Ex Parte Graves
04-16-00570-CV
| Tex. App. | Jul 26, 2017Background
- Joshua Michael Graves filed a verified petition to expunge records of his 1996 DWI arrest.
- Texas Department of Public Safety (DPS) answered, generally denying and asserting Graves was ineligible because the arrest led to a conviction and court-ordered community supervision.
- On March 10, 2016, the trial court signed an order granting expunction.
- The official court reporter informed the appellate court that no reporter’s record exists for any hearing on that date.
- DPS timely filed a restricted appeal asserting multiple errors, including that Graves was ineligible and that no hearing transcript was made.
- The Fourth Court of Appeals reversed and remanded based on the absence of a reporter’s record, following its precedent.
Issues
| Issue | Plaintiff's Argument (Graves) | Defendant's Argument (DPS) | Held |
|---|---|---|---|
| 1. Eligibility for expunction given a conviction and community supervision | Graves sought expunction of his 1996 arrest records | DPS argued Graves is ineligible because arrest resulted in conviction and community supervision | Not resolved on merits due to lack of reporter’s record; review not possible on face of record |
| 2. Legal sufficiency of evidence supporting expunction | Graves relied on his verified petition and court order | DPS contended evidence is legally insufficient, especially given general denial | Cannot determine without reporter’s record; appellate court did not address sufficiency on the merits |
| 3. Whether trial court erred by granting expunction without holding a hearing | Graves obtained an order expunging records (court order references art. 55 and Tex. Alc. Bev. Code) | DPS asserted the court either held an unreported hearing or issued order without hearing, which is improper | Presence or absence of a hearing could not be established on the record; appellate review precluded by missing reporter’s record |
| 4. Effect of absence of a reporter’s record on restricted appeal | Graves relied on the record on file (no reporter’s record provided) | DPS asserted absence of reporter’s record prevents review and requires reversal/remand | Held for DPS: because no reporter’s record exists and DPS complained, the order is reversed and the cause remanded for new proceedings |
Key Cases Cited
- Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254 (Tex. 2009) (elements required for a restricted appeal)
- Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269 (Tex. 1997) (face of the record includes reporter’s record for restricted appeals)
- Flores v. Brimex Ltd. P’ship, 5 S.W.3d 816 (Tex. App.—San Antonio 1999) (review of legal sufficiency in restricted appeal context)
- Tex. Dep’t of Pub. Safety v. Ibarra, 444 S.W.3d 735 (Tex. App.—Corpus Christi 2014) (remand not required where record shows no evidence presented at expunction hearing)
- Ex parte K.R.K., 446 S.W.3d 540 (Tex. App.—San Antonio 2014) (applicant must present evidence beyond a verified petition when DPS files a general denial)
- Findlay v. State, 9 S.W.3d 397 (Tex. App.—Houston [14th Dist.] 1999) (distinguishing expunction availability for DUI vs. DWI convictions)