Reversed and Rendered and Memorandum Opinion filed October 22, 2013.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-12-00585-CV

         TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
                                       V.
                    BRIAN DANIEL GRAHAM, Appellee

                   On Appeal from the 21st District Court
                        Washington County, Texas
                       Trial Court Cause No. 34864

                MEMORANDUM                     OPINION


      Appellant, the Texas Department of Public Safety (DPS), brings a restricted
appeal of the trial court’s order granting Brian Daniel Graham’s petition for
expunction as to the misdemeanor offense of theft of property by check. DPS
contends the trial court erred when it granted Graham’s petition because Graham
failed to establish he was entitled to expunction given that he served a term of
deferred adjudication for the offense. Because we conclude Graham failed to
prove he was entitled to expunction, we hold the trial court abused its discretion
when it granted his petition for expunction. Therefore, we reverse the trial court’s
judgment expunging Graham’s records and render judgment denying Graham’s
petition for expunction.

                                  BACKGROUND
      Graham was arrested in 1997 and charged with the Class B misdemeanor of
theft of property by check where the value of the property was at least $20 but less
than $500. See Tex. Penal Code Ann. § 31.03(e)(2)(A)(ii) (West 2011). Graham
eventually pleaded no contest to the offense and the trial court placed him on
deferred adjudication for six months and imposed various terms and conditions of
community supervision. Graham was arrested in 1998 for allegedly violating his
parole by failing to report by mail to his supervision officer, but this charge was
never prosecuted. Graham went on to complete his deferred adjudication.

      Graham eventually filed a sworn petition pursuant to chapter 55 of the Code
of Criminal Procedure, seeking an expunction of all records and files related to the
theft by check offense. See Tex. Code Crim. Proc. Ann. arts. 55.01–.03 (West
2006). In his petition, Graham admitted he had received deferred adjudication but
claimed he was still entitled to an expunction because he had successfully
completed his deferred adjudication.

      DPS was served with Graham’s petition and filed an answer asserting a
general denial and the affirmative defense that Graham was barred from expunging
the records related to his arrest for theft of property by check because he had
pleaded no contest and received deferred adjudication. The trial court held a
hearing on Graham’s petition for expunction, and DPS did not appear. Graham did
not present any testimony or other evidence at the hearing. The trial court signed
an order granting Graham’s petition for expunction on December 20, 2011. DPS

                                         2
filed a notice of restricted appeal on June 20, 2012.

                                      ANALYSIS
      DPS brings a single issue in this restricted appeal. In that issue, DPS
contends the trial court erred in granting Graham’s petition for expunction because
he was not eligible for expunction because he served a term of deferred
adjudication for the offense he sought to expunge. We agree with DPS.

I.    The applicable law and standard of review

      Expunction is neither a constitutional nor common law right, but a statutory
privilege. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W. 3d 803, 806 (Tex. App.—
Houston [14th Dist.] 2008, no pet.). Where a cause of action is created by statute,
all of its provisions are mandatory and exclusive, requiring strict compliance for
the action to be sustained. Id. The trial court has no power to extend equitable
relief beyond the clear meaning of Article 55.01 of the Code of Criminal
Procedure. Id. Even though the expunction statute is situated in the Code of
Criminal Procedure, an expunction proceeding is civil in nature; as a result, the
petitioner carries the burden of proving that all statutory conditions have been met.
Id.

      An appellate court reviews a trial court’s ruling on a petition for expunction
under an abuse of discretion standard. Id. The trial court abuses its discretion
when its decision is arbitrary, unreasonable, or without reference to any guiding
rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–
42 (Tex. 1985). The trial court may also abuse its discretion if it fails to analyze or
apply the law correctly. In re Columbia Med. Ctr., 306 S.W.3d 246, 248 (Tex.
2010) (orig. proceeding) (per curiam).




                                          3
      To challenge an expunction order successfully through a restricted appeal, a
party must establish that (1) the party filed a notice of restricted appeal within six
months after the judgment was signed, (2) it was a party to the underlying suit, (3)
the party did not participate in the hearing that resulted in the judgment that is the
subject of the restricted appeal, and (4) error is apparent on the face of the record.
See In re K.M., 401 S.W.3d 864, 865 (Tex. App.—Houston [14th Dist.] 2013, no
pet.); Tex. Dep’t of Pub. Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.—
Dallas 2008, no pet.). The face of the record includes all papers on file in the
appeal, including the clerk’s record and the reporter’s record. Id. Because it is
clear from the record that DPS meets the first three requirements, we address only
whether the face of the record establishes that Graham was not entitled to an
expunction of the records related to the theft of property by check charge.

II.   Graham did not meet his burden to prove that all statutory conditions
      had been met to permit expunction of the records related to his arrest
      for theft of property by check.
      Pursuant to article 55.01(a)(2), a person who has been placed under custodial
or non-custodial arrest for the commission of a felony or misdemeanor is entitled
to have all records and files relating to the arrest expunged if “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.” Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). In his
sworn petition, Graham admitted he served a term of deferred adjudication. DPS,
in its answer, attached a copy of Graham’s Deferred Adjudication Judgment that
resulted from his no contest plea. Thus, the face of the record reveals that Graham
served a term of community supervision under article 42.12 of the Code of
Criminal Procedure, and Graham failed to establish that he meets all of the
statutory requirements for an expunction of the theft of property by check charge

                                          4
under article 55.01. See Tex. Code Crim. Proc. Ann. arts. 42.12 § 5, 55.01(a)(2).

      Because Graham does not meet all of the statutory requirements for
expunction, we hold the trial court abused its discretion when it expunged all
records related to Graham’s arrest for theft of property by check. Tex. Dep’t of
Pub. Safety v. Foster, 398 S.W.3d 887, 890–91 (Tex. App.—Dallas 2013, no pet.).
We sustain DPS’s single issue on appeal.

                                  CONCLUSION

      Having sustained DPS’s issue on appeal, we reverse the trial court’s
judgment expunging Graham’s records and render judgment denying his petition
for expunction. J.H.J., 274 S.W.3d at 811.


                                      /s/       J. Brett Busby
                                                Justice


Panel consists of Justices Boyce, Jamison, and Busby.




                                            5
