Reversed and Rendered and Opinion Filed April 10, 2014 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-13-00476-CV 

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant 

V. 

RAYMOND TERRELL RADWAY, Appellee 

On Appeal from the 397th Judicial District Court 

Grayson County, Texas 

Trial Court Cause No. CV-12-1244 

MEMORANDUM OPINION 

Before Justices Moseley, Francis, and Lang 

Opinion by Justice Francis 

The Texas Department of Public Safety brings this restricted appeal of the trial court’s 

expunction order in favor of Raymond Terrell Radway. In two issues, DPS contends we must 

reverse the trial court’s order because Radway was not entitled to an expunction or, alternatively, 

because there is no reporter’s record. We reverse the trial court’s order and render judgment 

denying Radway’s petition for expunction. 

To successfully attack an order by restricted appeal, DPS must show it was a party who 

did not participate either in person or through counsel in the hearing that resulted in the judgment 

complained of, it filed a notice of appeal within six months after the order was signed, and error 

is apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30. As a State agency with 

records subject to expunction, DPS is a party to the suit within the meaning of the requirements 
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of a restricted appeal. See TEX. CODE CRIM. PROC. ANN. art. 55.02, 2(c-1); Tex. Dept. of Pub. 

Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.―Dallas 2008, no pet.). 

 In this case, the record shows DPS filed an answer to Radway’s petition for expunction 

on October 5, 2012. Although it received notice of the hearing, DPS did not participate either in 

person or through counsel in the expunction hearing and did not file any post-judgment 

proceedings, such as a motion for new trial. Thus, DPS meets the first requirement for raising a 

restricted appeal. 

The expunction order was signed October 9, 2012, and DPS filed its notice of restricted 

appeal April 11, 2013, within the six-month deadline provided by rule 26.1(c). Because DPS 

timely filed its notice of restricted appeal, it meets the second requirement for raising a restricted 

appeal. We now turn to whether error is apparent on the face of the record. 

In a restricted appeal, we are limited to considering only the face of the record, but our 

scope of review is otherwise the same as that in an ordinary appeal; thus, we review the entire 

case. Jacobs, 250 S.W.3d at 210. Our review of the entire case encompasses the review of legal 

and factual insufficiency claims. See id. 

In its first issue, DPS argues error exists because the record shows Radway pleaded guilty 

to possession of less than 2 ounces of marijuana, a class B misdemeanor. We agree. 

Radway’s original amended petition asserted he was entitled to expunction under article 

55.01(a)(2) of the code of criminal procedure. That article provides a person who has been 

placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor 

is entitled, under certain conditions, to expunction of all records and files relating to the arrest. 

TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2013). To be entitled to expunction, 

Radway had to establish he had been released and the charge, if any, did not result in a final 

conviction and was no longer pending and there was no court-ordered community supervision 
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under article 42.12 for the offense, unless the offense was a class C misdemeanor. See TEX.

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

A review of the record shows Radway was charged with possession of less than two 

ounces of marijuana, a class B misdemeanor. After Radway pleaded guilty, the trial court found 

him guilty and assessed punishment at 180 days in Grayson County jail, probated for 180 days. 

The face of the record establishes Radway was not entitled to expunction because he pleaded 

guilty and was found guilty of a class B misdemeanor. Because DPS established error apparent 

on the face of this record, we sustain its first issue. In light of our disposition, we need not 

address the remaining issue. 

We reverse the trial court’s order granting expunction and render judgment denying 

Radway’s petition for expunction. 

130476F.P05 

 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

TEXAS DEPARTMENT OF PUBLIC 

SAFETY, Appellant 

No. 05-13-00476-CV V. 

RAYMOND TERRELL RADWAY, 

Appellee 

 On Appeal from the 397th Judicial District 

Court, Grayson County, Texas 

Trial Court Cause No. CV-12-1244. 

Opinion delivered by Justice Francis, 

Justices Moseley and Lang participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial court is 

REVERSED and judgment is RENDERED that: 

Raymon Terrell Radway’s petition for expunction is DENIED. 

 It is ORDERED that appellant TEXAS DEPARTMENT OF PUBLIC SAFETY recover 

its costs of this appeal from appellee RAYMOND TERRELL RADWAY. 

Judgment entered this 10th day of April, 2014. 

/Molly Francis/ 

MOLLY FRANCIS 

JUSTICE