### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00114- CV
Texas Depart m ent of Public Saf ety, A ppellan t
v. A. M., Appellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 22ND J UDICIAL DI STRICT NO. 15- 0104 , H ONO RAB LE R. B RUCE B OY ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
T h e Texas Depa

rtment of Public Safety filed a restric ted appea l challeng ing t h e district court’s order for expunction of rec ords re l ati ng to A.M.’s arr est for assault on a public

serva nt. I n four issues, DPS contends that: (1) A.M. was not entitled to expunction of h er arr est
rec ords beca

use she serve d a term of community supervision as a result of her arr est; (2) no evidenc e supports the expunction order ; (3) the district court err ed by not holding a hear ing; and alternatively , (4) if the court held a hear ing, the expunction order must be rever s ed an d t h e ca use remanded for

new trial beca

use there was no repor

ter’s rec ord of the hear ing. We will reve rse the district court’s order and re nder judg ment denying A .M. expunction of her re cords.BACK GR OUND The rec ord ref

lects that A.M. filed a verifie d petition in 2015 seeking expunction of all rec ords and files arising from her arr est fo r as s au l t on a public serva nt, a third-degree felony

. 1 As a result of her arr est for assault on a public serva nt, A.M. was char g ed with resisting arr est. A.M. pleade d no contest t o the re sisting ar rest cha rg e and completed two y ear s of deferr ed adjudication community supervision for that charg e. DPS filed an answe r g ener ally denying all alleg ations in A.M.’s petition, demandingproof of her a lleg ations, and conte nding that A.M. was not entitled to expunction of the rec ords beca use, among other rea sons, she s e r v e d a te rm of community supervision

as a r esult of her

arr est. The district court schedule d an August 17, 2016 hear ing on A. M
. ’s p etition for expunction. That day , the court signe d an order g ranting A.M.’s petition. The order specifie s that the court co n s i d ere d the pleading s, evidenc e, and documents on file, that the court found it had jurisdiction over the action and the parties, and that all proce dural and substantive require ments for

ex p u n ction of the criminal rec ords wer e met. Additionally , the bottom of the order contains a signature a

bove a line stating, “ Ag ree d to by District Attorney ’s Off

ice.” DPS filed a restric ted appe al cha lleng ing the expunction orde r. After DPS filed its appea l, the officia l court repor ter for the 22nd District Court filed a written notice stating that there is no reporte r’s re cord of

the expunction hearing

.

A
. M
. ’ s th ree -sentenc e verific ation identified herse lf as the petitioner acc used of the char g es 1 and stated that she had knowle dg e of the fac ts in the petition, which were true a nd corr ect. 2DISCUSSIO N The statutory rig ht to seek an expunction i s av ai l ab l e only when all statutory conditions have been met. Texas Dep’ t of Pub. Safety v. Nail , 305 S. W
. 3d 673, 674 (Tex. App.—Austin 20 1 0 , n o p et.). Courts have no power to extend equitable relief beyond the clea r meaning of the expunction statute. Travis Cty. Dist. Attorney v. M.M. , 354 S.W .3d 920, 923 (Tex. App.—Austin 2011, no pet.). A petitioner bear s the burden of proving compliance with all statutory require ments for expunction in this civil proce eding

. Id. To meet the burden of proving compliance with all statutory require ments for e x punction of cr iminal recor ds, a petitioner must provide more than alleg ations in a verifie d pleading

. Ex parte K.R.K. , 446 S.W .3d 540, 544 (T ex . Ap p . — San Antonio 2014, no pet.) (noting that “alleg ations in a petition seeking expunction are not evidenc e”)

.
Restr icte d app eal re qui rem ents

To sustain its restric ted app ea l challeng ing the expunction order , DPS must prove that: (1) it filed notice of the restric ted appea l within six months afte r the judgme nt was signe d; (2) it

was a party to the underly ing lawsuit; (3) it did not participa te in the hear ing that resulted in the judgme nt complained of and did not timely file any post-judgme nt motions or reque sts for finding s of fac t and conclusions of law; and (4) err or is appar ent on the fac e of the rec ord. See Tex. R. App. P. 26.1(c) , 30; Pike- Grant v. Grant , 447 S.W .3d 884, 886 (Tex. 2014)

. The fac e of the rec ord in a restric ted appea l consists of all paper s on file in the appea l, including the repor ter’s rec ord. Norman Commc’ns v. Texas Eastman Co ., 955 S.W .2d 269, 270 (Tex. 1997). Absenc e of leg ally sufficie nt evidenc e to suppor

t a judgme nt is revie wable in a restric ted appe al. Id

. at 270; see Tex as Dep’ t of Pub. Safety v. J.W

.D. , No. 03-14-00101- CV, 2014 Tex. App. L EXI S 138 8 6 , at *4-5 (Tex.
3App.—Austin Dec
. 31, 2014, pet. denied) (mem. op.) (noting that revie w for err or on fac e of rec ord

in appea l of expunction order involves consideration of entire case and encompa sses claims of leg al and fac tual insufficienc y

). Be cause the rec ord establishes that DPS timely filed a notice of restric ted appea l, was a pa

rty to the underlying la

wsuit, did not participate in the hearing that resulted in the trial court’s order , and did not timely file any postjudgment motions or reque sts for finding s of fac t and conclusions of law, only the fourth element of the restric ted appea l—i.e., whether there is err or on the fa ce of

the re cord—is at issue he re.
Stand ard of review

We revie w a trial court’s order g ranting or denying expunct io n f o r a b u s e o f d is c retion, which g ener ally means that the trial court acte d without ref ere nce to any g uiding rules or principles. Nail , 305 S.W .3d at 678 (interna l citations omitted). To the extent an expunction ruling turns on a question of law, we revie w it de novo beca use a trial court has no discretion in deter mining what the law is or applying the law to the fac ts; a court abuses its discr etion if it misinterpre ts or misapplies the law. Id

. When r eviewing a challeng e to the leg al sufficie ncy of the evidenc e, we revie w the evidenc e in the l ight most favor able to the judgme nt, cre diting favor able evidenc e if rea sonable jurors could and disreg arding contra ry evidenc e unless rea sonable jurors could not. Id

. (citing City of Keller v. W

ilson , 168 S.W .3d 802, 807 (Tex. 2005)). We sustain a leg al sufficie ncy complaint if the rec ord reve als: (1) the complete absenc e of a vital fac t; (2) the court is barr ed by rules of law or
ev idence from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (3) the evidence

4offe re d t o p ro v e a v ital fac t is no more than a mere scintilla; or (4) the evidenc e conclusively

establishes the opposite of the vital fac t. Id . (citing Keller , 168 S.W .3d at 810).
A.M. was not entitled to orderof expu nction

I n its first issue, DPS contends that A.M. was not entitled to expunction of her arr est
rec ords beca

use she serve d a term of community supervision as a result of her arr est. The rele vant portion of the expunction statute in effe ct when A .M. filed her petition required pr oof that: (2) the person has been rele ased and th e ch arg e, if any , has not resulted in a final conviction and is no l o ng er pending and there was no court-or dere d community supervision under article 42.12 for t h e o ff en s e, unless the offe nse is a class C misdemeanor . . . .
SeeAct of Ma

y 27, 2011, 82d L eg ., R.S., ch. 894, 2011 Tex. Gen. L aws 2275, 2275-76 ( amende d 2015, 2017) (curre nt v er s i o n at Tex
. Code Crim. Proc. art. 55.01(a) (2))

. Thus, under the rele vant version of the statute, a petitioner seeking expunction must prove that: (1) she has been rele ased; (2) the char g e, if any , did not result in a final conviction; (3) the char g e, if any , is no longe r pending ; and (4) there was no court-or dere d community sup er vision under article 42.12 for the offe nse, unless it was a class C misdemeanor. See T

. H. v. Texas Dep’ t of Pub. Safety , No. 03-15-00304- CV, 2016 Tex. App. L EXI S 10856, at *6 (Tex. App.—Austin Oct. 6, 2016, no pet.) (me m. op.).

Texas courts, including ours, have held that article 55.01 require s an “ar rest-ba sed” approa ch to expunction beca use it authorizes expunction of rec ords conce rning an arr est
. Texas Dep’ t of Pub. Safety v. J.A.M. , No. 01-16-00814- CV, 2017 Tex. App. L EXI S 3982, at *5 (Tex. App.—Houston [1st Dist.] May 2, 2017, no pet.) (mem. op.); T.H. , 2016 Tex. App. L EXI S 10856,

5at *9; S.J. v. State , 438 S.W .3d 838, 843-46 (Te x . App.— For t Worth 2014, no pet.); Texas Dep’t of Pub. Safety v. Dicke n , 415 S.W .3d 476, 479 (Tex. App.—San An t o n i o 2013, no pet.). “The statute does not addr ess or make allowanc es for expunction of individual of fense s stemming fr om
an arr est.” T

. H. , 2 0 1 6 Tex. App. L EXI S 10856, at *8 (quoting Dicke n , 415 S.W .3d at 480). I f expunction i s n o t av ailable for all char g es stemming from an arr est, it is not available for any of them. J.A.M. , 2017 Tex. App. L EXI S 3982, at *5; V.E. v. Travis Ct y. Dist. Attorney , 500 S.W .3d 652, 655-56 (Te x . App.—Austin 2016, no pet.).

Her e, A.M.’s “De fer

ment of Adjudication” order in the rec ord shows that A.M. was “plac ed on community supervision for a term of two y ear s” afte r pleading “Nolo Contendere to the char g e [of] resisting arr est,” stemming from her arr est for assault on a public serva nt, a peac e office r. A.M. acknow ledg es that she “did complete defe rre d adjudication for the resisting arr est char g e” but contends that she was entitled to expunction beca use resisting arr est was not the offe nse for which she was arr ested. Howeve r, as we have noted, t h e expunction statute “does not addre ss or make allowanc es for expunction of individual offe nses stemming from an arr est.” T.H. , 2016 Tex. App. L EXI S 10856, at *8 (quoting Dick en , 415 S.W .3d at 480). Rather, “the statute require s an all-or- nothing approa ch to expunction for eac h arr est.” V.E. , 500 S.W .3d at 656. We conclude that there is err or on the fac e of thi s re cord, which shows that A.M. serve d a term of community supervision for a char g e stemming from her arr est for assault on a public serva nt and that A.M. was not entitled to expunction of rec ords under 55.01(a) (2) for that arr est. We sustain DPS’s first issue.

A.M. responds that even if her defe rre d adjudication community supervision on the resisting -ar

rest char g e rende red her ineligible to expunge rec ords of her arr est for assault on a public

6serva

nt, she met th e statutory require ments for a “discre tionary expunction” rec ommended to the district court by a prosec utor under article 55.01(b)( 2). See Act of May 27, 2011, 82d L eg ., R.S., ch. 690, 2011 Tex. Ge n. L aws 1653, 1654 (ame nded 2015, 2017) (cur rent version at Tex. Code Crim. Proc. art. 55.01(b)( 2)). That st atute provided, in rele vant part, that a dis trict court may follow the proce dure set forth in article 55.02 to expunge all rec ords and files relating to the arr est of a person for a felony or misdemeanor

if: (2) an office of the attorney repr esenting the state authorized by law to prosec ute the o ffe nse for which the person was arr ested rec ommends the expunction t o t h e appropr iate district court befor e the person is tried for the offe nse, rega rd l es s of whether an indictment or information has been prese nted ag ainst the person in relation to the offense

. Id

. A.M.’s petition filed with the district court does not seek expunction on this basis. But here , she

m akes the unsupported argument that beca use the expunction order was signe d as “Ag ree d t o b y District Attorney ’s Offic e,” the prosec utor “made the rec ommen d a ti o n ” f o r e xp u n c ti o n . We disag ree that the signature indicating that the prosec utor ag ree d to the expunction orde r was, without more , an aff irmative rec ommendation of expunction to the court under article 55.02(b)( 2). Cf

. Texas Dep’ t of Pub. Safety v. Ibarra , 444 S.W
. 3 d 7 3 5 , 7 3 7 (Tex. App.—Corpus Christi 2014, pet. denied) (af firming expunction order that appellee specific ally pleade d for, and tri a l c o u r t s p e c if ic a ll y gr a nted, under article 55.01(b)( 2) wher e evidenc e showed that prosec utor rec ommended expunction as part of appellee’s plea barg ain); s ee B ex ar Cty. Criminal Dist. Attorney’s Office v. Mayo , 773 S.W .2d 642, 644 (Tex. App.—San Antonio 1989, no writ) (re versing trial court’s order of expunction and

7reje cting appellee ’s contention that district attorney ’s signature indic at i n g ex punction order was

“appr oved” me ant that orde r wa s “a c onsent judg ment” or a pproved a s to form and substanc e). Fur ther, as noted in DPS’s second issue, A. M
. h ad the burden of proving her compliance with all statutory require ments for expunction of criminal rec ords, but she prese nted no evidenc e supporting the district court’ s ex p u n ct i on order

. DPS corr ectly points out that A.M. provided no evi d ence showing that the prosec utor rec ommended expunction to the court in

acc ordanc e with art i cl e 5 5
. 0 1 (b)(2). Cf. Ibarra , 444 S.W .3d at 737 (noting that order of deferr ed adjudication stated that as par t of appellee ’s plea barg ain, prosec utor “re commend[ed] expunction if law allows und er 55.01(b)( 2)”) ; see Ex parte Andrews , 955 S.W .2d 178, 179-80 (Tex. App.—Waco 1997, no pet.) (conc luding that appellee ’s aff idavit and aff

idavit from former district attorney outlining agree ment to expunge rec ords in exchang e for plea of n o co n test was some evidenc e supportingtrial court’ s ag ree d order of expunction). Aside from her verifie d pleading , A.M. provided nothing to car ry her burden of proof

on her petition for expunction. See Ex parte K

. R

. K

. , 4 4 6 S.W .3d at 544 (noting that petitioner

s e e k in g e xp unction order must provide more than just alleg ations in verifie d pleading to car ry burden of proof) ; Texas Dep’ t of Pub. Saf et y v. B o r h a ni , No. 03-08-00142- CV, 2008 Tex. App. L EXI S 7509, at *9 (Tex. App.—Austin Oct. 3, 2008, no pet.) (mem. op.) (conc luding that there was no evidenc e supporting trial court’s expunction order beca use “alleg ations alone in a verifie d petition, afte r bei n g p u t i n issue by a g ener al denial, do not constitute proof of those alleg ations”). The district court’s order , which deter mined that all proce dural and subs t an tive require ments for

8expunction of criminal rec ords wer e met, is not supported by leg ally sufficie nt evidenc e. We sustain

DPS’s second issue. 2
CONCLUSION

We reve rse the district court’s August 17, 2016 Orde r for E x p unction and rende r judgme nt that A.M. take nothingby her pe tition.

J eff Rose, Chief J ustice Be fore Chief J ustice Rose, Jus tices F ield and B ourland Reverse d and Rende red Filed: Mar ch 7, 2018

Having sustained DPS’s first and second issu es , we n ee d not addre ss its rema ining 2 appellate issues. 9