Ex Parte E.C. ( 2021 )

NUMBER 13-20-00244-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
EX PARTE E.C.
On appeal from the County Court at Law No. 7
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Hinojosa, and Tijerina
Memorandum Opinion by Justice Longoria
Appellant, the Texas Department of Public Safety (DPS), argues on appeal that
the trial court erred by entering an expunction order for appellee E.C. We reverse and
remand.
I. BACKGROUND 1
E.C. was arrested on October 2, 2018, and later charged for assault causing bodily
1 We note that on June 18, 2021, counsel for appellee filed a letter with the Court indicating
appellee “must concede” that the trial court “lacked jurisdiction” to grant the expunction.
injury, family violence, in Cause Number CR-18-16469-G. 2 On October 29, 2019, E.C.
pled not guilty, and after a jury trial, E.C. was acquitted of the assault charge.
On November 6, 2019, a proposed order granting expunction of E.C.’s acquitted
charge was filed without a petition requesting expunction. The order was granted and
signed by the trial court on December 28, 2019. Thereafter, on January 6, 2020, the trial
court sent DPS and the other respondents notice of the order. DPS has filed a restricted
appeal.
II. RESTRICTED APPEAL
A. Standard of Review & Applicable Law
Restricted appeals are governed by Rule 30 of the Texas Rules of Appellate
Procedure. See TEX. R. APP. P. 30. When a party does not participate in person or through
counsel in a hearing that results in a judgment, that party may be eligible for a restricted
appeal. See id. When addressing a restricted appeal, our review is limited to the face of
the record. Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.—Corpus Christi–Edinburg
2016, no pet.). For these purposes, the “face of the record” consists of all papers that
were before the trial court at the time it rendered judgment. Id.To sustain a restricted appeal, the filing party must prove: (1) the party filed notice
of the restricted appeal within six months after the judgment was signed; (2) the party was
a party to the underlying lawsuit; (3) the party 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 from the
2 E.C. was also charged in Cause Number CR-18-16470-G for another related offense which is not
part of the appellate record.
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face of the record. TEX. R. APP. P. 26.1(c), 30; Pike-Grant v. Grant, 447 S.W.3d 884, 886
(Tex. 2014) (per curiam); Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex.
2004).
B. Discussion
DPS filed a notice of restricted appeal within six months of the judgment and it was
a party to the underlying lawsuit, meeting the first two prongs required to be entitled to a
restricted appeal. See Pike-Grant, 447 S.W.3d at 886. The third prong requires DPS to
show it did not participate in the hearing, file any post-judgment motions, or request
findings from the trial court. See id.
We are required to liberally construe the non-participation requirement for
restricted appeals in favor of the right to appeal. Id.; Stubbs v. Stubbs, 685 S.W.2d 643,
644–45 (Tex. 1985). The question is whether DPS participated in the decision-making
event that resulted in the judgment or adjudication of the its rights. Stubbs, 685 S.W.2d
at 644; In re B.H.B., 336 S.W.3d 303, 305 (Tex. App.—San Antonio 2010, pet. denied).
A restricted appeal is not an equitable proceeding. Texaco, Inc. v. Central Power & Light
Co., 925 S.W.2d 586, 590 (Tex. 1996). An appellant [in a restricted appeal] “is not
required to show diligence or lack of negligence before its complaints will be
heard . . . [because] it is the fact of nonparticipation, not the reason for it, that determines
the right to [a restricted appeal].” Id.; see In re Marriage of Butts, 444 S.W.3d 147, 152
(Tex. App.—Houston [14th Dist.] 2014, no pet.); Midstate Envtl. Servs., LP v. Peterson,
435 S.W.3d 287, 291 (Tex. App.—Waco 2014, no pet.); Orgoo, Inc. v. Rackspace US,
Inc., 341 S.W.3d 34, 40 (Tex. App.—San Antonio 2011, no pet.).
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DPS contends that the trial court’s expunction order should be set aside because
it was not provided notice of the hearing pursuant to article 55.02. See TEX. CODE CRIM.
PROC. ANN. art. 55.02; Tex. Dep’t of Public Safety v. Deck, 954 S.W.2d 108, 112–13 (Tex.
App.—San Antonio 1997, no pet.). DPS is an agency named in E.C.’s petition; therefore,
it was entitled to reasonable notice of a hearing. See Deck, 954 S.W.2d at 112–13; Tex.
Dep’t of Pub. Safety v. Soto, 285 S.W.3d 542, 544 (Tex. App.—Corpus Christi–Edinburg
2009, no pet.). This record does not reflect that a hearing was held, and therefore DPS,
a party to the litigation, did not participate in the hearing for E.C.’s expunction. See
Soto, 285 S.W.3d at 544 (concluding that the trial court erred in granting a petition for
expunction because the appellant did not receive notice that the expunction hearing was
reset). Because there was not a hearing for DPS to participate in the expunction, we find
that it meets the third prong for a restricted appeal. Id.Having concluded that DPS meets the first three requirements, we now turn to
whether the error is apparent on the face of the record.
III. EXPUNCTION REQUIREMENTS
DPS asserts that the trial court erred by granting E.C.’s expunction without
following the mandatory statutory procedures. Specifically, DPS claims that because the
trial court failed to provide all parties with notice of E.C.’s petition for expunction, E.C.’s
expunction must be set aside.
A. Standard of Review & Applicable Law
Generally, we review a trial court’s expunction ruling for an abuse of discretion. Ex
parte Green, 373 S.W.3d 111, 113 (Tex. App.—San Antonio 2012, no pet.). However, to
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the extent an expunction ruling turns on a question of law, we review the ruling de novo
because a trial court has no discretion in determining what the law is or in applying the
law to the facts. Id. (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)); Travis
Cnty. Dist. Att’y. v. M.M., 354 S.W.3d 920, 922 (Tex. App.—Austin 2011, no pet.). 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).
The remedy of expunction permits a person who has been arrested for the
commission of a criminal offense and released, and who meets certain other conditions,
to have all records and files related to that arrest removed from the government’s records.
See Ex parte Vega, 510 S.W.3d at 548. Although the statute is codified in the Texas Code
of Criminal Procedure, an expunction proceeding is civil in nature. Id. As in other civil
proceedings, it is the petitioner’s burden to show that all the statutory conditions have
been met. Id. And because expunction is not a right but a statutory privilege, each of the
statutory conditions for expunction are mandatory and exclusive. Id. The trial court must
strictly comply with the statutory procedures for expunction, and it commits reversible
error when it fails to comply. See TEX. CODE OF CRIM. PROC. ANN. art. 55.02, § 2(c); Tex.
Dep’t of Pub. Safety v. Fredricks, 235 S.W.3d 275, 281 (Tex. App.—Corpus Christi–
Edinburg 2007, no pet.) (citing Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.—Waco
1997, pet. denied)). Section 2(c) of article 55.02 provides that:
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the court shall set a hearing on the matter no sooner than thirty days from
filing of the petition and shall give to each official or agency or government
entity named in the petition reasonable notice of the hearing by either
certified mail, return receipt requested or secure electronic mail, electronic
transmission, or facsimile transmission.
TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(c) (emphasis added).
It is an abuse of discretion for the trial court to order expunction when the statutory
conditions have not been met because the court possesses “no equitable power to permit
expunction where it is not allowed” by statute. Ex parte Vega, 510 S.W.3d 548.
B. Analysis
The record is devoid of any prehearing notice, or other documentation, that should
have been sent to DPS as a party in the underlying matter. We therefore conclude that it
was error for the trial court to order E.C.’s records expunged without providing notice to
DPS. 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 E.C.’s records. Id.; see Rodriguez v.
T.M.B., 812 S.W.2d 449, 450–51 (Tex. App.—San Antonio 1998, no writ); see also State
v. Echeverry, 267 S.W.3d 423, 425 (Tex. App.—Corpus Christi–Edinburg 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.”).We sustain DPS’s first issue. 3
IV. CONCLUSION
We reverse the trial court’s order of expunction and remand the case to the trial
court for further proceedings consistent with this memorandum opinion.
3 Having sustained DPS’s first issue, we need not address its second issue. See TEX. R. APP.
P. 47.1.
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NORA L. LONGORIA
Justice
Delivered and filed on the
24th day of June, 2021.
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