                            NUMBER 13-18-00226-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

                        IN RE DIANA POLANCO GARZA


                   On appeal from the 197th District Court
                        of Cameron County, Texas.



                       MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Longoria and Perkes
             Memorandum Opinion by Justice Longoria

      Appellant, the Texas Department of Public Safety (the Department), argues on

appeal that the trial court erred by granting appellee Diana Polanco Garza’s petition for

expunction. We affirm in part, and we reverse and render in part.

                                        I. BACKGROUND

      On August 27, 1994, Garza was arrested and later charged by indictment with

possession and delivery of a controlled substance (cocaine). See TEX. HEALTH & SAFETY

CODE ANN. §§ 481.102(3)(d), 481.112, 481.115(b) (West, Westlaw through 2017 1st
C.S.). Pursuant to a plea agreement, the delivery charge was dismissed, and Garza

pleaded guilty to the possession charge. The trial court sentenced Garza to seven years

of deferred adjudication community supervision.

       On September 18, 2017, Garza filed a petition to expunge all the records relating

to her 1994 arrest; Garza also sought to expunge all records relating to an arrest in 1993,

in which she was allegedly charged with theft. See TEX. PENAL CODE ANN. § 31.03 (West,

Westlaw through 2017 1st C.S.). On October 31, 2017, the Department filed an answer

denying that Garza was entitled to an expunction of the 1994 arrest records because she

served a term of community supervision for that arrest. The Department did not address

the 1993 arrest for theft. The trial court signed an order on November 8, 2017 granting

the expunction of the records of both the 1993 and 1994 arrests. The Department filed a

notice of restricted appeal on April 24, 2018.

                          II. STANDARD OF REVIEW AND APPLICABLE LAW

       Although expunction proceedings are typically reviewed under an abuse of

discretion standard, when the trial court’s ruling turns on a question of law, it is reviewed

de novo. See Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 678 (Tex. App.—Austin

2010, no pet.); see also Ex parte T.C., No. 12-13-00138-CV, 2014 WL 4104806, at *3

(Tex. App.—Tyler Aug. 20, 2014, no pet.) (mem. op.). Under a de novo standard, we

conduct an independent analysis of the record, giving no deference to the trial court’s

conclusions. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). Statutory

construction is also a question of law that requires de novo review. See McIntyre v.

Ramirez, 109 S.W.3d 741, 745 (Tex. 2003).




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       The expunction statute is intended to eradicate records of wrongful arrests by

allowing a person to remove all information regarding his or her arrest. See In re State

Bar, 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). Chapter 55 of the Texas Code

of Criminal Procedure sets forth the requirements and procedures governing the

expunction of criminal records. See generally TEX. CODE CRIM. PROC. ANN. arts. 55.01–

55.06 (West, Westlaw through 2017 1st C.S.). Under Article 55.01:

       (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 Chapter 42A for the
              offense, unless the offense is a Class C misdemeanor . . . .

Id. art. 55.01(a)(2) (emphasis added). “[F]or a petitioner to be entitled to expunction under

article 55.01, all charges arising from the arrest must meet that article’s requirements.”

S.J. v. State, 438 S.W.3d 838, 845 (Tex. App.—Fort Worth 2014, no pet.) (emphasis

added). In other words, “individual charges within an arrest” are not subject to expunction;

an arrest can only be expunged if every offense arising from that arrest meets the

requirements of article 55.01. Id.; see Ex parte Vega, 510 S.W.3d 544, 548 (Tex. App.—

Corpus Christi 2016, no pet.); Travis Cty. Dist. Atty. v. M.M., 354 S.W.3d 920, 927 (Tex.

App.—Austin 2011, no pet.); see also Ex parte M.R.L., No. 10–11–00275–CV, 2012 WL

763139, at *3 (Tex. App.—Waco Mar. 7, 2012, pet. denied) (mem. op.) (rejecting a party’s

argument that “the expunction statute should apply to each charge or offense for which a

person is arrested separately”).



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                                        III. DISCUSSION

       On appeal, the Department argues that the trial court improperly expunged the

records of Garza’s 1994 arrest. Specifically, the Department argues that: (1) the trial

court misinterpreted the expunction statute; and (2) Garza failed to present legally

sufficient evidence that she was entitled to expunction.

A. Restricted Appeal

       To prevail on a restricted appeal, a party must show: (1) it filed notice of appeal

within six months after the judgment was signed; (2) it was a party to the underlying action;

(3) it 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 on the face of the record. See TEX. R. APP. P. 26.1(c),

30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

       The Department filed its notice of restricted appeal on April 24, 2018, which was

less than six months after the order was signed on November 8, 2017. Thus, the

Department timely filed its notice of appeal. See TEX. R. APP. P. 26.1(c). The Department

was a party to the case and filed an answer, but it did not participate in the hearing that

resulted in the judgment complained of or file any post-judgment motions. Therefore, the

only remaining question is whether error is apparent on the face of the record. See

Alexander, 134 S.W.3d at 848.

B. The Expunction Statute

       In its original answer below, the Department failed to specifically address or

challenge the expunction of the records of Garza’s 1993 arrest.            The Department

specifically argued that Garza was “barred from expunging any records of [her] arrest on

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August 27, 1994,” but then the Department generally requested the petition for expunction

be denied. Likewise, the Department does not specifically mention the 1993 arrest on

appeal; rather, the Department’s main contention on appeal is that “Garza was not entitled

to an expunction of records of her August 27, 1994 arrest” although the Department’s

prayer for relief seems to request that we deny the entire petition for expunction.

Therefore, we affirm the trial court’s judgment concerning the expunction of records

related to the 1993 arrest. See TEX. R. CIV. P. 166a(c); Wells Fargo Bank, N.A. v. Murphy,

458 S.W.3d 912, 916 (Tex. 2015) (observing that it is improper for courts of appeals to

address issues not raised at trial or briefed on appeal); Garcia v. Robinson, 817 S.W.2d

59, 60 (Tex. 1991) (per curiam) (same).

      Concerning the 1994 arrest, it is undisputed that the delivery charge was dismissed

and resulted in no final conviction. However, it is also undisputed that Garza pled guilty

to the offense of possession of a controlled substance, which arose out of the same 1994

arrest. Furthermore, the parties agree that Garza was placed on seven years of deferred

adjudication community supervision as a result of her guilty plea. Garza seeks to expunge

the records of her possession charge, but the unit of expunction is the entire arrest, not

the individual possession charge. See Ex parte Vega, 510 S.W.3d at 551; S.J., 438

S.W.3d at 845.    Because Garza’s 1994 arrest resulted in court-ordered community

supervision, expunction is not available.       See TEX. CODE CRIM. PROC. ANN. art.

55.01(a)(2). The trial court’s error in expunging Garza’s arrest record is apparent on the

face of the record. See Alexander, 134 S.W.3d at 848. We sustain the Department’s first

issue. Because we agree with the Department on its first issue, we need not reach its




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subsequent issue regarding whether the expunction was supported by legally sufficient

evidence. See TEX. R. APP. P. 47.1.

                                                 IV. CONCLUSION

        We affirm the trial court’s order concerning the expunction of records of Garza’s

1993 arrest. We reverse the trial court’s order of expunction concerning Garza’s 1994

arrest, and render judgment denying Garza’s petition for expunction as it relates to the

1994 arrest. 1


                                                                   NORA L. LONGORIA
                                                                   Justice


Delivered and filed the
16th day of May, 2019.




        1 We note that the Texas Supreme Court's holding in Ex parte Elliot provides that the relief afforded
by our judgment applies equally to all law enforcement agencies named in the expunction order, whether
or not they participated in this appeal. 815 S.W.2d 251, 251–52 (Tex. 1991) (per curiam).

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