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In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-16-00106-CV

____________________

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

V.

J.S.H., Appellee

________________________________________________________________________

On Appeal from the 253rd District Court 

Liberty County, Texas

Trial Cause No. CV-1509671

________________________________________________________________________

MEMORANDUM OPINION 

The Texas Department of Public Safety (DPS) brings this restricted appeal 

from an order expunging J.S.H.’s criminal records related to two charges of driving 

while intoxicated with a child under fifteen years old. 

Background

On December 23, 2007, J.S.H was arrested in cause number CR27217 on 

two counts of driving while intoxicated with a child under fifteen years of age. On 
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July 15, 2015, J.S.H. filed a petition to expunge the records relating to his arrest

because the charges had been dismissed, and he requested that the following 

entities that he believed had records subject to expunction be served with notice of 

the petition: (1) Liberty Police Department; (2) Liberty County District Attorney’s 

Office; (3) Texas Department of Public Safety, Crime Records Department; (4) 

Liberty County District Clerk’s Office; (5) Liberty County Sheriff’s Office; (6) 

Liberty County Clerk’s Office; (7) Liberty County Adult Probation; (8) Texas 

Department of Public Safety, Expunctions; and the (9) Federal Bureau of 

Investigations. In a letter filed and dated September 28, 2015, and addressed to the 

Liberty County 253rd Court Coordinator, J.S.H.’s counsel stated the following:

This letter is to confirm that a submission hearing has been 

scheduled for Friday, October 9, 2015 at 9:00 a.m. in the 253rd District 

Court for submission of the proposed Order for Expunction in the 

above referenced matter.

By copy of this letter, I am notifying all interested parties of 

this setting.

This letter also serves as Lead Document for efiling the 

Proposed Order for Expunction to be presented to the Court for

consideration on October 9, 2015.

The letter noted that a copy (“cc”) of the letter was provided to the “First Assistant 

District Attorney” and J.S.H. No other interested parties are listed in the “cc” 

section of the letter. 
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The trial court held a hearing on the expunction petition on October 9, 2015. 

J.S.H. appeared personally with his attorney at the hearing and his attorney stated 

that J.S.H.’s expunction petition was “uncontested[,]” that all parties were given 

notice, and that no parties filed a response to the petition. That same day, the trial 

court signed an Order for Expunction and ordered the entities named in the 

expunction petition, as well as the Dayton Police Department, to return all records 

and files concerning J.S.H.’s arrest in CR27217 to the trial court, or if not practical, 

to destroy such records or files. In accordance with the expunction order, the 

district clerk delivered, by certified mail, return receipt requested, a copy of the 

expunction order to the entities listed in the order. The appellate record reflects that 

DPS received a certified copy of the expunction order on October 21, 2015. On 

April 7, 2016, the DPS filed its notice of restricted appeal.

Issue on Appeal

In one appellate issue, DPS argues the trial court erred in ordering an 

expunction because DPS did not receive notice of the expunction hearing, DPS did 

not waive the notice requirement, and DPS was entitled to notice. J.S.H. did not 

file an appellate brief.
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Applicable Law and Standard of Review

We review a trial court’s ruling on a petition for expunction under an abuse 

of discretion standard. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 

(Tex. App.—Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep’t of Pub. 

Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). Expunction is 

neither a constitutional nor a common-law right, but rather a statutory privilege. In 

re D.W.H., 458 S.W.3d 99, 104 (Tex. App.—El Paso 2014, no pet.). A statutory 

expunction proceeding is a civil rather than a criminal proceeding, and the 

petitioner has the burden of proving that he has strictly complied with the 

requirements of the expunction statute. Houston Police Dep’t v. Berkowitz, 95 

S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Collin Cty. 

Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.—

Dallas 2005, no pet.).

Restricted Appeal

We must first address whether DPS may complain of the expunction order in 

a restricted appeal. To successfully attack an order by restricted appeal, the 

appealing party must show: (1) he filed a notice of restricted appeal within six 

months after the judgment or complained-of order was signed; (2) he was a party 

to the underlying lawsuit; (3) he did not participate either in person or through 
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counsel in the hearing that resulted in the judgment or complained-of order, 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); Tex. R. App. P. 30; see also Tex. R. 

App. P. 26.1(c).

The trial court signed the expunction order on October 9, 2015. DPS filed its 

notice of restricted appeal on April 7, 2016, within the six-month deadline set by 

Rule 26.1(c). See Tex. R. App. P. 26.1(c) (“in a restricted appeal, the notice of 

appeal must be filed within six months after the judgment or order is signed[]”).

DPS was a party entitled to appeal the expunction order. See Tex. Code Crim. 

Proc. Ann art. 55.02, § 3(a) (West Supp. 2016) (An agency protesting an 

expunction order may appeal the judge’s decision in the same manner as in other 

civil cases.). DPS was named in the expunction order as an agency or entity that 

might have records or files subject to expunction. All agencies that have records a 

petitioner wants expunged are entitled to notice so they may appear and present 

any objections at the hearing. See id. art. 55.02, § 2(c) (West Supp. 2016) (trial 

court shall give reasonable notice of the hearing to each official, agency, or other 

governmental entity named in the petition). Accordingly, DPS is considered a party 

entitled to a restricted appeal from the expunction order. 
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The record demonstrates that DPS did not participate in any hearing that 

resulted in the expunction order and it did not file any post-judgment motions or 

request findings of fact and conclusions of law. The only notice addressed to DPS 

that appears in the appellate record is the notice of the expunction order given by 

the clerk of court after entry of the order.

We next address whether error is apparent on the face of the record. DPS 

argues that error is apparent on the face of the record because the trial court failed 

to notify DPS of the expunction hearing. The expunction procedures provided in 

article 55.02 are mandatory. Tex. Dep’t of Pub. Safety v. Deck, 954 S.W.2d 108, 

112 (Tex. App.—San Antonio 1997, no writ). “If the record does not indicate that 

the agency was notified in accordance with the statute, then the record reflects a 

proceeding in violation of the statute and the expunction order must be set aside.” 

Id. (citing Rodriguez v. T.M.B., 812 S.W.2d 449, 450-51 (Tex. App.—San Antonio 

1991, no writ) (reversing trial court and setting aside expunction order after finding 

that hearing took place without notice to any respondent); Tex. Dep’t of Pub. Safety 

v. Riley, 773 S.W.2d 756, 758 (Tex. App.—San Antonio 1989, no writ) (setting 

aside expunction order because record did not reflect agencies had been notified of 

hearing and because judge violated thirty-day waiting period)).
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We find nothing in the record to reflect that DPS was notified of the hearing 

held on October 9, 2015, and nothing in the record reflects that DPS waived the 

notice requirement. Although there is a letter from J.S.H.’s counsel addressed to 

the Liberty County District Attorney’s Office, nothing in the record before us 

indicates that the Court gave notice to the DPS as required under art. 55.02, Sec. 

2(c). Error is apparent from the face of the record because the record does not 

reflect that DPS was notified of the October 9, 2015 hearing.1 This violation of 

mandatory procedures necessitates the setting aside of J.S.H.’s expunction order. 

DPS’s issue is sustained. Because we have determined that the trial court erred in 

granting the petition for expunction, we reverse and set aside the expunction order 

and remand to the trial court for further proceedings consistent with this opinion.

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REVERSED AND REMANDED.

 

 

_________________________

 LEANNE JOHNSON

 Justice

 

1

 DPS contends that it never received notice of the hearing. Appellee did not 

file any response or appellate brief. When an appellee does not file a brief, as here, 

the appellate court may accept any factual statement made in the appellant’s brief 

as true. See Tex. R. App. P. 38.1(g).

2 When an expunction order is reversed and set aside, it is reversed and set 

aside as to all agencies in possession of relevant criminal records. Ex parte Elliot, 

815 S.W.2d 251, 252 (Tex. 1991). 
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Submitted on October 3, 2016

Opinion Delivered August 3, 2017

Before McKeithen, C.J., Horton and Johnson, JJ.