                             NUMBER 13-10-00130-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


                           EX PARTE: RAMIRO DURAN


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                          MEMORANDUM OPINION

       Before Chief Justice Valdez and Justices Yañez and Garza
                Memorandum Opinion by Justice Garza

       Appellant, the Texas Department of Public Safety (“TDPS”), brings this restricted

appeal challenging the trial court’s order of expunction in favor of appellee, Ramiro Duran.

See TEX . R. APP. P. 30. By two issues, the TDPS argues that: (1) Duran was not entitled

to an expunction of records related to his arrests for driving while intoxicated and evading

arrest or detention with a vehicle because he was convicted of both offenses, see TEX .

CODE CRIM . PROC . ANN . art. 55.01(a)(2)(B) (Vernon 2006); and (2) the trial court abused

its discretion in ordering the expunction of Duran’s criminal records because the TDPS did

not receive notice of the hearing as required by article 55.02, section 2(c) of the code of
criminal procedure. See id. art. 55.02, § 2(c) (Vernon Supp. 2009). We reverse and

remand.

                                            I. BACKGROUND

        Duran filed a petition for expunction of records relating to six offenses.                      Six

agencies, including the TDPS, were listed in the petition as having records or files

pertaining to the offenses. A hearing on Duran’s petition was set for December 18, 2008,

and the TDPS admits that it received notice of this hearing. On December 12, 2008, the

TDPS filed an original answer denying the allegations made in Duran’s petition and

asserting an affirmative defense as to one of the offenses.

        Though the record does not contain an order resetting the originally scheduled

December 18, 2008 hearing, the trial court conducted a hearing on Duran’s petition on

September 30, 2009. The TDPS did not appear for the September 30, 2009 hearing, and

at the conclusion of the hearing, the trial court ordered an expunction of Duran’s criminal

records. On March 16, 2010, the TDPS filed its notice of restricted appeal.1 See TEX . R.

APP. P. 26.1(c).

                                        II. RESTRICTED APPEAL

        To successfully attack an order by restricted appeal, the TDPS must show: (1) it

was a party who did not participate, either in person or through counsel, in the hearing that

resulted in the judgment complained of; (2) it filed a notice of appeal within six months after

the order was signed; (3) it did not timely file a postjudgment motion or request findings or

fact and conclusions of law; and (4) error is apparent on the face of the record. TEX . R.

APP. P. 26.1(c), 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004); see


        1
         The TDPS did not file any postjudgm ent m otions, nor did it m ake requests for findings of fact or
conclusions of law.

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Tex. Dep’t of Pub. Safety v. Fredricks, 235 S.W.3d 275, 278 (Tex. App.–Corpus Christi

2007, no pet.).

                                  III. STANDARD OF REVIEW

       In restricted appeals, we are limited to considering only errors that are apparent on

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

(Tex. 1997) (per curiam); Fredricks, 235 S.W.3d at 280. The “face of the record” includes

all papers on file in the appeal and the reporter’s record, if any. Norman Commc’ns, 955

S.W.2d at 270. A restricted appeal affords the appellant the same scope of review as an

ordinary appeal—in other words, the entire case. See id.

       Article 55.02 of the code of criminal procedure governs the procedures for

expunction. See TEX . CODE CRIM . PROC . ANN . art. 55.02. These provisions are mandatory

and must be complied with in an expunction proceeding. Tex. Dep’t of Pub. Safety v.

Deck, 954 S.W.2d 108, 111-12 (Tex. App.–San Antonio 1997, no writ); Tex. Dep’t of Pub.

Safety v. Riley, 773 S.W.2d 756, 758 (Tex. App.–San Antonio 1989, no writ). Article 55.02

provides that the trial court shall set a hearing on a petition for expunction no sooner than

thirty days from the filing of the petition and shall give reasonable notice of the hearing to

each respondent named in the petition, namely, the various law enforcement agencies that

have records or files subject to expunction. TEX . CODE CRIM . PROC . ANN . art. 55.02, § 2(c).

While there is no requirement that the respondents be served with the petition for

expunction itself, the trial court is required to notify them of the hearing. See Deck, 954

S.W.2d at 112 (noting that because an expunction hearing is civil in nature, each law

enforcement agency cited is entitled to represent itself).

       If the record does not indicate that a proper agency was notified in accordance with



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the statute, then the record reflects a proceeding in violation of the statute and the

expunction order must be set aside. See Deck, 954 S.W.2d at 112; Rodriguez v. T.M.B.,

812 S.W.2d 449, 450-51 (Tex. App.–San Antonio 1991, no writ) (setting aside an

expunction order after finding that the hearing took place without notice to any respondent);

Riley, 773 S.W.2d at 758 (setting aside an expunction order because the record did not

reflect that the law enforcement agencies had been notified of the hearing and because

the trial court violated the thirty-day waiting period); see also Tex. Dep’t of Pub. Safety v.

Cruz, No. 13-09-00145-CV, 2009 Tex. App. LEXIS 6971, at *4-7 (Tex. App.–Corpus Christi

Aug. 31, 2009, no pet.) (mem. op.) (setting aside an expunction order where a law

enforcement agency was notified of the originally scheduled expunction hearing but not of

the reset expunction hearing); Tex. Dep’t of Pub. Safety v. Flores, No. 04-07-00257-CV,

2008 Tex. App. LEXIS 1021, at *2-4 (Tex. App.–San Antonio Feb. 13, 2008, no pet.) (mem.

op.) (same).

                                               IV. ANALYSIS

        In its second issue, the TDPS asserts that the trial court abused its discretion in

ordering the expunction of Duran’s criminal records because the TDPS did not receive

notice of the September 30, 2009 hearing. The reporter’s record reflects that the trial court

conducted a hearing on September 30, 2009, with only Duran’s attorney appearing before

the court. Additionally, the record is devoid of any notice or other document alerting the

law enforcement agencies listed in Duran’s petition of the resetting of the December 18,

2008 hearing to September 30, 2009.2 We therefore conclude that it was error for the trial

        2
          In its “DESIGNATION OF CLERK’S RECORD,” the TDPS requested that all fiats and notices of
hearing for the Decem ber 18, 2008 hearing and any other settings be provided in the clerk’s record. However,
no notice to the law enforcem ent agencies of the Septem ber 30, 2009 hearing appears in the record before
us. Further, Duran has not filed a brief in this m atter, nor has he directed us to any evidence dem onstrating
that the TDPS actually received notice of the Septem ber 30, 2009 hearing.

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court to order Duran’s records expunged without providing notice to the TDPS of the

September 30, 2009 hearing. See Deck, 954 S.W.2d at 112-13. This violation of

mandatory procedure requires us to set aside the trial court’s order expunging Duran’s

records. See Rodriguez, 812 S.W.2d at 450-51; Riley, 773 S.W.2d at 758; see also State

v. Echeverry, 267 S.W.3d 423, 425 (Tex. App.–Corpus Christi 2008, pet. denied) (“The trial

court must strictly comply with the statutory procedures for expunction, and it commits

reversible error when it fails to comply.”). Accordingly, we sustain the TDPS’s second

issue.

         Because we have sustained the TDPS’s second issue, we need not address its first

issue.3 See TEX . R. APP. P. 47.1.

                                                V. CONCLUSION

         The judgment of the trial court is reversed, the expunction order is set aside, and

the case is remanded to the trial court for proceedings consistent with this opinion.




                                                                        ________________________
                                                                        DORI CONTRERAS GARZA,
                                                                        Justice

Delivered and filed the
19th day of August, 2010.




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           W e note, however, that the Septem ber 30, 2009 order expunges the records related to two offenses
that were not included in Duran’s petition for expunction and that, according to the TDPS and the order on
appeal, resulted in Duran’s conviction. See T EX . C OD E C R IM . P R O C . A N N . art. 55.01(a)(2)(B) (Vernon 2006)
(stating that one of the requirem ents for expunction is that “the person has been released and the charge, if
any, has not resulted in a final conviction and is no longer pending”).

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