                             NUMBER 13-17-00636-CV

                                COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF
PUBLIC SAFETY,                                                                Appellant,

                                            v.

CYNTHIA D. CLARK,                                                              Appellee.


                    On appeal from the 329th District Court
                         of Wharton County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Rodriguez and Benavides
             Memorandum Opinion by Justice Benavides

       By four issues, which we address as three, appellant, the Texas Department of

Public Safety (the Department), appeals an order expunging all files and records relating

to appellee Cynthia Clark’s offense of exploitation of a child. See TEX. PENAL CODE ANN.

§ 32.53 (West, Westlaw through 2017 1st C.S.). The Department argues that: (1) the trial

court misinterpreted the expunction statute in granting the expunction; (2) Clark failed to

present legally sufficient evidence showing she was entitled to an expunction; (3) the trial
court erred because it did not hold a hearing or in the alternative, erred by not having the

hearing transcribed.         We reverse and render judgment denying Clark’s petition for

expunction.

                                            I.       BACKGROUND

        Clark was originally arrested and charged with exploitation of a child, a third-degree

felony, and theft of property between fifty dollars and five hundred dollars, a Class B

misdemeanor. See id. §§ 32.53, 31.03 (West, Westlaw through 2017 1st C.S.). In Clark’s

petition for expunction, filed on October 11, 2016, she stated that the exploitation of a child

charge was “dismissed or quashed on September 14, 2012.” See TEX. CODE CRIM. PROC.

ANN. art. 55.01 (West, Westlaw through 2017 1st C.S.) (expunction statute). However, the

Department pointed out in its answer, filed on December 14, 2016, that Clark pleaded

guilty pursuant to a plea bargain on the theft charge and was sentenced to twelve months

deferred adjudication on October 17, 2012.                       Both charges arose out of the same

transaction and arrest.

        The clerk’s record contains a letter from Clark to the Department confirming a

hearing on the petition for expunction on May 18, 2017. However, no reporter’s record of

the proceeding was created.1 The Department did not participate in the hearing, file any

post-judgment motions, or request any findings of fact or conclusions of law. See Pike-

Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam) (requirements for restricted



        1   The official court reporter for the 329th Judicial District Court filed an affidavit with this Court in
which she states that no reporter’s record was made of the hearing on Clark’s petition for expunction, and
therefore, we are unable to conclusively verify that the Department did not participate in the hearing.
However, the Department acknowledges in its appellate brief that it did not participate in the hearing, and
we take the stipulation as true since this is undisputed by Clark. See Pike-Grant v. Grant, 447 S.W.3d 884,
886 (Tex. 2014) (per curiam) (“For over half a century, we have required courts to liberally construe the non-
participation requirement for restricted appeals in favor of the right to appeal.”). Furthermore, we note that
the trial court’s docket entries on May 18, 2017, just state “Order of Expunction.”

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appeal). The trial court granted Clark’s petition on May 18, 2017, finding that Clark “is

entitled to expunction as provided by Article 55.01(a)(2)(A), Texas Code of Criminal

Procedure.” The Department filed its notice of restricted appeal.

                                 II.     RESTRICTED APPEAL

       A.     Standard of Review

       Restricted appeals are governed by rule 30 of the Texas Rules of Appellate

Procedure. See TEX. R. APP. P. 30. When a party does not participate in person or through

counsel in a hearing that results in a judgment, that party may be eligible for a restricted

appeal. See id. When addressing a restricted appeal, our review is limited to the face of

the record. Ex Parte Vega, 510 S.W.3d 544, 547 (Tex. App.—Corpus Christi 2016, no

pet.). For these purposes, the “face of the record” consists of all papers that were before

the trial court at the time it rendered judgment. Id.

       To sustain a restricted appeal, the filing party must prove: (1) the party filed notice

of the restricted appeal within six months after the judgment was signed; (2) the party was

a party to the underlying lawsuit; (3) the party 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 from the face

of the record. Pike-Grant, 447 S.W.3d at 886; Alexander v. Lynda’s Boutique, 134 S.W.3d

845, 848 (Tex. 2004).

       B.     Applicable Law and Discussion




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       To be entitled to a restricted appeal, the Department must meet the criteria related

to a restricted appeal. We agree the Department filed a notice of restricted appeal within

six months of the judgment and that it was a party to the underlying lawsuit, thereby

meeting the first two prongs required. The third prong required the Department to show it

did not participate in the hearing, file any post-judgment motions, or request findings from

the trial court. See Pike-Grant, 447 S.W.3d at 886. We are required to liberally construe

the non-participation requirement for restricted appeals in favor of the right to appeal. Id.;

Stubbs v. Stubbs, 685 S.W.2d 643, 644–45 (Tex. 1985). The third prong is also met

despite the Department filing an answer to Clark’s petition—the Department did not

participate in any hearing for the expunction order, file any post-judgment motion, or

request findings of fact or conclusions of law. See, e.g., Vega, 510 S.W.3d at 547–48

(“We conclude the Department [met the third requirement] because even though it filed an

answer in response to [the] petition, it did not participate in the hearing on [the] petition

that resulted in the expunction order.”).

       Having concluded the Department meets the first three requirements, we now turn

to whether error is apparent on the face of the record.

                        III.   CLARK NOT ENTITLED TO EXPUNCTION

       By its first two issues, the Department argues that Clark was not entitled to an

expunction. It alleges that Clark served a term of community supervision from a charge

arising out of her arrest.

       A.     Standard of Review




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

Id. at 548. To the extent the court’s ruling on an expunction petition turns on a question of

law, we review that ruling de novo. Id.

       Because this is a restricted appeal, our review is limited to the face of the record.

Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam). The requirement that

error be apparent from the face of the record means that “error that is merely inferred will

not suffice.” Ginn, 282 S.W.3d at 431. With this limitation, our scope of review is otherwise

the same as in an ordinary appeal. Vega, 510 S.W.3d at 548.

       B.     Applicable Law

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

commission of a criminal offense and released and, who meets certain other conditions,

to have all records and files related to that arrest removed from the government’s records.

See TEX. CODE CRIM. PROC. ANN. art. 55.01; Vega, 510 S.W.3d at 548. Although the

statute is codified in the Texas Code of Criminal Procedure, an expunction proceeding is

civil in nature. Vega, 510 S.W.3d at 548. As in other civil proceedings, it is the petitioner’s

burden to show that all the statutory conditions have been met.            Id.   And because

expunction is not a right but a statutory privilege, each of the statutory conditions for

expunction are mandatory and exclusive. Id. It is an abuse of discretion for the trial court

to order expunction when the statutory conditions have not been met because the court

possesses “no equitable power to permit expunction where it is not allowed” by statute.

Id.




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       The Department’s issue requires us to interpret the expunction statute. Statutory

interpretation is a question of law that we review de novo. City of Rockwall v. Hughes,

246 S.W.3d 621, 625 (Tex. 2008). Our goal in interpreting a statute is to give effect to the

legislature's intent as expressed by the language in the statute. Id. We assume that the

statute's words bear their “plain and common meaning” unless the Legislature provided a

definition or another meaning that is apparent from the context. Id. at 625–26. We

consider the statute as a whole, reading each word and phrase in context, and attempt to

give effect to every part. Mid–Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621

(Tex. 2007). If the meaning of statutory language is clear and unambiguous, we may not

resort to rules of construction or extrinsic aids. City of Rockwall, 246 S.W.3d at 626.

However, we may also consider the object the Legislature sought to attain by enacting the

statute. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 87 (Tex. 2006) (citing TEX. GOV'T

CODE ANN. § 311.023(1) (West, Westlaw through 2017 1st C.S.)).

       Article 55.01(a) of the expunction statute governs a petitioner’s right to expunction

and provides, in relevant part, that:

       (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



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                            charging the person with the commission of a
                            misdemeanor offense . . . .

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

       C.     Discussion

       To establish her right to expunction under the statute, Clark must prove that: (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; (4) there was no court-ordered community

supervision; and (5) other statutory requirements are not at issue here. See TEX. CODE

CRIM. PROC. ANN. art. 55.01(a)(2)(A); see also Tex. Dep’t of Pub. Safety v. G.B.E., 459

S.W.3d 622, 626 (Tex. App.—Austin 2014, pet. ref’d).

       Clark’s petition requested expunction of the exploitation of a child charge, but did

not mention the theft that arose from the same transaction. However, as the Department

points out, the separate offense of theft arose out of the same arrest. The statute makes

no provision for expunging only records related to a particular charge that resulted from

an arrest. Vega, 510 S.W.3d at 550; see Ex parte Davila, No. 13-15-00202-CV, 2016 WL

872997, at *4 (Tex. App.—Corpus Christi 2016, no pet.) (mem. op.). “If the Legislature

wished to permit persons to expunge records related to a particular charge resulting from

an arrest without expunging all records of the arrest itself, we presume that it would have

included language with that meaning in the statute.” Vega, 510 S.W.3d at 550. Section

(a)(2) of the expunction statute treats an arrest as the unit of expunction and provides relief

relating to arrests rather than charges.” See id. at 551.

       Clark cannot satisfy the fourth requirement she had to prove. Clark pleaded guilty

to the theft charge and served a term of deferred adjudication probation, making her




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ineligible for an expunction under the statue.               See TEX. CODE CRIM. PROC. ANN. art.

55.01(a)(2). We sustain the Department’s first two issues.2

                                          IV.     CONCLUSION

        We reverse the granting of Clark’s expunction and render judgment denying Clark’s

petition for expunction.

                                                                          GINA M. BENAVIDES,
                                                                          Justice



Delivered and filed the
2nd day of August, 2018.




        2  Since these issues are dispositive, we need not address the Department’s additional issues raised
in this appeal. See TEX. R. APP. P. 47.1.

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