NUMBER 13-17-00636-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TEXAS DEPARTMENT OF

PUBLIC SAFETY, Appellant,

v.

CYNTHIA D. CLARK, Appellee.

On appeal from the 329th District Court

of Wharton County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Benavides

Memorandum Opinion by Justice Benavides

By four issues, which we address as three, appellant, the Texas Department of 

Public Safety (the Department), appeals an order expunging all files and records relating 

to appellee Cynthia Clark’s offense of exploitation of a child. See TEX. PENAL CODE ANN. 

§ 32.53 (West, Westlaw through 2017 1st C.S.). The Department argues that: (1) the trial 

court misinterpreted the expunction statute in granting the expunction; (2) Clark failed to 

present legally sufficient evidence showing she was entitled to an expunction; (3) the trial 
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court erred because it did not hold a hearing or in the alternative, erred by not having the 

hearing transcribed. We reverse and render judgment denying Clark’s petition for 

expunction.

I. BACKGROUND

Clark was originally arrested and charged with exploitation of a child, a third-degree 

felony, and theft of property between fifty dollars and five hundred dollars, a Class B 

misdemeanor. See id. §§ 32.53, 31.03 (West, Westlaw through 2017 1st C.S.). In Clark’s 

petition for expunction, filed on October 11, 2016, she stated that the exploitation of a child 

charge was “dismissed or quashed on September 14, 2012.” See TEX. CODE CRIM. PROC.

ANN. art. 55.01 (West, Westlaw through 2017 1st C.S.) (expunction statute). However, the 

Department pointed out in its answer, filed on December 14, 2016, that Clark pleaded 

guilty pursuant to a plea bargain on the theft charge and was sentenced to twelve months 

deferred adjudication on October 17, 2012. Both charges arose out of the same 

transaction and arrest.

The clerk’s record contains a letter from Clark to the Department confirming a 

hearing on the petition for expunction on May 18, 2017. However, no reporter’s record of 

the proceeding was created.1 The Department did not participate in the hearing, file any 

post-judgment motions, or request any findings of fact or conclusions of law. See PikeGrant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam) (requirements for restricted 

 

1

 The official court reporter for the 329th Judicial District Court filed an affidavit with this Court in 

which she states that no reporter’s record was made of the hearing on Clark’s petition for expunction, and 

therefore, we are unable to conclusively verify that the Department did not participate in the hearing. 

However, the Department acknowledges in its appellate brief that it did not participate in the hearing, and 

we take the stipulation as true since this is undisputed by Clark. See Pike-Grant v. Grant, 447 S.W.3d 884, 

886 (Tex. 2014) (per curiam) (“For over half a century, we have required courts to liberally construe the nonparticipation requirement for restricted appeals in favor of the right to appeal.”). Furthermore, we note that 

the trial court’s docket entries on May 18, 2017, just state “Order of Expunction.” 
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appeal). The trial court granted Clark’s petition on May 18, 2017, finding that Clark “is 

entitled to expunction as provided by Article 55.01(a)(2)(A), Texas Code of Criminal 

Procedure.” The Department filed its notice of restricted appeal.

II. RESTRICTED APPEAL

A. Standard of Review

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 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 face

of the record. Pike-Grant, 447 S.W.3d at 886; Alexander v. Lynda’s Boutique, 134 S.W.3d 

845, 848 (Tex. 2004).

B. Applicable Law and Discussion
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To be entitled to a restricted appeal, the Department must meet the criteria related 

to a restricted appeal. We agree the Department filed a notice of restricted appeal within 

six months of the judgment and that it was a party to the underlying lawsuit, thereby 

meeting the first two prongs required. The third prong required the Department to show it 

did not participate in the hearing, file any post-judgment motions, or request findings from 

the trial court. See Pike-Grant, 447 S.W.3d at 886. 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 third prong is also met 

despite the Department filing an answer to Clark’s petition—the Department did not 

participate in any hearing for the expunction order, file any post-judgment motion, or 

request findings of fact or conclusions of law. See, e.g., Vega, 510 S.W.3d at 547–48 

(“We conclude the Department [met the third requirement] because even though it filed an 

answer in response to [the] petition, it did not participate in the hearing on [the] petition 

that resulted in the expunction order.”). 

Having concluded the Department meets the first three requirements, we now turn 

to whether error is apparent on the face of the record. 

III. CLARK NOT ENTITLED TO EXPUNCTION

By its first two issues, the Department argues that Clark was not entitled to an 

expunction. It alleges that Clark served a term of community supervision from a charge 

arising out of her arrest. 

A. Standard of Review
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We review a trial court’s ruling on a petition for expunction for an abuse of discretion. 

Id. at 548. To the extent the court’s ruling on an expunction petition turns on a question of 

law, we review that ruling de novo. Id.

Because this is a restricted appeal, our review is limited to the face of the record. 

Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam). The requirement that 

error be apparent from the face of the record means that “error that is merely inferred will 

not suffice.” Ginn, 282 S.W.3d at 431. With this limitation, our scope of review is otherwise 

the same as in an ordinary appeal. Vega, 510 S.W.3d at 548. 

B. Applicable Law

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 TEX. CODE CRIM. PROC. ANN. art. 55.01; 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. Vega, 510 S.W.3d at 548. 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. 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. 

Id. 
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The Department’s issue requires us to interpret the expunction statute. Statutory 

interpretation is a question of law that we review de novo. City of Rockwall v. Hughes, 

246 S.W.3d 621, 625 (Tex. 2008). Our goal in interpreting a statute is to give effect to the 

legislature's intent as expressed by the language in the statute. Id. We assume that the 

statute's words bear their “plain and common meaning” unless the Legislature provided a 

definition or another meaning that is apparent from the context. Id. at 625–26. We 

consider the statute as a whole, reading each word and phrase in context, and attempt to 

give effect to every part. Mid–Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 

(Tex. 2007). If the meaning of statutory language is clear and unambiguous, we may not 

resort to rules of construction or extrinsic aids. City of Rockwall, 246 S.W.3d at 626. 

However, we may also consider the object the Legislature sought to attain by enacting the 

statute. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 87 (Tex. 2006) (citing TEX. GOV'T 

CODE ANN. § 311.023(1) (West, Westlaw through 2017 1st C.S.)).

Article 55.01(a) of the expunction statute governs a petitioner’s right to expunction 

and provides, in relevant part, that:

(a) A person who has been placed under a custodial or noncustodial 

arrest for commission of either a felony or misdemeanor is entitled to 

have all records and files relating to the arrest expunged if:

. . .

(2) the person has been released and the charge, if any, has not 

resulted in a final conviction and is no longer pending and there 

was no court-ordered community supervision under Article 

42.12 for the offense, unless the offense is a Class C 

misdemeanor, provided that:

(A) regardless of whether any statute of limitations exists for 

the offense and whether any limitations period for the 

offense has expired, an indictment or information 
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charging the person with the commission of a 

misdemeanor offense . . . .

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A). 

C. Discussion

To establish her right to expunction under the statute, Clark must prove that: (1) 

she has been released; (2) the charge, if any, has not resulted in a final conviction; (3) the 

charge, if any, is no longer pending; (4) there was no court-ordered community 

supervision; and (5) other statutory requirements are not at issue here. See TEX. CODE 

CRIM. PROC. ANN. art. 55.01(a)(2)(A); see also Tex. Dep’t of Pub. Safety v. G.B.E., 459 

S.W.3d 622, 626 (Tex. App.—Austin 2014, pet. ref’d). 

Clark’s petition requested expunction of the exploitation of a child charge, but did 

not mention the theft that arose from the same transaction. However, as the Department 

points out, the separate offense of theft arose out of the same arrest. The statute makes 

no provision for expunging only records related to a particular charge that resulted from 

an arrest. Vega, 510 S.W.3d at 550; see Ex parte Davila, No. 13-15-00202-CV, 2016 WL 

872997, at *4 (Tex. App.—Corpus Christi 2016, no pet.) (mem. op.). “If the Legislature 

wished to permit persons to expunge records related to a particular charge resulting from 

an arrest without expunging all records of the arrest itself, we presume that it would have 

included language with that meaning in the statute.” Vega, 510 S.W.3d at 550. Section 

(a)(2) of the expunction statute treats an arrest as the unit of expunction and provides relief 

relating to arrests rather than charges.” See id. at 551. 

Clark cannot satisfy the fourth requirement she had to prove. Clark pleaded guilty 

to the theft charge and served a term of deferred adjudication probation, making her
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ineligible for an expunction under the statue. See TEX. CODE CRIM. PROC. ANN. art. 

55.01(a)(2). We sustain the Department’s first two issues.

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IV. CONCLUSION

We reverse the granting of Clark’s expunction and render judgment denying Clark’s 

petition for expunction.

GINA M. BENAVIDES,

Justice

Delivered and filed the

2nd day of August, 2018.

 

2

 Since these issues are dispositive, we need not address the Department’s additional issues raised 

in this appeal. See TEX. R. APP. P. 47.1.