Opinion
No. 08-18-00056-CV
07-22-2019
In the MATTER OF the Expunction of L.R.
ATTORNEY FOR STATE, Jaime E. Esparza, District Attorney, El Paso County Courthouse, 500 E. San Antonio, Suite 201, El Paso, TX 79901. ATTORNEY FOR APPELLANT, Jaime E. Gandara, Chief Public Defender, 500 E. San Antonio, Suite 501, El Paso, TX 79901.
ATTORNEY FOR STATE, Jaime E. Esparza, District Attorney, El Paso County Courthouse, 500 E. San Antonio, Suite 201, El Paso, TX 79901.
ATTORNEY FOR APPELLANT, Jaime E. Gandara, Chief Public Defender, 500 E. San Antonio, Suite 501, El Paso, TX 79901.
Before McClure, C.J., Rodriguez, and Palafox, JJ.
OPINION
GINA M. PALAFOX, Justice
Appellant, L.R., is appealing from an order denying his motion for an expunction following his acquittal of aggravated robbery and unlawful possession of a firearm by a felon. We reverse the order denying the expunction and remand for further proceedings.
In his sole issue, Appellant contends that the trial court erred by denying his request for an expunction of the records related to aggravated robbery and unlawful possession of a firearm charges. On appeal, the State concedes that Appellant is entitled to an expunction, but it argues that the proper remedy is to remand the cause to the trial court for further proceedings.
It is undisputed that Appellant was acquitted of aggravated robbery and unlawful possession of a firearm by a felon, and he filed a motion for an expunction in compliance with Article 55.02, section 2. See TEX.CODE CRIM.PROC.ANN. art. 55.02, § 2. During the hearing on the motion, the State requested that the trial court order that the Police Department and the District Attorney's Office be permitted to retain the records relating to the case because they were needed for the prosecution of the co-defendant. Appellant's attorney argued that if the records were retained that Appellant's name had to be redacted. Finding that granting the expunction but allowing the District Attorney's Office and the Police Department to keep the records would amount to a partial expunction, the trial court denied Appellant's motion.
Generally, an appellate court reviews a trial court's ruling on a petition for expunction under the abuse of discretion standard. See In the Matter of the Expunction of A.G. , 388 S.W.3d 759, 761 (Tex.App.--El Paso 2012, no pet.). In this case, the facts are undisputed and the only question is whether the trial court properly applied the law to the undisputed facts. Therefore, we will engage in a de novo review. See Collin County District Attorney's Office v. Fourrier , 453 S.W.3d 536, 539 (Tex.App.--Dallas 2014, no pet.) (to the extent a ruling on expunction turns on a question of law, the ruling is reviewed de novo because a trial court has no discretion in determining what the law is or applying the law to the facts); Travis County District Attorney v. M.M. , 354 S.W.3d 920, 927 (Tex.App.--Austin 2011, no pet.) (en banc) (op. on reh'g) (de novo standard of review applied when reviewing trial court's legal conclusions).
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 the person is tried for the offense and is acquitted. TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(1)(A). Article 55.02, § 4(a-2)(1) provides:
(a-2) In the case of a person who is the subject of an expunction order on the basis of an acquittal, the court may provide in the expunction order that the law enforcement agency and the prosecuting attorney retain records and files if:
(1) the records and files are necessary to conduct a subsequent investigation and prosecution of a person other than the person who is the subject of the expunction order....
TEX.CODE CRIM.PROC.ANN. art. 55.02, § 4(a-2)(1).
We agree with both Appellant and the State that the trial court erred by denying Appellant's request for an expunction. Further, we agree with the State that the trial court should have also ordered that the records and files necessary for the investigation and prosecution of the co-defendant could be retained by the appropriate law enforcement agencies and prosecuting attorney. The sole issue presented on appeal is sustained.
The parties agree that the cause should be remanded but disagree regarding the precise remedy. Appellant asks that we remand the case to the trial court with instructions to conduct a hearing to determine which records and files are necessary to conduct a subsequent investigation and prosecution of the co-defendant, and to grant an expunction allowing law enforcement agencies and the prosecuting attorney to retain only the records needed for that subsequent investigation and prosecution.
The State, on the other hand, contends that the proper remedy is to remand the case to the trial court for further proceedings to determine whether the criminal investigation and/or prosecution of the co-defendant are still pending. If the investigation and/or prosecution of the co-defendant are still pending, the State argues that the order granting the expunction must include an additional provision that the records are to be retained by the appropriate law enforcement agencies and prosecuting attorney for use in the investigation and prosecution of the co-defendant. See TEX.CODE CRIM.PROC.ANN. art. 55.02, § 4(a-2)(1). If, however, the investigation and prosecution of the co-defendant have concluded, the State asserts that the trial court should enter an order granting the expunction, but allowing the affected agencies to maintain the records related to the co-defendant.
We agree with the parties that it is necessary for the trial court to conduct further proceedings to determine the additional provisions to be included in the order granting the expunction. Accordingly, we reverse the order denying Appellant's motion for an expunction and remand the cause to the trial court with instructions to conduct further proceedings consistent with this opinion, and to enter an order granting the expunction with additional provisions as determined by the trial court.