2018 WL 1324696, at *4; Ex parte B.M., No. 02-14-00336-

CV, 2015 WL 3421979, at *2 (Tex. App.—Fort Worth May 28, 2015, no pet.)

(mem. op.).




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                                         /s/ Elizabeth Kerr
                                         ELIZABETH KERR
                                         JUSTICE

PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

DELIVERED: July 12, 2018




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