Opinion
No. 05-10-01598-CV
02-08-2012
EX PARTE RICHARD LYNN CREEKS
AFFIRM; Opinion issued February 8, 2012
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. X07-733-I
MEMORANDUM OPINION
Before Justices Morris, Francis, and Lang-Miers
Opinion By Justice Francis
Richard Lynn Creeks appeals the trial court's summary judgment in favor of the Dallas County District Attorney's Office, denying his motion for expunction of records relating to four convictions. In four issues, appellant claims the evidence is legally and factually insufficient to support the trial court's judgment. We affirm.
Appellant filed his motion for the expunction of one felony conviction and three misdemeanor convictions. The State filed a general denial and a traditional motion for summary judgment. The State attached certified copies of three judgments and a computer printout of remaining misdemeanor case. The trial court granted the motion for summary judgment.
In four issues, appellant claims the evidence is legally and factually insufficient to support the trial court's judgment and he was entitled to expunction for the four convictions under article 55.01(a). After reviewing the record and the applicable law, we cannot agree.
The State was entitled to summary judgment if it established there was no issue of material fact and appellant was not entitled to expunction as a matter of law. See Tex. R. Civ. P. 166a(c). A person who has been placed under a custodial or noncustodial arrest for commission of a felony or misdemeanor offense is entitled to have all records and files relating to the arrest expunged if he meets certain statutory requirements. Tex. Code Crim. Proc. Ann. art. 55.01 (West Supp. 2011). Article 55.01 provides a person who has been placed under a custodial or noncustodial arrest for the commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if he is tried for the offense for which he was arrested and is (1) either acquitted by the trial court (with certain exceptions not applicable here) or (2) convicted and subsequently pardoned. Id. art. 55.01(a)(1). Alternatively, a person is entitled to expunction of all records and files relating to the arrest if he has been released and the charge, if any, has not resulted in a final conviction, is no longer pending, and there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor. Id. art. 55.01(a)(2).
A statutory expunction proceeding is civil in nature, and the burden of proving compliance with the statutory conditions rests with the petitioner. T.C.R. v. Bell County Dist. Attorney's Office, 305 S.W.3d 661, 663 (Tex. App.-Austin 2009, no pet.); Tex. Dep't of Public Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.-Houston [14th Dist.] 2008, no pet.). All of the statutory provisions are mandatory and exclusive, and the petitioner is entitled to expunction only when all statutory conditions have been met. J.H.J., 274 S.W.3d at 806. The trial court has no equitable power to allow expunction where it is not allowed by statute. Id.
The State filed its motion for summary judgment, stating appellant was not entitled to expunction because he did not meet the statutory requirements. The State attached certified copies of the judgments in three cases: cause number C73-6518-KL in which appellant pleaded guilty to theft over $50, was assessed punishment at five years in prison, probated for five years; cause number M78-03400-A in which appellant pleaded guilty to theft and was assessed fifteen days in county jail; and cause number M78-03343-C in which appellant pleaded guilty to possession of less than two ounces of marijuana and was assessed punishment at one day in jail. In addition, the State attached a computer printout from the Dallas County Clerk's office showing the file in appellant's remaining case, cause number MA80-42378-F, had been destroyed in accordance with the local government code. The printout shows appellant was charged with DWI and pleaded guilty; the trial court assessed punishment at thirty days in jail, probated for two months.
Appellant filed a response to the State's motion but did not challenge the State's evidence nor did he attach evidence to raise a fact issue. Because the State established as a matter of law appellant had been convicted in all four cases, appellant did not meet his burden of showing he met the statutory conditions for expunction of his records. The trial court did not err in granting the State's motion for summary judgment.
We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
101598F.P05