Ex Parte: Virginia Lynn Bearce-Bellow v. Texas Dept of Public Safety--Appeal from 219th Judicial District Court of Collin County (memorandum opinion )

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REVERSF and RFNI)ER; Opinion issued February 7, 2013 In The Qtnitrt uf Appia1s iftI! Hitrirt uf cxaa at Dat1a; No. 05-12-00662-CV EX PARTE VIRGiNIA LYNN BEARCE-BELLOW On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-03109-2011 MEMORANDUM OPINION Beibre Justices Moselev. Francis. and Lang Opinion By Justice Francis The Texas Department of Public Safety brings this restricted appeal of an expunction order in favor of Virginia Lynn Bearce-Bellow. In three issues, DPS contends (1) Bearce-Bellow is not entitled to have her record expunged because she served a term of deferred adjudication as a result of the arrest, (2) the trial court abused its discretion in ordering expunction because DPS did not receive notice of the hearing, and (3) the case must be remanded for a new trial because there is no reporter s record. We reverse the trial courf s order and render judgment denying Bearce-Bellows petition for expunction. We first address whether DPS may complain of the expunction order in a restricted appeal. To successfully attack an order by restricted appeal, the complaining party 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 Tix. R. Ape. P. 26.1(c). 30. An agency protesting an expunction order may appeal the trial court s decision in the same manner as in other civil cases. TEx. CODE CIuM. PRoc. ANN. art. 55.02, § 3(a) (West Supp. 2012). All law enforcement agencies that may have records a petitioner wants expunged are entitled to be represented by counsel at an expunction hcaring. See Id. art. 55.02. § 2(c 1); Ta Dep ¢I of Pub. Safely v. Jacobs. 250 S.W.3d 209.210 (Tex. App. DaIIas 2008, no pet.). As a State agency with records subject to expunction, DPS is a party to the suit within the meaning ofthe requirements of a restricted appeal. Jacobs, 250 S.W.3d at 210. In this case, the record shows DPS was served with a copy ofthe petition for expunction in November2011. three and one-halfmonths after the petition was filed, but did not file a written response. did not receive notice of the hearing, and did not participate either in person or through counsel in the expunction hearing. Thus. DPS meets the first requirement for raising a restricted appeal. The expunction order was signed December 8, 2011, and DPS filed its notice ofappeal May 17.2012. within the six-month deadline contemplated in rule 26.1(c). Because DPS timely filed its notice of restricted appeal, it meets the second requirement for raising a restricted appeal. We next turn to whether error is apparent on the face of the record. In a restricted appeal, we are limited to considering only the face ofthe record, but our scope of review is otherwise the same as that in an ordinary appeal; thus, we review the entire case. Iii Our review of the entire case encompasses the review of legal and factual insufficiency claims. See Id. In its first issue, DPS argues error because the record shows Bearce-Bellow pleaded guilty to the lesser included offense of assault a Class A misdemeanor, and served a term of deferred adjudication as a result of her arrest. We agree. 2 Article 55.01 of the code of criminal procedure provides a person who has been placed under a custodial or nuncustodial arrest for commission of ci [her a felony or misdemeanor is entitled, under certain conditions, to expunction of all records and tiles relating to the arrest. [ic. ( ODE CRII. PROC. Ayy. art. 55.01 (West Supp. 2012). To he entitled to expunction under the facts of this case. Bearce ilelIow had to establish she has been released and the charge, if any, has not resulted in a ii nat conviction and is no longer pending and there was no courtordered community supervision under Article 42. 12/or ihe o,fense, unless the offense is a Class C misdemeanor. PROC. ANN. TEN. Conu CRIM. art. 55.0 1(a)(2) (emphasis added). A review of the record shows Bearce-Bellow was arrested and charged with aggravated assault with a deadly weapon. The order of deferred adjudication in the record shows she pleaded guilty to the lesser included offense of assault. a Class A misdemeanor. and was placed on deftrred adjudication for one year. In her petition. Bearce Bellow alleged she was placed on dePrred adjudication probation br the lesser included offense of assault by threat or contact, a Class C misdemeanor. The ftice of the record establishes Bearce-Bellow was not entitled to expunction because she pleaded guilty to a Class A misdemeanor and the trial court ordered community supervision under article 42.12 of the code of criminal procedure. See Jacobs, 250 S.W.3d at 211. 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 two issues. We reverse the trial court s order granting expunction and renderj ucigment denying Bearce Bellow s petition for expunction. /Molly Francis/ MOLLY FRANCIS J Ii STICE I 20662F.P05 ..p ¢ ; QuiirI of Appcals FiftI! Jistrirt of Jixas tt Oi11as JUDGMENT EX PARTE VIRGINIA LYNN BEARCEBELLOW No. 05-12-00662-CV Appeal from the 219th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 219-03109-2011). Opinion delivered by Justice Francis, Justices Moseley and Lang participating. In accordance with this Court s opinion of this date, we REVERSE the trial court s judgment and RENI)ER judgment that the petition for expunction is DENIED, We ORDER the Texas Department of Public Safety recover its costs of this appeal from Virginia Lynn Bearce-Bellow. Judgment entered February 7. 2013. /Molly Francis/ MOLLY FRANCIS JUSTICE

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