                                        NO. 12-12-00072-CV

                          IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

TEXAS DEPARTMENT OF                                      §             APPEAL FROM THE THIRD
PUBLIC SAFETY,
APPELLANT

V.                                                       §             JUDICIAL DISTRICT COURT

CHAREE CRAWFORD,
APPELLEE                                                §            ANDERSON COUNTY, TEXAS

                                        MEMORANDUM OPINION
        The Texas Department of Public Safety (DPS) appeals the trial court’s order granting an
expunction for Charee Crawford’s theft arrest for which she received deferred adjudication
community supervision. In one issue, DPS contends there is legally insufficient evidence to
support the trial court’s order. We reverse and render.


                                                 BACKGROUND
        On January 22, 1993, Charee Crawford was placed on deferred adjudication community
supervision for a period of five years for the felony offense of theft. On June 10, 2011, Crawford
filed her petition for expunction. DPS filed a general denial, but did not appear at the hearing. 1
The trial court granted the expunction and signed the order on September 1, 2011. DPS filed a
restricted appeal with this court.




        1
         At the hearing, the district attorney noted that amendments to Article 55.01 were to take effect on
September 1, 2011. As a result, the trial court signed the order of expunction on September 1, 2011. The legislative
amendments, however, did not make Crawford eligible for an expunction once they became effective. See TEX.
CODE CRIM. PROC. ANN. art. 55.01(a)(2) (West Supp. 2012).
                                           EXPUNCTION
       In its sole issue, DPS argues that Crawford was not entitled to an expunction of records
relating to her theft arrest because she received deferred adjudication community supervision as
a result of that arrest. Therefore, DPS contends, the evidence is legally insufficient to support
the trial court’s expunction order.
Standard of Review
       A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal
within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3)
it did not participate in the hearing that resulted in the judgment complained of and did not
timely file any postjudgment motions or requests for findings of fact and conclusions of law, and
(4) error is apparent on 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). For purposes of a restricted appeal, the
record consists of all papers on file in the appeal, including the reporter’s record. Norman
Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Tex. Dep’t of Pub. Safety v.
Smith, No. 12-12-00155-CV, 2012 WL 6674424, at *1 (Tex. App.—Tyler Dec. 20, 2012, no
pet.) (mem. op.). The absence of legally sufficient evidence is reviewable in a restricted appeal.
Norman Commc’ns, 955 S.W.2d at 270; Smith, 2012 WL 6674424, at *1.
Applicable Law
       An expunction proceeding is civil rather than criminal in nature, and the right to an
expunction is a statutory privilege. See Ex parte Green, 373 S.W.3d 111, 113 (Tex. App.—San
Antonio 2012, no pet.). A person is not entitled to an expunction if she was placed on “court
ordered community supervision” under Article 42.12 of the Texas Code of Criminal Procedure,
which includes deferred adjudication community supervision. See TEX. CODE CRIM. PROC. ANN.
art. 55.01(a)(2) (West Supp. 2012); see also Smith, 2012 WL 6674424, at *2. The trial court
must strictly comply with the statutory requirements, and has no equitable power to expand the
remedy’s availability beyond what the legislature has provided. See Harris Cnty. Dist. Attorney
v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no pet.); Smith, 2012
WL 6674424, at *1. Conversely, if the petitioner demonstrates that she has satisfied each of the
requirements under Article 55.01(a), the trial court has a mandatory duty to grant the expunction
petition. See Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 648 (Tex. App.—Austin 2002,
pet. denied); Smith, 2012 WL 6674424, at *1.



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       The purpose of Article 55.01 is to allow wrongfully arrested individuals to clear their
record, and conversely, to not allow expunction of arrest and court records relating to an arrest
for an offense to which a person pleads guilty and receives community supervision pursuant to a
guilty plea. See Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.
1991); Smith, 2012 WL 6674424, at *2.
       Assertions of fact in the party’s live pleadings, not pleaded in the alternative, are regarded
as formal judicial admissions. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562,
568 (Tex. 2001). If the admissions are clear, deliberate, and unequivocal, they are conclusive
upon the party making them. Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936
S.W.2d 275, 278 (Tex. 1996); Smith, 2012 WL 6674424, at *2.
       Additionally, a party’s testimonial declarations can be treated as conclusive judicial
admissions if (1) the declaration was made during a judicial proceeding, (2) the declaration is
contrary to a fact that is essential to the testifying person’s claim or defense, (3) the declaration
was deliberate, clear, and unequivocal, (4) allowing the declaration to have conclusive effect
would be consistent with the public policy of the claim or defense, and (5) the declaration is not
destructive to the other party’s claim. See Mendoza v. Fid. & Guar. Ins. Underwriters, Inc.,
606 S.W.2d 692, 694 (Tex. 1980); Smith, 2012 WL 6674424, at *2.
Discussion
       Crawford alleged in her petition that she was “placed on [d]eferred [a]djudication for 5
years” for the theft arrest. At the hearing, the trial court stated to Crawford, “You were on
probation. Did they release you from probation?” Crawford responded, “Yes, sir.” Crawford
also alleged in her petition that she was “acquitted in this cause on September 1, 1998.” But
Petitioner’s Exhibit 1 shows that on September 1, 1998, the court granted the State’s motion to
dismiss its motion to proceed with an adjudication of guilt, not that Crawford was “acquitted” of
the offense. In viewing Crawford’s petition together with Exhibit 1, we conclude that Crawford
made clear, deliberate, and unequivocal assertions that she was placed on deferred adjudication
for the theft arrest. These statements, which were made in her live pleadings and during a
judicial proceeding, were contrary to her claim that she was entitled to an expunction. To hold
that these statements conclusively establish Crawford was placed on deferred adjudication
community supervision is consistent with the public policy of expunctions, which is, as we have




                                                 3
stated, to prevent those who have pleaded guilty and received deferred adjudication community
supervision from expunging the offense. See J.T.S., 807 S.W.2d at 574.
         Crawford was required to show her entitlement to an expunction by legally sufficient
evidence, but the record contains a complete absence of any evidence establishing that right. To
the contrary, Crawford’s admissions conclusively establish that she served a term of deferred
adjudication for the offense she sought to expunge.                 Thus, Crawford failed to meet the
requirements of Article 55.01(a)(2), and the evidence is legally insufficient to support the trial
court’s finding. See In re S.D., 349 S.W.3d 76, 79 (Tex. App.—El Paso 2010, no pet.) (stating
that although expunction is normally subject to abuse of discretion standard of review, legally
sufficient standard of review is appropriate when appellant argues that there is lack of evidence
to support an order of expunction). As a matter of law, Crawford was not entitled to relief.
Accordingly, the trial court erred in ordering an expunction of her theft arrest.
         The record shows that DPS filed its notice of restricted appeal within six months of the
expunction order, was a party to the underlying lawsuit, did not participate in the hearing that
resulted in the trial court’s order, and did not file any postjudgment motions or requests for
findings of fact and conclusions of law. Also, we have concluded that error is apparent on the
face of the record. Therefore, DPS is entitled to prevail in this restricted appeal. We sustain
DPS’s sole issue.


                                                    DISPOSITION
         We reverse the trial court’s judgment granting the expunction of Crawford’s theft arrest
and render judgment in favor of DPS. Furthermore, pursuant to DPS’s prayer for relief, we
order all documents that were turned over to the trial court or to Crawford be returned to the
submitting agencies. See Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam)
(reversal of expunction applies to all respondents in trial court, even if they did not participate in
appeal).
                                                                SAM GRIFFITH
                                                                   Justice

Opinion delivered February 28, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

                                                    (PUBLISH)



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                                 COURT OF APPEALS
            TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                           JUDGMENT

                                          FEBRUARY 28, 2013


                                        NO. 12-12-00072-CV

                  TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                   Appellant
                                      V.
                            CHAREE CRAWFORD,
                                   Appellee
_____________________________________________________________________________
                       Appeal from the 3rd Judicial District Court
                  of Anderson County, Texas. (Tr.Ct.No. XXX-XX-XXXX)
_____________________________________________________________________________

                        THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, it is the opinion of this court that there was error in the
judgment as entered by the trial court below and that the same should be reversed and judgment
rendered.
                        It is therefore ORDERED, ADJUDGED and DECREED by this court that
the judgment of the trial court in favor of Appellee, CHAREE CRAWFORD, be, and the same
is, hereby reversed and judgment is rendered in favor of Appellant, TEXAS DEPARTMENT
OF PUBLIC SAFETY. All costs of this appeal are adjudged against the Appellee, CHAREE
CRAWFORD, for which let execution issue; and that this decision be certified to the court
below for observance.
                        Sam Griffith, Justice.
                        Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

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