Texas Department of Public Safety v. J. W. M. ( 2018 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-17-00792-CV
Texas Department of Public Safety, Appellant
v.
J. W. M., Appellee
FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
NO. 20353, HONORABLE JOHN GAUNTT, JUDGE PRESIDING
MEMORANDUM OPINION
The Texas Department of Public Safety (the Department) brings this restricted appeal
of the trial court’s order granting J.W.M.’s petition to expunge his arrest for insurance fraud.
See Tex. Penal Code § 35.02(a). The Department argues in one issue that J.W.M. presented legally
insufficient evidence to establish his entitlement to expunction. For the reasons that follow, we will
reverse and render judgment denying his petition.
BACKGROUND
J.W.M. argued in his petition that he was entitled to expunge the records of his arrest
for fraud because he had been released, the charge did not result in a final conviction and was no
longer pending, and the indictment had been “dismissed or quashed.” See Tex. Code Crim. Proc.
art. 55.01(a)(2)(A)(ii). The trial court scheduled a hearing on the petition for July 14, 2017, and sent
notice to the Department, the Lampasas County Attorney, and the other governmental entities named
in J.W.M.’s petition as possessing records subject to expunction. See id. art. 55.02, § 2(b)(8)
(directing expunction petitioners to list all governmental entities that might possess records
subject to expunction), (c) (requiring trial court to send “reasonable notice” of hearing to each
affected entity).
The Department filed an answer generally denying J.W.M.’s allegations, but its
counsel was not present at the hearing. At the beginning of the hearing, the trial court commented
that notice had been sent to the Department, and the assistant county attorney stated: “This morning
I contacted by telephone the [Department] attorney that filed the answer. They indicated they are
not coming. They would just ask the Court [to] consider their answer and the arguments made
therein.” The hearing proceeded with the county attorney, J.W.M., and his counsel.
The parties focused their arguments on whether J.W.M. met the requirements for
expunction when a charging instrument was presented following the arrest. If the statute of
limitations on the offense has not expired, as it had not here, expunction is only available if the
indictment was dismissed due to one of four enumerated reasons. See id. art. 55.01(a)(2)(A)(ii), (B).
J.W.M. did not specify in his petition which ground allegedly occurred here but argued at the hearing
that the indictment was dismissed because it was “void.” See id. art. 55.01(a)(2)(A)(ii)(d). The trial
court heard arguments from the parties and brief testimony from J.W.M. and took judicial notice of
its file from the fraud case.
The trial court’s case file reflects that a grand jury presented an indictment charging
J.W.M. with insurance fraud on April 10, 2015. J.W.M. filed a motion to quash arguing that the
indictment failed to specify which subsection he allegedly violated by the specific conduct at issue.
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The trial court noted on its docket sheet that “the indictment is likely not specific” but reserved its
ruling because the county attorney prosecuting the case stated that he intended to seek a corrected
indictment from the grand jury. The county attorney ultimately filed his own motion to dismiss the
indictment, giving the reason that a grand jury had presented an indictment charging J.W.M. with
the offense of fabricating evidence and he wished to proceed only on the new charge.1 At the bottom
of the same motion is a preprinted order that the presiding judge signed the same day.
The trial court announced at the conclusion of the expunction hearing that it was
granting J.W.M.’s petition and later signed an order to that effect. The Department took this
restricted appeal of that order. See Tex. R. App. P. 30.
DISCUSSION
To sustain its restricted appeal, the Department must prove: (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 post-judgment motions or requests for findings of fact and conclusions of law,
and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886
(Tex. 2014) (per curiam). These requirements are mandatory and jurisdictional. Cox v. Cox,
298 S.W.3d 726, 730 (Tex. App.—Austin 2009, no pet.). Only the third and fourth requirements
are at issue here.
1
The full text of the motion reads: “Case investigation to led to charge of tampering /
fab[ricating] evidence - a third degree felony. 2 charges/indictment would be confusing to the jury.”
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Non-participation
Whether an appellant meets the non-participation requirement turns on whether it
“participated in the decision-making event” that resulted in the adjudication of its rights. Texaco,
Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589 (Tex. 1996); see Bahar v. Lyon Fin. Servs.,
330 S.W.3d 379, 389 (Tex. App.—Austin 2010, pet. denied). It is the fact of non-participation,
rather than the reason for it, that determines the right to take a restricted appeal. Texaco, 925 S.W.2d
at 590. We construe non-participation liberally in favor of the right of appeal. Pike-Grant,
447 S.W.3d at 886.
J.W.M. argues that the Department effectively participated in the hearing by filing
an answer and having the assistant county attorney argue its position to the trial court. He relies on
C&V Club v. Gonzalez, a case where the court of appeals held that the appellant, Vincent Mercado,
participated because he “was represented by counsel who was present and vocal during the entire
hearing” even though Mercado was not personally present. 953 S.W.2d 755, 759 (Tex.
App.—Corpus Christi 1997, no writ). J.W.M. argues that the county attorney acted for the
Department and kept it informed in much the same way that Mercado’s lawyers kept him informed
throughout the litigation. The comparison is not apt because the expunction statute authorizes each
entity named in the petition to represent itself and to appeal the trial court’s ruling. See Tex. Code
Crim. Proc. art. 55.02, §§ 2 (c-1), 3(a); Texas Dep’t of Pub. Safety v. J.B.R., 510 S.W.3d 610, 616
(Tex. App.—El Paso 2016, no pet.). There is no evidence that the Department asked the county
attorney to represent it, and we decline to hold that the county attorney assumed that responsibility
by conveying a message that merely called the trial court’s attention to the Department’s answer.
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See Ex parte Stiles, 958 S.W.2d 414, 417-18 (Tex. App.—Waco 1997, pet. denied) (holding that the
district attorney did not represent Department in expunction proceeding when there was no
agreement to that effect).
J.M.W. also makes a broader point that we should not allow the Department to take
a restricted appeal because of its deliberate absence from the hearing. His argument assumes that
the right to take a restricted appeal has an equitable component, but a restricted appeal “is not an
equitable proceeding.” Texaco, 925 S.W.2d at 590. As a result, there is no requirement that the
appellant “show diligence or lack of negligence before its complaints will be heard.” Id. Applying
this rule to the record before us, the fact that the Department had filed an answer and had notice of
the hearing does not change the fact that it did not participate in the decision-making event that
resulted in the expunction order. See id. (observing that “it is the fact of nonparticipation, not the
reason for it, that determines the right” to take a restricted appeal); see also Texas Dep’t of Pub.
Safety v. J.W.D., No. 03-14-00101-CV, 2014 WL 7464229, at *1 (Tex. App.—Austin Dec. 31, 2014,
pet. denied) (mem. op.) (reaching same conclusion on facts similar to this case).
We conclude that the Department meets the non-participation requirement for a
restricted appeal.
Entitlement to Expunction
The Department argues that there is error on the face of the record because J.W.M.
failed to provide legally sufficient evidence of his entitlement to expunction. The face of the record
in a restricted appeal consists of all the papers on file, including the reporter’s record. Norman
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Commc’ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). A claim that insufficient
evidence supports a judgment is reviewable on a restricted appeal. Id.Expunction is not a right but a statutory privilege, and the petitioner bears the burden
of proving that each of the required conditions have been met. Texas Dep’t of Pub. Safety v. G.B.E.,
459 S.W.3d 622, 625 (Tex. App.—Austin 2014, pet. denied) (en banc). To carry this burden, the
petitioner must provide more than allegations in a verified pleading. See Ex parte K.R.K.,
446 S.W.3d 540, 544 (Tex. App.—San Antonio 2014, no pet.) (noting that “allegations in a petition
seeking expunction are not evidence”). “The trial court must strictly comply with the statutory
requirements, and has no equitable power to expand the remedy’s availability beyond what the
legislature has provided.” Texas Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex.
App.—Austin 2010, no pet.) (quoting T.C.R. v. Bell Cty. Dist. Attorney’s Office, 305 S.W.3d 661,
663 (Tex. App.—Austin 2009, no pet.)).
We review a trial court’s ruling on an expunction petition for a clear abuse of
discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). A court abuses its discretion when
it acts without reference to guiding rules or principles or without supporting evidence. G.B.E.,
459 S.W.3d at 624. When reviewing factual matters, we may not substitute our judgment for the
trial court’s unless it is clear from the record that the trial court could reach only one decision. Id.
When reviewing a legal-sufficiency challenge, we review all the evidence in the light
most favorable to the judgment, credit favorable evidence if a reasonable fact finder could and
disregard contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson,
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168 S.W.3d 802, 807 (Tex. 2005). We will sustain a legal-sufficiency complaint if the record
reveals, among other circumstances, no evidence of a vital fact. Id. at 810.
The Department contends that J.W.M. provided no evidence that the fraud indictment
“was dismissed or quashed because . . . the indictment . . . was void.” Tex. Code Crim. Proc. art.
55.01(a)(2)(A)(ii)(d). Rather, the only evidence in the record regarding the reason for the dismissal
is the ground stated in the county attorney’s motion to dismiss, that he preferred to go forward solely
on the fabrication-of-evidence charge. Generally, an indictment is “‘void’ only if it fails to constitute
an indictment at all because it fails to charge (1) a person, (2) the commission of an offense, or (3) an
offense for which the trial court has subject-matter jurisdiction.” Ex parte Koester, 450 S.W.3d 908,
912 n. 2 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Teal v. State, 230 S.W.3d 172,
179-80 (Tex. Crim. App. 2007)). J.W.M. does not point to any evidence that the indictment was
dismissed for any of these reasons, and our own review of the record does not disclose any evidence
that the trial court dismissed the indictment for a jurisdictional defect. Cf. Ex parte Jackson,
132 S.W.3d 713, 715-16 (Tex. App.—Dallas 2004, no pet.) (holding that petitioner carried this part
of his burden by offering unpublished opinion of court of criminal appeals dismissing indictments
against him as void). We conclude that no evidence supports this element of J.W.M.’s claim.
Because J.W.M. failed to prove his entitlement to expunction, the trial court abused its
discretion by granting him relief. See Texas Dep’t of Pub. Safety v. M.G., No. 03-16-00279-CV,
2018 WL 1937311, at *4 (Tex. App.—Austin Apr. 25, 2018, pet. denied) (mem. op.) (holding that
trial court abused its discretion because petitioner provided no evidence that indictment was
dismissed for reason reflecting absence of probable cause). We sustain the Department’s sole issue.
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CONCLUSION
We reverse the trial court’s order and render judgment denying J.W.M.’s petition.
Pursuant to the Department’s prayer for relief, we order that all documents turned over to the
trial court, J.W.M., or his counsel be returned to the submitting agencies. See Ex parte Elliot,
815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of expunction applies to all
affected agencies, even if they did not participate in appeal).
_________________________________________
Cindy Olson Bourland, Justice
Before Justices Puryear, Bourland, and Toth
Reversed and Rendered
Filed: December 12, 2018
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