Opinion
No. 08-19-00003-CV
02-24-2021
In the MATTER OF the Expunction of S.E.J.
OPINION
Appellant, S.E.J., appeals an order denying her petition for expunction of records relating to her arrest for driving while intoxicated ("DWI"). In the trial court, Appellees, represented by the El Paso County Attorney's Office on appeal, argued that S.E.J. waived her right to an expunction through her prior agreement with the State of Texas in which she was allowed to enter into a "Pre-Trial Diversion" ("PTD") program for her DWI in exchange for the waiver. Nonetheless, on appeal, S.E.J. argues that she was entitled to an expunction where her waiver encompassed only one specific subsection of the expunction statute and did not encompass any of the other available routes for an expunction, where Appellees consequently failed to present legally sufficient evidence for its affirmative defense of waiver, and where she presented legally sufficient evidence in support of her petition for expunction.
As represented in their trial court pleadings, Appellees are the El Paso County Sheriff's Office, El Paso County Attorney's Office, El Paso County Clerk's Office, District Attorney's Office, District Clerk's Office, Records Management and Archives, West Texas Community Supervision and Corrections Department, El Paso County Court Administration, and Jail Magistrate.
We hold that the language of S.E.J.'s waiver unambiguously covered all rights to an expunction under Article 55.01 of the Texas Code of Criminal Procedure and that the evidence was legally sufficient to prove she waived those rights. Accordingly, we affirm the trial court's order denying her expunction.
I. BACKGROUND
On October 22, 2018, S.E.J. filed a petition to expunge all records relating to her arrest for DWI pursuant to Texas Code of Criminal Procedure article 55.01(a)(2)(B), based on the lapse of the limitations period for her offense without any resulting conviction for it. In response, Appellees filed an answer that generally denied S.E.J.'s petition and that also contended she was not entitled to an expunction because she waived her right to one as part of an agreement she made with the State to enter into a PTD program for her DWI.
The trial court held a hearing on S.E.J.'s petition. At the hearing, only two items of evidence were admitted: (1) a motion to dismiss S.E.J.'s DWI; and (2) a document titled, "WAIVER OF SPEEDY TRIAL AND WAIVER OF RIGHT OF EXPUNCTION " (the "Waiver"). The motion to dismiss recited that the State moved to dismiss S.E.J.'s DWI charge based on her successful completion of PTD. In its entirety, the body of the Waiver recited as follows:
I understand that I have a right to speedy trial as provided by the Texas Code of Criminal Procedure (T.C.C.P.) Article 1.05, Article I, Section 10 Texas Constitution ; and the 6th Amendment of the United States Constitution.
I further understand that I have a right, pursuant to Article 55.01 T.C.C.P., to have my criminal record related to these charges expunged if I successfully complete the Pre-Trial Diversion (PTD) Program.
Pursuant to Article 1.14 T.C.C.P., and as a condition of my participation in the PTD Program, I hereby agree to voluntarily waive the foregoing rights set out by Articles 1.05 and 55.01 T.C.C.P.
Additionally, S.E.J. asked the trial court to take judicial notice "that the limitations period on this [DWI] expired on December 31, 2015." However, the record does not reflect that the trial court took judicial notice, as requested.
Although not admitted at the hearing, Appellees attached to its answer a copy of the charging information for S.E.J.'s DWI that reflected her commission of the offense on December 31, 2013.
At the hearing, both parties adopted the same arguments made in their pleadings. Furthermore, S.E.J. responded to Appellees' waiver argument by asserting that the Waiver narrowly encompassed only the specific route to expunction based upon successful completion of a pretrial intervention program – under what is now Article 55.01(a)(2)(A)(ii)(c) – and not any of the multitude of other routes to expunction available under Article 55.01.
Ultimately, the trial court entered an order denying S.E.J.'s petition for expunction, and S.E.J. subsequently filed her notice of appeal.
II. ISSUES ON APPEAL
S.E.J. challenges the trial court's order denying her petition for expunction in three issues all relating to whether the trial court properly found that she waived her right to an expunction through her PTD agreement. In the order she presented them, S.E.J. argues in her three issues that the trial court abused its discretion in denying her petition for expunction because: (1) she proved her entitlement to an expunction under Article 55.01(a)(2)(B) of the Code of Criminal Procedure – i.e., a right to expunction where the statute of limitations for her offense expired; (2) the evidence was legally insufficient to prove that she waived her right to an expunction through her PTD agreement; and (3) the Waiver in her agreement encompassed only a waiver under what is now Article 55.01(a)(2)(A)(ii)(c) – i.e., a right to expunction when a pretrial intervention program is successfully completed – and not under any other section of the expunction statute, such as under Article 55.01(a)(2)(B). Appellees make a three-part response to these issues and argues that the trial court did not abuse its discretion because: (1) Appellees proved that S.E.J. waived all her possible expunction rights under Article 55.01 ; (2) S.E.J. "failed to lay the predicate for the statute of limitations argument" where she failed to present evidence showing her arrest date and failed to ensure the trial court took judicial notice of that date; and (3) estoppel by contract prevented S.E.J. from seeking an expunction where she entered into a PTD agreement.
We note Appellant does not raise any issue as to (1) the voluntariness of the agreement; or (2) whether the State may condition pretrial diversion on the waiver of expunction.
We turn to S.E.J.'s third issue first before addressing Issue Two. We find Appellant's second and third issue are dispositive in regards to Issue One, therefore we do not reach S.E.J.'s first issue.
III. DISCUSSION
A. Standard of Review
Generally, we review a trial court's ruling on an expunction petition under an abuse-of-discretion standard. Ex parte E.H. , 602 S.W.3d 486, 489 (Tex. 2020). To the extent the ruling depends 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. Id. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Cire v. Cummings , 134 S.W.3d 835, 838-39 (Tex. 2004).
But if an appellant is challenging the legal sufficiency of the evidence supporting the trial court's implied findings that she failed to establish the statutory requirements under Article 55.01 or that appellee established its affirmative defense of waiver, we must review the implied findings under the traditional legal sufficiency standard rather than the abuse-of-discretion standard. Matter of J.S. , 511 S.W.3d 597, 600 (Tex.App.—El Paso 2015, pet. denied), citing In re S.D. , 349 S.W.3d 76, 79-80 (Tex.App.—El Paso 2010, no pet.). When an appellant challenges the legal sufficiency of the evidence supporting an adverse finding on which the opposing party had the burden of proof, the appellant must demonstrate that there is no evidence, or merely a scintilla of evidence, to support the adverse finding. Matter of Expunction of E.L. , 504 S.W.3d 908, 909 (Tex.App.—El Paso 2016, no pet.), citing City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 2005). Anything more than a scintilla of evidence is legally sufficient to support the trial court's finding on the affirmative defense of waiver. E.L. , 504 S.W.3d at 910. To meet this standard, the evidence must rise to a level that would enable reasonable and fair-minded people to reach the finding under review. Id.
B. Expunction Proceedings Generally
An expunction order requires governmental agencies to return, remove, delete, or destroy all records of a person's arrest and generally permits the person to deny the occurrence of the arrest and the existence of the expunction order. See TEX.CODE CRIM.PROC.ANN. arts. 55.02 – 55.03 ; E.H. , 602 S.W.3d at 489. Although the expunction statute appears within the Code of Criminal Procedure, an expunction proceeding is civil in nature. E.H. , 602 S.W.3d at 489. An expunction is a statutory privilege and not a constitutional or common law right. Id. Thus, the trial court has no equitable power to grant an expunction should the petitioner fail to establish such a right by demonstrating strict compliance with the conditions imposed by Article 55.01. In re A.G. , 388 S.W.3d 759, 761 (Tex.App.—El Paso 2012, no pet.).
C. Issue Three: Whether the Waiver Encompassed all Rights under Article 55.01
We first address S.E.J.'s third appellate issue contending that the Waiver did not preclude all her rights under the expunction statute. We address this issue first because Appellees' affirmative defense of waiver would preclude S.E.J.'s expunction only if the language of the Waiver broadly encompassed all rights under Article 55.01, rather than under only a sole subsection of the statute.
This Court has previously treated an agreement to waive a right to expunction as a contract. See Expunction of Arnold , 34 S.W.3d 583, 585 (Tex.App.—El Paso 2000, no pet.). An unambiguous contract is to be construed by a court as a matter of law. Id. A contract is ambiguous if its meaning is uncertain or doubtful or if it is reasonably susceptible to more than one meaning. Id. Here, both parties treat the Waiver as an unambiguous contract. We likewise find that the language of the Waiver is unambiguous. See id. at 585-86 (where this Court found no ambiguity in the language of an expunction waiver agreement with essentially the same language at issue in this case). Thus, we will proceed to construe its language as a matter of law. See id.
Appellees argue that the Waiver's language "is clear that she was signing a waiver to all her expunction rights under Article 55.01." We agree based on its unequivocal language. First, the title of the Waiver itself heralds that it was, without qualification, a "WAIVER OF RIGHT TO EXPUNCTION[.]" Second, the body of the Waiver reflects an unqualified waiver of all rights to an expunction where it recited both: (1) "I further understand I have a right, pursuant to Article 55.01 T.C.C.P.;" and (2) "I hereby agree to voluntarily waive the foregoing rights set out by Article [ ] ... 55.01 T.C.C.P. " [Emphasis added]. Nothing in the Waiver's language references specific subsections of the statute – as opposed to referencing the general expunction rights under the statute as a whole – or favors a more constricted reading of the specific rights to be waived under Article 55.01. Thus, we hold that the Waiver encompassed all rights to an expunction falling within Texas Code of Criminal Procedure article 55.01. Cf. J.S. , 511 S.W.3d at 599-601 (rejecting appellant's arguments that he established a right to expunction under Article 55.01(a)(2)(B) and that appellees failed to prove he had waived that right where appellees proved he waived his right to an expunction through a PTD agreement waiver with the same essential language at issue in this case); Arnold , 34 S.W.3d at 586-87 (where this Court, in the context of appellant's argument that his waiver "does not reflect his intent to forego his expunction rights[,]" held that appellant clearly waived those rights under an agreement with the same essential language at issue in this case: "We can contemplate no clearer exhibition and manifestation of an intent to waive expunction rights than placing one's signature directly under the following sentence which appears at the top of a document entitled ‘WAIVER OF SPEEDY TRIAL AND WAIVER OF RIGHT EXPUNCTION AND VOLUNTARY AGREEMENT TO PARTICIPATE IN THE PRE TRIAL DIVERSION PROGRAM’: ‘I hereby agree to voluntarily waive the foregoing rights as set out by Articles ... 55.01, T.C.C.P., ... as a condition of my participation in the P.T.D. Program.’ ").
On appeal, S.E.J. makes multiple arguments that we should nonetheless construe the breadth of the Waiver narrowly. First, S.E.J. contends that the language of the Waiver accomplished only S.E.J.'s waiver of the following specific rights: (1) the right to a speedy trial under Article 1.05 of the Texas Code of Criminal Procedure ; (2) the right to a speedy trial under Section 10 of the Texas Constitution; (3) the right to a speedy trial under the 6th Amendment of the United States Constitution; and (4) the right to have her record expunged specifically based on successful completion of the PTD program, as opposed to other possible bases under the expunction statute. Although we, too, perceive that separate, distinct rights were specifically enumerated in the language of the Waiver, we disagree that any language constricts waiver of the right to expunction only to the subsection allowing expunctions based on successful completion of a PTD program. We acknowledge that the Waiver recites, "I further understand that I have a right ... to have my criminal record related to these charges expunged if I successfully complete the Pre-Trial Diversion (PTD) Program." However, this "right" within this sentence was described as one "pursuant to Article 55.01 T.C.C.P." and not only to the particular subsection allowing expunction based on a PTD program. Furthermore, as discussed above, the Waiver's language as a whole demonstrates an intention that S.E.J. would waive all rights "pursuant to Article 55.01" and as "set out by Article[ ] ... 55.01[,]" rather than only a specific, narrow right under that article.
S.E.J. also argues that, had the State intended to make PTD contingent on waiving any possible right to expunction, the State's waiver could have recited words such as "I waive any and all statutorily created rights to expunction[,]" "I waive any and all of the statutorily created rights currently existing or hereinafter created[,]" or even "I forever waive any right to expunction." While the addition of such language could be helpful, it does not change the fact that there is no language in the Waiver that favors the narrow interpretation argued by S.E.J. on appeal here, as we have observed above.
Finally, S.E.J. also contends that the Waiver's language reciting "I have a right ... to have my criminal record related to these charges expunged if I successfully complete the Pre-Trial Diversion (PTD) Program" does not encompass the statute-of-limitations route to expunction where that language is phrased in present tense – "I have" – and where she could not have had a right to an expunction under the statute-of-limitations route because the limitations period on her offense had not yet expired at the time she signed the Waiver. However, the recitation "I have a right" is made contingent on some future event within the same sentence where it also recites, "if I successfully complete...." Thus, we reject this final argument, as well.
Having found that the unambiguous language of the Waiver covers the right to an expunction across all the possible avenues within Article 55.01, we overrule S.E.J.'s third issue presented for review. Accordingly, we turn to S.E.J.'s second issue contending that the evidence was legally insufficient to prove Appellees' affirmative defense of waiver, as our resolution of this issue would obviate the need to address whether S.E.J.'s evidence was otherwise legally sufficient for an expunction under Article 55.01(a)(2)(B).
D. Issue Two: Whether the Evidence was Legally Insufficient to Prove Waiver
It is well-established that a criminal defendant can waive any rights secured to him by law. TEX.CODE CRIM.PROC.ANN. art. 1.14(a). This includes the statutory right to an expunction. J.S. , 511 S.W.3d at 599-601. Waiver is an affirmative defense, and the party asserting it has the burden to both plead and prove it. See TEX.R.CIV.P. 94 ; A.G. , 388 S.W.3d at 762 n.1.
In this case, Appellees' pleading raised the affirmative defense of waiver by arguing that "[p]etitioner waived the right to an expunction" based on the Waiver that was part of her PTD agreement. Furthermore, as detailed above, the Waiver itself was admitted into evidence at the hearing on S.E.J.'s petition for expunction and showed that she agreed to waive her right to an expunction under any of the avenues within Article 55.01. Thus, Appellees fulfilled both requirements of pleading and proving the affirmative defense of waiver. See TEX.R.CIV.P. 94 ; A.G. , 388 S.W.3d at 762 n.1. And as Appellees presented ample evidence to support the trial court's implied finding of waiver that contravened S.E.J.'s claim for an expunction, we hold that the evidence was legally sufficient to support the trial court's denial of S.E.J.'s expunction based on the affirmative defense of waiver. See E.L. , 504 S.W.3d at 910 (observing that anything more than a scintilla of evidence is sufficient to support the trial court's finding on the affirmative defense of waiver). The trial court thus properly denied S.E.J.'s petition for expunction.
Therefore, we overrule S.E.J.'s second issue presented for review, as well. Having done so, we need not address S.E.J.'s first issue contending that she presented legally sufficient evidence for an expunction under Article 55.01(a)(2)(B) nor the State's alternative argument that S.E.J. failed to present any competent evidence to prove her statute-of-limitations expunction argument.
IV. CONCLUSION
The trial court's judgment is affirmed.
CONCURRENCE
JEFF ALLEY, Justice
I join the Court's judgment but for a somewhat different reason. As the Court notes, no issue is raised as to the voluntariness of the agreement. Nor is any issue raised as to whether the State may condition pretrial diversion on the waiver of expunction. Instead, the only issue before us is the interpretation of the waiver, which the Court correctly interprets as we would any other contractual agreement. Appellant agreed to this provision:
I further understand that I have a right, pursuant to Article 55.01 T.C.C.P., to have my criminal record related to these charges expunged if I successfully complete the Pre-Trial Diversion (PTD) Program.
Pursuant to Article 1.14 T.C.C.P., and as a condition of my participation in the PTD Program, I hereby agree to voluntarily waive the foregoing rights set out by Articles 1.05 and 55.01 T.C.C.P.
When interpreting contractual provisions, we start with the language that the parties chose. See, e.g., Murphy Expl. & Prod. Co.–USA v. Adams , 560 S.W.3d 105, 110 (Tex. 2018) (we "ascertain the true intentions of the parties as expressed in the instrument," beginning with the contract's express language). We give contract language its plain, grammatical meaning unless it "would clearly defeat the parties' intentions." See, e.g., Anadarko Petroleum Corp. v. Thompson , 94 S.W.3d 550, 554 (Tex. 2002) (citation omitted). Another rule of interpretation requires a court to harmonize all the terms of the agreement so as not to render any term meaningless. FPL Energy, LLC v. TXU Portfolio Mgt. Co., L.P. , 426 S.W.3d 59, 63 (Tex. 2014) ; Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983) ; Universal C.I.T. Credit Corp. v. Daniel , 150 Tex. 513, 243 S.W.2d 154, 158 (1951). Yet, if we accepted the premise of Appellant's argument, one core section of the waiver set out above would be a nullity.
The expunction statute can be divided into two broad sections. Article 55.01(a)(1) addresses expunctions when a person is tried for the arrested offense. That subsection obviously would not apply here. Article 55.01(a)(2) addresses the other possible dispositions of an arrest short of a trial: i.e. the State never files formal charges, the State filed charges but later dismisses them, or as here, the accused enters and successfully completes a pretrial diversion program. The statute contains detailed prerequisites for each scenario. Relevant here, one provision specifically addresses a person's ability to obtain an expunction by completing a pretrial diversion program. Id. at (a)(2)(A)(ii)(c). No doubt, Appellant expressly waived that right.
Another subsection of Article 55.01(a)(2) allows for expunction when "prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired." Id. at (a)(2)(B). Appellant contends she did not waive this statutory right. But if Appellant is correct, then the waiver of any expunctions following successful completion of the pretrial diversion becomes a nullity. There are one of two outcomes for the pretrial diversion program. First, Appellant could have failed to abide by the terms of the program, in which case there would be no basis for an expunction in any event. But second, if Appellant successfully finished the program thereby disposing of the charge, Appellant, or any person similarly situated, would always be entitled to an expunction, because limitations will eventually run. A construction that preserves expunctions once the statute of limitations runs would thus render the pretrial diversion waiver meaningless. Because we cannot construe the waiver to render terms meaningless, I would reject Appellant's construction for that reason.
Appellant was charged with simple DWI, a Class A misdemeanor. Tex.Penal Code Ann. § 49.04(d). The period of limitations runs in two years from the date of the offense. Tex.Code Crim.Proc.Ann. art. 12.02.
With these comments, I concur in the judgment.