Texas Supreme Court Settles Question About Restricted Appeals

By Daniel J. Olds

Last week, the Texas Supreme Court settled a long-standing question about restricted appeals in Texas. A restricted appeal, as provided in Texas Rule of Appellate Procedure 30, is a special type of appeal that an appellant may bring if: (1) the appeal was filed within six months of the final order being signed; (2) they were a party to the underlying lawsuit; (3) they did not participate in the hearing that resulted in the judgment complained of (and did not timely file any post-trial motions); and (4) there is error on the face of the record.

In Ex parte E.H., a trial court granted E.H. an expunction of his criminal record. The Department of Public Safety, which is a statutory party to all expunction cases but which did not attend the hearing, filed a restricted appeal and argued that the trial court misinterpreted the expunction statute when it granted E.H. an expunction. The Fort Worth Court of Appeals determined that the Department had satisfied the first three elements of a restricted, but held that the there was no error on the face of the record because the trial court did not misinterpret the expunction statute. However, instead of affirming the judgment of the trial court, the court of appeals dismissed the appeal for want of jurisdiction. The Texas Supreme Court reversed that aspect of the court of appeals’ decision, holding that only the first three elements of a restricted appeal are jurisdictional; once a party satisfies the first three elements, the court of appeals must determine the merits of the case just like an ordinary appeal.

What are the consequences of this decision? It is unclear what would have happened if the Texas Supreme Court had decided that the error-on-the-face-of-the-record requirement was also jurisdictional. Indeed the respondent in this case, E.H., stated in their brief that they really did not care how the Court decided that issue one way or another; in E.H.’s mind, they either should win because the judgment of the trial court should be affirmed, or because the court of appeals never had jurisdiction in the first place. Regardless, we now know for sure that, in order to vest an appellate court with jurisdiction to consider a restricted appeal, an appellant need only satisfy the first three elements; once those are satisfied, the court should consider the merits of the appeal.

To read more about restricted appeals, check out Daniel Olds’s article in the UNT Dallas Law Review.