Opinion
NO. 12-17-00311-CV
04-25-2018
EX PARTE: C.E.A.
APPEAL FROM THE 217TH JUDICIAL DISTRICT COURT ANGELINA COUNTY , TEXAS
MEMORANDUM OPINION
The Texas Department of Public Safety appeals the trial court's order granting an expunction of C.E.A.'s arrest for possession of a controlled substance. DPS presents four issues on appeal. We reverse and render.
BACKGROUND
C.E.A. was arrested on July 1, 2016, and charged with both possession of a controlled substance and "failure to identify fugitive with intent to give false information." Following a jury trial, C.E.A. was found "not guilty" and acquitted of the possession charge. However, C.E.A. pleaded "guilty" to the failure to identify charge, was convicted, and sentenced to sixty days confinement.
In March 2017, C.E.A. filed a petition with the district court to expunge any and all of the records arising from the July 1, 2016 possession charge. He alleged that he was acquitted of the possession charge and that it did not result in a final conviction. DPS filed an answer denying that C.E.A. was entitled to an expunction because he was convicted as a result of the arrest. The court set the petition for hearing on April 13, 2017. The trial court granted the expunction on April 13, 2017. This restricted appeal followed.
The record indicates that a hearing on the petition was set, and the trial court's order states that it heard evidence. However, no reporter's record of a hearing, if any, is included in the record.
EXPUNCTION
In its first issue, DPS contends C.E.A. was not entitled to have his arrest record expunged because the arrest resulted in a final conviction. In its second issue, DPS alleges that the expunction order is supported by legally insufficient evidence. In its third issue, DPS contends the trial court erred by failing to hold a hearing on the petition. And in its fourth issue, DPS argues that, if a hearing was held, C.E.A. failed to have the hearing recorded and the case should then be remanded for a new trial. Standard of Review
A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; Ins. Co. of State of Penn. v. Lejeune , 297 S.W.3d 254, 255 (Tex. 2009). For purposes of a restricted appeal, the face of the record consists of all papers on file in the appeal, including the reporter's record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Flores v. Brimex Ltd. P'ship , 5 S.W.3d 816, 819 (Tex. App.—San Antonio 1999, no pet.).
We review a trial court's order granting or denying a petition for expunction under an abuse of discretion standard. See Heine v . Tex. Dep't of Pub. Safety , 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). A trial court abuses its discretion if it acts "without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W.2d 549, 558 (Tex. 1995). If an expunction ruling turns on a question of law, we review it de novo because a "trial court has no 'discretion' in determining what the law is or applying the law to the facts." Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it misinterprets or misapplies the law. Id. Governing Law
Although the law that governs expunctions is part of the code of criminal procedure, an expunction proceeding is civil in nature and is governed by the rules of civil procedure. See Carson v . State , 65 S.W.3d 774, 784 (Tex. App.—Fort Worth 2001, no pet.). Expunction is not a constitutional or common law right, but purely a statutory privilege. Tex. Dep't of Pub. Safety v. Nail , 305 S.W.3d 673, 675 (Tex. App.—Austin 2010, no pet.). The trial court must strictly comply with statutory requirements, and has no equitable power to extend the clear meaning of the statute. Harris Cty. Dist. Attorney v. Lacafta , 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
Texas Code of Criminal Procedure Article 55.01(a)(2) states, in relevant part, that a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if (1) the person has been released, (2) the charge, if any, has not resulted in a final conviction, (3) the charge, if any, is no longer pending, and (4) there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (West Supp. 2017). "The traditional and primary purpose of the expunction statute is to remove records of wrongful arrests." S.J. v. State , 438 S.W.3d 838, 841 (Tex. App.-Fort Worth 2014, no pet.). Thus, the expunction statute is "arrest-based" and expunction is not available for less than all offenses arising from one arrest. Id. at 844; see BLACK'S LAW DICTIONARY 116, 248, 1110 (8th ed. 2004) (defining an "arrest," in pertinent part, as a "taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge," whereas a "charge" accuses someone of an offense, i.e., a "violation of the law"). In other words, a person is not entitled to have any arrest records expunged under Article 55.01(a)(2) when a charge is dismissed, but that dismissal results in community supervision for any charge arising from the same arrest. S.J., 438 S.W.3d at 845-46 (for petitioner to be entitled to expunction, all charges arising from an arrest must meet requirements of Article 55.01). Analysis
The record establishes that DPS timely filed a notice of restricted appeal, was a party to the underlying lawsuit, did not participate in the hearing, if any, that resulted in the trial court's expunction order, and did not file any postjudgment motions or requests for findings of fact and conclusions of law. See TEX. R. APP. P. 26.1(c), 30; see also Lejeune , 297 S.W.3d at 255; Tex. Dep't of Pub. Safety v. Moore , 51 S.W.3d 355, 357 (Tex. App.—Tyler 2001, no pet.) (DPS, as a state agency with records subject to expunction, is a party to the suit within the meaning of the requirements for a restricted appeal); see generally, Ex parte Hatzis , No. 12-14-00199-CV, 2015 WL 1966668 (Tex. App.—Tyler April 30, 2015, no pet.) (mem. op). Accordingly, we must determine whether error is apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; see also Lejeune , 297 S.W.3d at 255.
To be entitled to expunction under Article 55.01(a)(2), C.E.A. had the burden of showing all of the following requirements: (1) he had been released; (2) the charge, if any, has not resulted in a final conviction; (3) the charge, if any, is no longer pending; and (4) there was no court-ordered community supervision for the offense. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); Ex parte Green , 373 S.W.3d 111, 113 (Tex. App.-San Antonio 2012, no pet.). DPS contends that C.E.A. did not meet the second requirement for expunction of his July 1, 2016 arrest. Specifically, DPS argues that because C.E.A.'s arrest resulted in a final conviction for "failure to identify fugitive with intent to give false information," he is not entitled to an expunction under Article 55.01(a)(2). We agree.
The record shows that C.E.A. was arrested on July 1, 2016, and charged with possession of a controlled substance and "failure to identify fugitive with intent to give false information." It is undisputed that both charges arose from the same arrest. Although he was acquitted of the possession charge, C.E.A. pleaded guilty to the failure to identify charge. He was convicted for that offense and sentenced to sixty days confinement and a $100 fine. Thus, the record shows that the failure to identify fugitive charge resulted in a final conviction. Consequently, because both charges arise from the same arrest and the failure to identify fugitive charge resulted in a final conviction, C.E.A. is not entitled to expunction of any records relating to his July 1, 2016 arrest. See S .J., 438 S.W.3d at 844; Tex. Dep't of Pub. Safety v. G.B.E., 459 S.W.3d 622, 629 (Tex. App.—Austin 2014, pet. denied); In re A.G., 417 S.W.3d 652, 655 (Tex. App.—El Paso 2013, no pet.). For this reason, the trial court abused its discretion by granting C.E.A.'s petition for expunction. See Walker , 827 S.W.2d at 840; see also Heine , 92 S.W.3d at 646. Accordingly, we sustain DPS's first issue and need not address its remaining issues. See TEX. R. APP. P. 47.1.
DISPOSITION
Having sustained DPS's first issue, we reverse the trial court's judgment granting expunction of C.E.A.'s July 1, 2016 arrest and render judgment denying the expunction. Furthermore, pursuant to DPS's prayer for relief, we order all documents that were turned over to the trial court or to C.E.A. be returned to the submitting agencies. See Ex parte Elliot , 815 S.W.2d 251, 252 (Tex. 1991) (reversal of expunction applies to all respondents in trial court, even if they did not participate in appeal).
BRIAN HOYLE
Justice Opinion delivered April 25, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
Appeal from the 217th District Court of Angelina County, Texas (Tr.Ct.No. 2016-0622)
THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, because it is the opinion of this court that there was error in the judgment granting expunction of C.E.A.'s July 1, 2016 arrest, that judgment is reversed and judgment is rendered denying expunction of C.E.A.'s July 1, 2016 arrest. All costs in this cause expended in this court be, and the same are, hereby adjudged against the Appellee, C.E.A., for which let execution issue; and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.