                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION
                                         No. 04-16-00570-CV

                                EX PARTE Joshua Michael GRAVES

                      From the 408th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016-CI-01405
                           Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Irene Rios, Justice

Delivered and Filed: July 26, 2017

REVERSED AND REMANDED

           The Texas Department of Public Safety filed this restricted appeal challenging the trial

court’s expunction order, asserting: (1) Joshua Michael Graves was not entitled to have his arrest

records expunged because he was convicted and sentenced to community supervision; (2) the

evidence is legally insufficient to support the expunction order; (3) the trial court erred in ordering

an expunction without holding a hearing; and (4) if a hearing was held, no reporter’s record was

made of the hearing. Applying this court’s existing precedent, we sustain DPS’s fourth issue and

reverse the trial court’s order based on the absence of a reporter’s record.

                                            PROCEDURAL HISTORY

           In the underlying cause, Graves filed a verified petition for expunction of records seeking

to have the records relating to his 1996 arrest for driving while intoxicated expunged. DPS filed
                                                                                       04-16-00570-CV



an original answer generally denying all allegations in the petition and asserting Graves was not

entitled to an expunction because Graves’s arrest resulted in a final conviction and he was placed

on court-ordered community supervision. On March 10, 2016, the trial court signed an order

granting Graves’s petition and expunging the records.

       The official court reporter filed written notice in this court stating no hearing was held on

March 10, 2016, in the underlying cause; therefore, the appellate record does not contain a

reporter’s record.

                                                DISCUSSION

       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. Ins. Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255

(Tex. 2009); Ex parte Garcia, No. 04-15-00174-CV, 2016 WL 527517, at *1 (Tex. App.—San

Antonio Feb. 10, 2016, no pet.) (mem. op.). For purposes of a restricted appeal, the face of 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); Ex parte Garcia, 2016 WL

527517, at *1; Flores v. Brimex Ltd. P’ship, 5 S.W.3d 816, 819 (Tex. App.—San Antonio 1999,

no pet.). The absence of legally sufficient evidence to support a judgment is reviewable in a

restricted appeal. Norman Commc’ns, 955 S.W.2d at 270; Ex parte Garcia, 2016 WL 527517, at

*1; Flores, 5 S.W.3d at 819.

       In this case, the record establishes DPS timely filed a notice of restricted appeal, was a

party to the underlying lawsuit, did not participate in the hearing that resulted in the trial court’s


                                                 -2-
                                                                                                     04-16-00570-CV



order, and did not timely file any postjudgment motions or requests for findings of fact and

conclusions of law. With regard to DPS’s challenges to the legal sufficiency of the evidence and

Graves’s ability to have his records expunged, in the absence of a reporter’s record, we cannot

know what evidence, if any, was introduced before the trial court. 1 See Ex parte Graves, 2016

WL 527517, at *2; Ex parte Ruiz, No. 04-11-00808-CV, 2012 WL 2834898, at *1 (Tex. App.—

San Antonio July 11, 2012, no pet.) (mem. op.). “‘However, because DPS has complained of the

absence of a reporter’s record [and the court reporter has confirmed that no such record exists], the

trial court’s order must be reversed, and the cause must be remanded for a new hearing.’” Ex parte

Graves, 2016 WL 527517, at *2 (quoting Ex parte Ruiz, 2012 WL 2834898, at *1); but see Tex.

Dep’t of Pub. Safety v. Ibarra, 444 S.W.3d 735, 742-43 (Tex. App.—Corpus Christi 2014, pet.

denied) (holding remand not required where record reflected no evidence was presented at

expunction hearing and trial court’s decision was not based on evidence provided at the hearing).

                                                       CONCLUSION

         The trial court’s order is reversed, and the cause is remanded to the trial court for further

proceedings.

                                                           Rebeca C. Martinez, Justice




1
  If no hearing was held and no evidence was presented, we would reverse the trial court’s order because DPS filed a
general denial requiring Graves “to provide some evidence in addition to his verified pleading in order to carry his
burden of proof.” Ex parte K.R.K., 446 S.W.3d 540, 544 (Tex. App.—San Antonio 2014, no pet.); see also Ex parte
Graves, 2016 WL 527517, at *2 n.2 (same). We note the trial court’s order references both article 55 of the Texas
Code of Criminal Procedure and section 106.12 of the Texas Alcoholic Beverage Code, but we further note an
expunction under section 106.12, which is available for a person convicted of driving under the influence pursuant to
section 106.041 of the Texas Alcoholic Beverage Code, is not available for a person convicted of the offense of driving
while intoxicated as defined by section 49.04 of the Texas Penal Code. See Findlay v. State, 9 S.W.3d 397, 401 (Tex.
App.—Houston [14th Dist.] 1999, no pet.) (noting the “lack of expunction for minors convicted of DWI is justified
in light of the fact that DWI is a more serious crime than DUI”).

                                                         -3-
