Texas Department of Public Safety v. Kelly Sowell ( 2011 )

Opinion filed August 4, 2011
In The
Eleventh Court of Appeals
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No. 11-10-00018-CV
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TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
KELLY SOWELL, Appellee
On Appeal from the 335th District Court
Lee County, Texas
Trial Court Cause No. 13823
MEMORANDUM OPINION ON MOTION FOR REHEARING
The Texas Department of Public Safety has filed a motion for rehearing in this restricted
appeal from an order expunging all records related to the arrest of Kelly Sowell for the
misdemeanor offense of possession of marihuana. In the motion, the DPS asserts that there is
error on the face of the record based upon documents attached to the DPS’s answer, which
renders the evidence legally insufficient so support the expunction. As we recognized in our
original opinion, had those documents been introduced into evidence, Sowell may not have been
entitled to an expunction. However, the DPS did not appear for trial, and nothing in the record
indicates that the documents attached to the DPS’s answer were offered into evidence. Neither
pleadings nor attachments to pleadings are evidence unless they are offered and admitted as
evidence by the trial court. Ceramic Tile Int’l, Inc. v. Balusek, 137 S.W.3d 722, 724-25 (Tex.
App.—San Antonio 2004, no pet.); Gowan v. Tex. Dep’t of Criminal Justice, 99 S.W.3d 319,
322 (Tex. App.—Texarkana 2003, no pet.); State v. Herron, 53 S.W.3d 843, 847 (Tex. App.—
Fort Worth 2001, no pet.); see also City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979) (pleadings do not constitute summary judgment proof). Without a record of the
evidence presented at the hearing, we cannot hold that the evidence is legally insufficient to
support the expunction.
The motion for rehearing is denied.
PER CURIAM
August 4, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1
1
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
2