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

Opinion filed August 4, 2011

                                                                       In The

  Eleventh Court of Appeals

                                                                   __________

                                                         No. 11-10-00018-CV

                                                    __________

             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

  M E M O R A N D U M   O P I N I O N   O N   M O T I O N   F O R   R E H E A R I N G

            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]

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[1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.