                              NUMBER 13-07-00552-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                              Appellant,

                                              v.

RAUL GUERRA MORALES,                                                            Appellee.


                    On appeal from the 404th District Court
                         of Cameron County, Texas.


                           MEMORANDUM OPINION

                 Before Justices Yañez, Rodriguez, and Vela
                 Memorandum Opinion by Justice Rodriguez

       In this restricted appeal, appellant, Texas Department of Public Safety (DPS), asks

this Court to reverse the trial court's order granting a petition for the expunction of records

filed by appellee, Raul Guerra Morales. By one issue, the DPS contends Morales is not

entitled to an expunction of records. We reverse and render.
                                                I. Background1

         Morales was arrested for aggravated assault and pleaded guilty to the class A

misdemeanor charge of assault. Morales petitioned the trial court to expunge the record

of his arrest. In his petition, Morales stated that the trial court sentenced him "to twelve

months probated for twelve months," that he complied with all the conditions of probation,

and that he was discharged from probation. The Cameron County Criminal District

Attorney and DPS each filed separate answers to Morales's petition, complaining that

Morales was not entitled to expunction of his arrest record because he served probation

in the case. At the expunction hearing, Morales testified that he pleaded guilty to a class

A misdemeanor and served probation as a consequence of that arrest. He further testified

that he had met all the requirements of his probation. As evidence that Morales served

probation, the District Attorney offered State's Exhibit 1, a printout from the District

Attorney's office showing that Morales pleaded guilty to assault and was sentenced to

twelve months in jail, which was probated. After taking the matter under advisement, the

trial court granted Morales's petition.

                                            II. Restricted Appeal

         To attack a trial court's judgment by restricted appeal, the DPS must show that (1)

a notice of appeal was filed within six months of the date the complained-of judgment was

signed, (2) appellant was a party to the suit who did not participate in the hearing that

resulted in the judgment or order, (3) appellant did not timely file a post-judgment motion,


         1
           The statem ent of facts set out in appellant's brief are to be accepted as true if supported by the
record unless contradicted by another party. T EX . R. A PP . P. 38.1(f). In this case, Morales did not file a brief.
W e will therefore accept as true the fact statem ent filed by Texas Departm ent of Public Safety (DPS), if
supported by record references.

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or request findings of fact and conclusions of law, or file a notice of appeal within the time

permitted under rule 26.1(a), and (4) the complained-of error is apparent from the face of

the record. TEX . R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.

2004); Tex. Dep't of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.–Corpus

Christi, 2007, no pet.); see TEX . R. APP. P. 26.1(c).

           DPS filed its notice of appeal within six months of the date that the trial court signed

the order.2 DPS is a proper party to this suit because DPS was notified of the hearing,

DPS filed an answer, and Morales listed DPS as an entity potentially having records that

he sought expunged. See Tex. Dep't of Pub. Safety v. Arbelo, 170 S.W.3d 734, 735 (Tex.

App.–Amarillo 2005, no pet.) (providing that listing the entity as potentially having records

sought expunged "permits one to reasonably deem the DPS as a party to the action").

DPS did not participate in the hearing expunging Morales's record.3 In its notice of

restricted appeal, DPS states that it did not file any post-judgment motions, request

findings of fact and conclusions of law, or file a notice of appeal, and the record does not

show otherwise. Finally, as addressed below, the complained-of error is apparent from the

face of the record. See Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270

(Tex.1997) (per curiam) (setting out that the face of the record, for purposes of restricted

appeals, consists of all the papers on file in the appeal). Therefore, DPS satisfied each

element for obtaining relief through this restricted appeal.




           2
               The trial court signed the order on March 12, 2007, and DPS filed its notice of appeal on Septem ber
7, 2007.

         3
           Although DPS filed an answer to Morales's petition for expunction of records, filing an answer is not
participation for purposes of a restricted appeal. Stubbs v. Stubbs, 685 S.W .2d 643, 645 (Tex. 1985).

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                                III. Expunction of Records

       By one issue, DPS contends that the trial court abused its discretion by entering an

order expunging Morales's arrest. DPS argues that Morales was not entitled to relief under

article 55.01(2)(B) of the Texas Code of Criminal Procedure because he was placed on

probation as a result of an arrest. See TEX . CODE CRIM . PROC . ANN . art. 55.01 (Vernon

2006). We agree.

                       A. Standard of Review and Applicable Law

       A trial court's ruling on an expunction is reviewed under an abuse of discretion

standard. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.–Austin 2002,

pet. denied). A trial court abuses its discretion when it acts without reference to guiding

rules and principles or if its actions are arbitrary and unreasonable. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

       To be entitled to an expunction, the petitioner, Morales in this case, has the burden

of proving that all the statutory requirements have been satisfied. "The trial court must

strictly comply with the statutory procedures for expunction, and it commits reversible error

when it fails to comply." Fredricks, 235 S.W.3d at 281. The applicable rules a trial court

applies in determining a person's right to expunction are set out in article 55.01 of the

Texas Code of Criminal Procedure. TEX . CODE CRIM . PROC . ANN . art. 55.01 (Vernon 2006).

Article 55.01 sets out that a person is entitled to expunction of an arrest record if

       (1) the person is tried for the offense for which the person was arrested and
       is:

              (A) acquitted by the trial court, except as provided by
              Subsection (c) of this section; or

              (B) convicted and subsequently pardoned; or

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       (2) each of the following conditions exist:

              ....

              (B) 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 any offense other than a Class C
              misdemeanor . . . .

Id.

                                        B. Analysis

       Morales was neither acquitted by the trial court, nor convicted and subsequently

pardoned. Therefore, Morales had the burden to show that each of the conditions listed

under article 55.01(2) existed, including, in pertinent part, that there was no court ordered

community supervision. See id. art. 55.01(2)(B). At the expunction hearing, Morales did

not prove that there was no court-ordered community supervision. In fact, Morales testified

that after pleading guilty to a class A misdemeanor charge of assault, the court ordered

probation. This testimony is a judicial admission, see Mendoza v. Fidelity & Guar. Ins., 606

S.W.2d 692, 694 (Tex. 1980), and establishes that he was ordered to serve probation as

a consequence of the arrest he sought to expunge. The District Attorney also presented

evidence that Morales was ordered to serve twelve months of probation through State's

Exhibit 1. Moreover, in his petition for expunction of records, Morales stated that he

complied with all the conditions of court ordered probation.

       Therefore, because Morales has not proven that all the statutory requirements have

been satisfied, specifically that he was not placed on probation under article 42.12, he is

not entitled to expunction of records related to this arrest. See TEX . CODE CRIM . PROC .



                                             5
ANN . art. 55.01(2)(B) (Vernon 2006). We conclude the trial court abused its discretion by

entering an order expunging Morales's records and sustain DPS's sole issue.

                                      IV. Conclusion

       Accordingly, we reverse the trial court's order and render judgment denying the

expunction. Pursuant to DPS's prayer for relief, we order all documents that were turned

over to the trial court or to Morales to be returned to the submitting agencies. See Ex Parte

Elliott, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of the

expunction applies to all respondents, even if they did not participate in the appeal).



                                                    NELDA V. RODRIGUEZ
                                                    Justice

Memorandum Opinion delivered and
filed this 22nd day of May, 2008.




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