Tx DPS v. Dahlquist (Tex.App.- Houston [1st Dist.] Feb. 4, 2010)(Keyes)
(
expunction reversed)(restricted appeal)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by
Justice Evelyn Keyes     
Before Justices Keyes, Sharp and Massengale
01-08-00559-CV  Texas Department of Public Safety v. Sharon R. Dahlquist    
Appeal from 1st District Court of Jasper County
Trial Court Judge:  Judge Joe Bob Golden

MEMORANDUM OPINION

     Appellant, the Texas Department of Public Safety (DPS), appeals an order expunging appellee Sharon R.
Dahlquist’s arrest for theft. Footnote Appellee filed her petition for expunction on December 13, 2007, and the
trial court granted the petition on January 18, 2008. DPS filed a restricted appeal. In its sole issue, DPS
contends that appellee was not entitled to expunction under article 55.01 of the Texas Code of Criminal
Procedure because she received deferred adjudication probation for the theft offense that she sought to
expunge.

   We reverse the judgment of the trial court and render judgment denying Dahlquist’s petition for expunction
of her theft charge.

Background

   On December 13, 2007, Dahlquist filed a petition to expunge her criminal record of a charge based on the
citation she received for theft, a class “A” misdemeanor, Footnote on October 14, 1986. On November 13,
1986, Dahlquist accepted a plea agreement that placed her on deferred adjudication for three months. The
record does not include a final judgment for the theft charge, but Dahlquist did attach a copy of the county
judge’s deferred adjudication order to her petition for expunction.

   Dahlquist’s petition provided notice to the: (1) county clerk of Jasper County, Texas; (2) Texas DPS; (3)
Criminal District Attorney, Steve Hollis; and (4) Jasper County Sheriff, Ronnie McBride. The trial court set
Dahlquist’s petition for a hearing. DPS and the District Attorney filed original answers claiming that Dahlquist
was not entitled to have her record expunged because she had been placed on deferred adjudication. On
January 18, 2008, Dahlquist appeared at the hearing pro se, and no other party appeared. The hearing was
not transcribed by a court reporter, and the trial court did not make findings of fact or conclusions of law. That
same day, the trial court signed an order of expunction granting Dahlquist’s petition. On June 17, 2008, DPS
filed a restricted appeal challenging the trial court’s decision to grant Dahlquist’s petition.

Restricted Appeal

     DPS first argues that it is entitled to review by restricted appeal. To prevail on restricted appeal, an
appellant must establish the following: (1) he filed the notice of the restricted appeal within six months after the
judgment or order appealed from was signed; (2) he was a party to the underlying suit; (3) he did not timely file
a post-judgment motion or request for findings of fact and conclusions of law, or notice of appeal; (4) he did
not participate, either in person or though counsel, in the actual trial of the case; (5) the trial court erred; and
(6) the error is apparent from the face of the record. Tex. R. App. P. 26.1(c), 30; Wright Bros. Energy, Inc. v.
Krough, 67 S.W.3d 271, 273 (Tex. App.—Houston [1st Dist.] 2001, no pet.). The face of the record consists of
all the papers on file in the appeal, including any reporter’s record. Binder v. Joe, 193 S.W.3d 29, 32 (Tex.
App.—Houston [1st Dist.] 2006, no pet.).

   The record reflects that DPS satisfied the first four requirements. We now determine whether the trial court
erred and whether that error is apparent from the face of the record.Entitlement to Expunction

   DPS argues that the trial court erred in granting Dahlquist an expunction of records related to her theft
charge because she received deferred adjudication probation as a consequence of that arrest.

   To be entitled to an expunction, Dahlquist had the burden of proving that all of the statutory requirements
had been satisfied. See Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon 2006); Harris County Dist. Attorney v.
Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no pet.). “The trial court must strictly
comply with the statutory procedures for expunction, and it commits reversible error when it fails to comply.”
Tex. Dep’t of Pub. Safety. v. Fredricks, 235 S.W.3d 275, 281 (Tex. App.—Corpus Christi 2007, no pet.); see
also Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
(“The trial court must strictly comply with the statutory requirements, and has no equitable power to extend the
protections of the expunction statute beyond its stated provisions.”).

   In relevant part, article 55.01 of the Texas Code of Criminal Procedure provides that a person is entitled to
an expunction of an arrest record if:

 (1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:
. . .
(B) 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 any offense other than
a Class C misdemeanor. . . .

Tex. Code Crim. Proc. Ann. art. 55.01.

   Here, Dahlquist was neither acquitted by the trial court nor convicted and subsequently pardoned.
Therefore, she was required to show that each of the conditions in article 55.01(2) existed, including that there
was no court ordered community supervision. See id. art. 55.01(2)(B). Dahlquist acknowledged in her petition
for expunction that she “was placed on a deferred adjudication order of three month[’s] probation,” and she
attached a copy of the deferred adjudication order to her petition. Deferred adjudication is a form of
community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5 (Vernon 2006); see also Houston v.
State, 201 S.W.3d 212, 225 n.3 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (stating that deferred
adjudication probation is one of three forms of probation available under article 42.12 of the Code of Criminal
Procedure). Thus, Dahlquist was not entitled to the expunction, and the trial court committed reversible error
by failing to strictly comply with the expunction statute. See Tex. Code Crim. Proc. Ann. art. 55.01; Fredricks,
235 S.W.3d at 281.

   We conclude that DPS has shown that the trial court erred and that the error was apparent from the face of
the record. See Tex. R. App. P. 26.1(c), 30; Wright Bros. Energy, Inc., 67 S.W.3d at 273.

   We sustain DPS’s sole issue.

Conclusion

   We conclude that DPS has met the requirements for review by restricted appeal of the expunction of the
records for Dahlquist’s arrest for theft. We reverse the judgment of the trial court and render judgment
denying Dahlquist’s petition for expunction of her 1986 theft charge.

                                                      
Evelyn V. Keyes

                                                      Justice

Panel consists of Justices Keyes, Sharp, and Massengale.