Summary
holding that petitioner could not expunge two charges that were dismissed because they were part of the same plea agreement as a third charge to which he pleaded guilty
Summary of this case from Ex parte R.P.G.P.Opinion
No. 08-16-00116-CV
06-19-2019
In the MATTER OF the Expunction of J.G.
ATTORNEY FOR THE STATE/APPELLANT: Hon. Jo Anne Bernal, County Attorney, 500 E. San Antonio, Room 503, El Paso, TX 79901. ATTORNEY FOR APPELLEE: Hon. Adolfo Lopez, The Law Office of Adolfo D. Lopez, 1231 E Missouri Ave, El Paso, TX 79902.
ATTORNEY FOR THE STATE/APPELLANT: Hon. Jo Anne Bernal, County Attorney, 500 E. San Antonio, Room 503, El Paso, TX 79901.
ATTORNEY FOR APPELLEE: Hon. Adolfo Lopez, The Law Office of Adolfo D. Lopez, 1231 E Missouri Ave, El Paso, TX 79902.
Before McClure, C.J., Rodriguez, and Palafox, JJ.
OPINION
YVONNE T. RODRIGUEZ, Justice
The County of El Paso appeals an order expunging the arrest record of applicant J.G. The County contends J.G. is ineligible for an expunction of records related to two charges dismissed as part of a plea deal because, as part of that deal, J.G. pleaded to a single lesser offense arising from the same arrest and served a term of community supervision. We agree. We will reverse the trial court's judgment and render judgment denying the expunction application.
BACKGROUND
On November 4, 1999, J.G. was arrested by the El Paso Police Department. The State brought three charges stemming from this arrest: two counts of felony injury to a child (against his stepson) in Cause No. 990D04944 and one count of misdemeanor assault family violence (against his wife) in Cause No. 990D013400.
J.G. ultimately pleaded guilty in Cause No. 990D04944 in the 243rd District Court to a lesser charge of assault on one count and received deferred adjudication, which he successfully completed. The trial court's judgment noted that that J.G. was pleading guilty to "ASSAULT A LESSER INCLUDED OFFENSE TPC 22.01 (COUNT I)." A motion to dismiss Count II in Cause No. 990D04944 filed by the District Attorney's Office states that the reason for the dismissal is "OTHER" with the annotation "convicted on other [ILLEGIBLE] of this case." The next day, the State dismissed the outstanding assault family violence charge in Cause No. 990D013400—the case in which J.G. allegedly assaulted his wife—with the notation that "[t]he said Defendant was convicted on another case."
We believe this word to be "count."
J.G. later filed two petitions seeking expunction of records. The two petitions were consolidated into the current action. The trial court granted an expunction order and issued findings of fact and conclusions of law. As is relevant to this appeal, the trial court held that: (1) there was no evidence of a plea bargain in this case; (2) J.G. completed community service as to the misdemeanor assault charge; (3) that misdemeanor assault charge did not result in a conviction; (4) J.G. was entitled to an expunction as to the misdemeanor assault charge because there was no final conviction and the statute of limitations had run; (5) J.G. was entitled to an expunction as to the felony count of injury to a child that was dismissed because the statute of limitations had run; and (6) J.G. was entitled to an expunction of the misdemeanor assault charge because the charge had been dismissed and the statute of limitations had run.
The County appealed. DISCUSSION
Standard of Review
We review the trial court's decision on an expunction application for abuse of discretion. In re M.C. , 412 S.W.3d 48, 52 (Tex.App.—El Paso 2013, pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably without reference to guiding rules and principles of law, or if it fails to analyze or apply the law correctly. Id. We use the legal sufficiency standard to test the trial court's findings of fact, and we review the trial court's legal conclusions de novo. In re S.D. , 349 S.W.3d 76, 79 (Tex.App.—El Paso 2010, no pet.).
An applicant bears the burden of proving he is entitled to an expunction. In re A.G. , 388 S.W.3d 759, 761 (Tex.App.—El Paso 2012, no pet.). The right to an expunction is statutory, not inherent; thus, the contours of the expunction statute set the limits of under what circumstances relief may be granted. In re M.C. , 412 S.W.3d at 52. "[C]ourts have no inherent authority or equitable power to expunge criminal records." Id. All statutory provisions are mandatory and exclusive and all conditions must be met before a person is entitled to an expunction. In the Matter of Expunction of K.G. , 504 S.W.3d 911, 913 (Tex.App.—El Paso 2016, no pet.).
Analysis
In two appellate issues, the County argues that the trial court erred by granting the expunction because J.G. pleaded guilty to one charge in exchange for the dismissal of other charges as part of plea deal that included a grant of community supervision by the trial court. As such, J.G.'s arrest record may not be expunged.
We agree that the trial court could not grant an expunction under these circumstances.
J.G. filed an expunction application under Article 55.01(a)(2), the subsection applicable when charges are either dismissed or subject to a plea bargain. See State v. T.S.N. , 547 S.W.3d 617, 623 (Tex. 2018). The particular provision states, in relevant part:
(a) 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:
...
(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Chapter 42A for the offense, unless the offense is a Class C misdemeanor....
TEX.CODE CRIM.PROC.ANN . art. 55.01(a)(2).
J.G. does not contest that he is ineligible to have the records related to the assault charge for which he pleaded guilty expunged, and in his brief he makes clear that he is not seeking expunction of the reduced assault charge. Although there is technically no conviction in this case because J.G. completed community supervision, the fact that the judge ordered community supervision precludes eligibility for an expunction under current law. See id. (listing the lack of court-ordered community supervision as a prerequisite to expunction in dismissal/plea bargain cases).
Still, J.G. maintains that even if the community supervision order on one charge precludes the granting of an expunction as to that charge, he may still obtain an expunction as to the other charges that were dismissed—in J.G.'s view, there is no final conviction as to those charges, the charges are no longer pending, and the judge did not impose court-order community supervision as to those charges. The County counters that Subsection (a)(2) frames expunction relief as being arrest-based and not charge-based, meaning that receiving community supervision as to one charge precludes the courts from granting an expunction as to other charges stemming from the same arrest.
The Texas Supreme Court has recently expressly declined to address whether Subsection (a)(2) is arrest-based or charge-based, though the Court, in interpreting the expunction provisions related to cases that go to trial, did hold that when an applicant is convicted on one charge but acquitted on another, Subsection (a)(1) explicitly permits partial expunction as to the acquitted count. See T.S.N. , 547 S.W.3d at 623. Our sister courts are split on the issue. A majority have held that the expunction statute is arrest-based, meaning that an applicant may not obtain an expunction of records unless all charges stemming from the arrest meet the Subsection (a)(2). See , e.g. , Ex parte S.D. , 457 S.W.3d 168, 172 (Tex.App.—Amarillo 2015, no pet.) ; In re Expunction , 465 S.W.3d 283, 292 (Tex.App.—Houston [1st Dist.] 2015, no pet.) ; S.J. v. State , 438 S.W.3d 838, 845-46 (Tex.App.—Fort Worth 2014, no pet.) ; Tex. Dept. of Pub. Safety v. Dicken , 415 S.W.3d 476, 481 (Tex.App.—San Antonio 2013, no pet.) (concluding that the statute "does not address or make allowances for expunction of individual offenses stemming from an arrest" and that "the expunction statute was not intended to allow an individual who is arrested, and enters a plea of guilty to an offense arising from the arrest, to expunge the arrest and all court records concerning the arrest" since by pleading guilty to a charge an applicant admits "his arrest was not wrongful"); Ex parte Davila , No. 13-15-00202-CV, 2016 WL 872997, at *5 (Tex.App.—Corpus Christi Feb. 18, 2016, no pet.) (mem. op.)(statute is arrest-based and does not permit expunction when applicant pleaded guilty to one charge in exchange for a dismissal); Ex parte M.G. , No. 10-13-00021-CV, 2013 WL 3972225 (Tex.App.—Waco Aug. 1, 2013, no pet.) (mem. op.)(applicant not entitled to expunction of DWI records where she was initially charged with DWI but ultimately pleaded guilty to charge of obstructing a highway passageway). Under this theory, conviction or community supervision on one charge would preclude record expunction for any other charge arising from the same arrest.
T.S.N. was decided following the close of briefing in this case.
J.G. relies heavily on a 1993 case in which the First Court of Appeals case held that an order expunging charges that were not prosecuted was proper when the applicant agreed to plead guilty to a single charge. J.G. asks this Court to adopt E.E.H. 's logic. However, the First Court of Appeals has recognized that its holding in Ex parte E.E.H. no longer remains good law in light of nine intervening legislative amendments to the text of the expunction statute, including a 2011 change that "essentially rewrote Article 55.01(a)(2) to prohibit expunction unless the applicant has been acquitted or pardoned or the applicant has been released and at least one of three further conditions is met." In re Expunction , 465 S.W.3d 283, 289 (Tex.App.—Houston [1st Dist.] 2015, no pet.) (op. on reh'g).
Following the Texas Supreme Court's decision in T.S.N. , the Fourteenth Court of Appeals recently held that expunction is charge-based, "at least when the charges are unrelated," meaning that a court may partially expunge arrest records related to dropped charges even if the defendant pleaded guilty to another charge that directly arose from the same arrest. Ex parte N.B.J. , 552 S.W.3d 376, 383-84 (Tex.App.—Houston [14th Dist.] 2018, no pet.) (expunction of individual charges permitted). Critically, N.B.J. involved an applicant who had been arrested on one charge and who while in custody was arrested again on a warrant for a second charge that had occurred months earlier. Id. at 378-79. The applicant pleaded guilty to the first charge and the State dropped the second charge. Id. at 379. The Fourteenth Court held that the applicant could obtain an expunction on the second charge since although there was essentially one unitary arrest underlying two charges, the second charge was wholly unrelated to the first charge to which the applicant pleaded guilty. Id. at 383-84.
Finally, in a case pre-dating T.S.N. involving a DWI charge that was dismissed in exchange for a guilty plea to the lesser offense of obstructing a highway entrance, the Third Court of Appeals rendered judgment denying an expunction, but the court explicitly withheld judgment on whether Subarticle (a)(2) is charge-based or arrest-based, stating that the charges at bar were closely-related and part of a plea agreement and that "we need not decide whether a petitioner may expunge records related to a single charge arising from a multi-charge arrest when the charge for which expungement is sought is wholly unrelated to any final conviction arising from the arrest." [Emphasis in original]. Tex. Dept. of Pub. Safety v. G.B.E. , 459 S.W.3d 622, 629 n.3 (Tex.App.—Austin 2014, pet. denied).
Although we have never expressly decided whether the expunction statute is offense-based or arrest-based, we have previously held that "the primary purpose of the expunction statute is to permit the expunction of wrongful arrest records" and that "[w]hen a defendant admits guilt to an offense arising out of an arrest, he concedes that the arrest was not wrongful for purposes of the expunction statute." In re O.R.T. , 414 S.W.3d 330, 335 (Tex.App.—El Paso 2013, no pet.).
We find the related-charge distinctions drawn in N.B.J. and G.B.E. to be instructive here. Like G.B.E. , this case involved the dismissal of charges as part of a plea bargain. The Third Court held that expunction was improper because the charges stemmed from the same arrest and were disposed of as part of the same plea bargain. Here, all charges stemmed from the same arrest, J.G. pleaded guilty to a reduced charge, the State dismissed the remaining charges, and the dismissal forms all note the reason for dismissal as being J.G.'s conviction in another case. Like the court in G.B.E. , we will also withhold judgment on the ultimate question of whether Subsection (a)(2) is charge-based or arrest-based because the results of this case would be the same under an arrest-based or a charge-based approach. Even our sister courts that either explicitly or implicitly recognize a charge-based framework allowing for partial expunctions also distinguish related charges from unrelated charges. If the charges are related, i.e., they not totally separate from one another, see, e.g., N.B.J. , 552 S.W.3d at 383-84 (partial expunction permissible where there was one arrest for two crimes committed at separate times), or they are dealt with as part of the same plea deal, see, e.g. , G.B.E. , 459 S.W.3d at 629, then even under a charge-based framework, pleading guilty or obtaining community supervision as to one charge prevents expunction as to other related charges that were otherwise disposed of in a plea deal.
J.G.'s guilty plea in exchange for community supervision on one reduced charge and the dismissal of other related counts precluded his eligibility for an expunction of his arrest record. Because the trial court granted an expunction, we must reverse. CONCLUSION
Having sustained the County's appellate issues, we reverse the judgment of the trial court and render judgment denying an expunction.