Opinion
NO. 12-17-00376-CV
04-25-2018
EX PARTE: N.E.
APPEAL FROM THE 349TH JUDICIAL DISTRICT COURT ANDERSON COUNTY , TEXAS
MEMORANDUM OPINION
The Texas Department of Public Safety appeals the trial court's order granting an expunction of N.E.'s arrest for "attempted prohibited substance in a correctional facility." In a single issue, DPS contends the trial court should not have granted the expunction. We reverse and render.
BACKGROUND
N.E. was arrested on August 25, 2009, and subsequently charged with "prohibited item in a correctional facility" that was alleged to have occurred on or about March 31, 2009. Pursuant to a plea agreement, N.E. pleaded "guilty" and the court sentenced her to three years deferred adjudication community supervision. N.E. successfully completed all three years of her community supervision.
In May 2017, N.E. filed a motion to expunge all criminal records and files relating to the March 31, 2009 charge and deferred adjudication. In her motion, she alleged that she successfully completed her pretrial agreement with the Anderson County District Attorney's Office. Following a hearing in which DPS did not participate, the trial court granted N.E.'s petition. This restricted appeal followed.
EXPUNCTION
In its only issue, DPS contends N.E. was not entitled to have her arrest record expunged because she served community supervision as a result of the arrest. 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 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), N.E. had the burden of showing all of the following requirements: (1) she 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); TEX. PENAL CODE ANN. § 38.11(g) (West Supp. 2017) (prohibited item in correctional facility is a third degree felony); Ex parte Green , 373 S.W.3d 111, 113 (Tex. App.—San Antonio 2012, no pet.). DPS contends that N.E. did not meet the fourth requirement for expunction. Specifically, DPS argues that because N.E. served community supervision, she is not entitled to an expunction under Article 55.01(a)(2). We agree.
The record shows that N.E. was arrested on August 25, 2009, and charged with "attempted prohibited substance in a correctional facility." She pleaded guilty and was sentenced to three years of deferred adjudication community supervision. It is undisputed, and the record shows, that the August 25, 2009 arrest resulted in court-ordered community supervision. See Tex . Dep't of Pub. Safety v. Moran , 949 S.W.2d 523, 527 (Tex. App.—San Antonio 1997, no writ) (deferred adjudication is court-ordered community supervision even if defendant not under any court-imposed conditions, other than paying a fine and court costs). Consequently, because the charge resulted in community supervision, N.E. is not entitled to expunction of any records relating to her August 25, 2009 arrest. See Ex parte T .C., No. 12-13-00138-CV, 2014 WL 4104806, at *3 (Tex. App.—Tyler Aug. 20, 2014, no pet.) (mem. op.) (because court imposed deferred adjudication, T.C. received "court ordered community supervision" under Article 42.12 for purposes of expunction statute, and was ineligible for expunction of her theft arrest records); see also Nail , 305 S.W.3d at 679-85 (defendant who successfully completed deferred adjudication not entitled to expunction). For this reason, the trial court abused its discretion by granting N.E.'s petition for expunction. See Walker , 827 S.W.2d at 840; see also Heine , 92 S.W.3d at 646.
Under these circumstances, we conclude that error is apparent on the face of the record and that DPS is entitled to prevail in this restricted appeal. See TEX. R. APP. P. 26.1(c), 30; see also Lejeune , 291 S.W.3d at 255. Accordingly, we sustain DPS's sole issue.
DISPOSITION
Having sustained DPS's sole issue, we reverse the trial court's judgment granting expunction of N.E.'s August 25, 2009 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 N.E. be returned to the submitting agencies. See Ex parte Elliot , 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (reversal of expunction applies to all respondents in trial court, even if they did not participate in appeal).
GREG NEELEY
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 349th District Court of Anderson County, Texas (Tr.Ct.No. DCCV17-318-349)
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 N.E.'s August 25, 2009 arrest be reversed and judgment rendered denying the expunction. All costs in this cause expended in this court be, and the same are, hereby adjudged against the Appellee, N.E., for which let execution issue; and that this decision be certified to the court below for observance.
Greg Neeley, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.