Ex Parte J.K. ( 2018 )

IN THE
TENTH COURT OF APPEALS
No. 10-17-00397-CV
No. 10-17-00398-CV
EX PARTE J.K.
From the 21st District Court
Burleson County, Texas
Trial Court Nos. 28,726 & 28,727
MEMORANDUM OPINION
J.K. filed a petition to expunge criminal records of his arrest on May 13, 2010 for
the offenses of possession of a controlled substance, possession of a dangerous drug, and
possession of prohibited weapons. On August 18, 2017, the trial court entered an order
granting J.K.’s request for an expunction. The Texas Department of Public Safety filed
a restricted appeal of the trial court’s order. See TEX. R. APP. P. 26.1(c); 30. We reverse
and remand.
The Department argues in its second issue that J.K. failed to present legally
sufficient evidence that he was entitled to an expunction. The record shows that J.K.
filed a motion for expunction pursuant to Chapter 55 of the Texas Code of Criminal
Procedure. See TEX. CODE CRIM. PROC. ANN. ch. 55 (West Supp. 2017). The Department
filed an answer but did not appear at the hearing on J.K.'s motion, participate in the
hearing, or file any post- judgment motions or a request for findings of fact.
Pursuant to Rules 26.1(c) and 30 of the Texas Rules of Appellate Procedure, the
Department may prevail in a restricted appeal only if it meets the following requirements:
(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 the State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009); TEX. R. APP. P. 26.1(c);
30. Only the fourth requirement is at issue in this appeal.
There is no reporter’s record from any hearing held by the trial court. The trial
court’s order states that J.K. appeared through counsel and that no other party appeared.
J.K. had the burden to produce evidence that he was entitled to an expunction. See Texas
Department of Public Safety v. Borhani, No. 03-08-00142-CV, 2008 Tex.App. LEXIS 7509
(Tex.App. – Austin 2008, no pet.). There is no evidence in the record to support the trial
court’s finding. J.K.’s counsel filed a motion to withdraw indicating that J.K. does not
wish to contest the appeal and does not wish to retain counsel’s services to respond to
the appeal. We sustain the Department’s second issue on appeal. We need not address
the Department’s first, third, or fourth issues. TEX.R.APP.P. 47.1.
Ex parte J.K. Page 2
Conclusion
We reverse the trial court’s judgments and remand for further proceedings.
Counsel’s motion to withdraw is granted.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and remanded; motion granted
Opinion delivered and filed April 4, 2018
[CV06]
Ex parte J.K. Page 3