Ex parte N.R.L.

654 S.W.3d 605

EX PARTE N.R.L.

No. 05-20-00518-CV

Court of Appeals of Texas, Dallas.

Opinion Filed October 21, 2022

Brent G. Burpee, Texas Department of Public Safety, Austin, for Appellant.

Ryne T. Sandel, Whalen Law Office, Frisco, for Appellee.

Before Justices Pedersen, III, Goldstein, and Smith

OPINION

Opinion by Justice Goldstein

This is an appeal from the trial court's order of expunction in favor of appellee N.R.L., who was tried and acquitted of driving while intoxicated (DWI), which the State had alleged was enhanced due to a prior DWI conviction. In two issues, the Texas Department of Public Safety (the Department) contends that (1) N.R.L. was not entitled to expunction because his acquittal arose out of the same "criminal episode" as the prior DWI for which he was convicted and (2) the trial court's order of expunction is not supported by legally sufficient evidence. We affirm.

BACKGROUND

In 2007, N.R.L. was arrested and charged with driving while intoxicated, a class B misdemeanor. See TEX. PENAL CODE ANN. § 49.04. He was tried in County Criminal Court at Law No. 6 of Dallas County, and the jury found him guilty. He was sentenced to ten days’ confinement and fined $1,000. In November 2018, N.R.L. was again arrested and charged with DWI. See id. As this was N.R.L.’s second DWI arrest, the State alleged enhancement under Section 49.04 of the Penal Code. See id. § 49.04(a) (providing that a second DWI offense is a class A misdemeanor). N.R.L. was tried in County Court at Law No. 2 of Collin County, and, on March 5, 2020, the jury found him not guilty. The judgment advised N.R.L. of his right to an expunction.¹

On March 9, 2020, N.R.L. filed a petition for expunction in the 296th Judicial District Court of Collin County. On March 14, 2020, the Collin County District Attorney's office emailed N.R.L.’s counsel advising that his office reviewed and agreed with the petition for expunction, had signed the order, and provided that the order could then be presented to the court for signature. The trial court granted the petition and entered its March 17, 2020, order of expunction.

On April 1, 2020, the Department filed an unverified motion for new trial. In the motion, the Department explained that it was "served with a Petition for Expunction on March 9, 2020, but not notified of a hearing on this case." The Department urged the trial court to set aside its order of expunction on grounds that N.R.L. failed to meet his burden to negate the statutory exception under Article 55.01(c) of the Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 55.01(c) ("A court may not order the expunction of records ... if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode."). After a hearing, the trial court denied the motion for new trial. This appeal followed.²

DISCUSSION

A. Applicable Law

There is no constitutional right to expunction. Ex parte K.T. , 645 S.W.3d 198, 202 (Tex. 2022). Rather, "[e]xpunction is a civil remedy governed by Article 55.01 of the Texas Code of Criminal Procedure." Ex parte R.P.G.P. , 623 S.W.3d 313, 316 (Tex. 2021). An order of expunction allows the arrestee to " ‘deny the occurrence of the arrest and [deny] the existence of the expunction order [except in a criminal proceeding]’ and prohibits governmental and private entities named in the order from releasing, maintaining, disseminating, or using the expunged records and files ‘for any purpose.’ " See id. (citing TEX. CODE CRIM. PROC. ANN. art. 55.03 ). Because expunction is a privilege defined by statute and not a constitutional or common law right, "the statutory requirements are mandatory and exclusive and cannot be equitably expanded by the courts." Id.

Under Article 55.01(a) of the Code of Criminal Procedure, an arrestee is entitled to have all records and files relating to the arrest expunged if, among other grounds, "the person is tried for the offense for which the person was arrested and is acquitted by the trial court, except as provided by Subsection (c)." See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1)(A) (internal punctuation omitted).³ The exception to this entitlement is found in Article 55.01(c), which provides:

A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.

Id. art. 55.01(c). "[C]ourts cannot apply the exception without confirming that, under the Penal Code's definition, a ‘criminal episode’ has been formed in the first place." K.T. , 645 S.W.3d at 202. Under Section 3.01 of the Penal Code, a "criminal episode" is defined as:

[T]he commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person or item of property, under the following circumstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or

(2) the offenses are the repeated commission of the same or similar offenses.

TEX. PENAL CODE ANN. § 3.01.

B. Standard of Review

In its first issue, the Department argues that the trial court abused its discretion in granting the petition for expunction. In its second issue, the Department argues that the evidence was legally insufficient to support the trial court's order.⁴

We review a trial court's expunction order for abuse of discretion. Ex parte Ferris , 613 S.W.3d 276, 280 (Tex. App.—Dallas 2020) (citing State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018) ). Under that standard, we afford no deference to the trial court's legal determinations because a trial court has no discretion in deciding what the law is or in applying it to the facts. Id. Thus, we review a trial court's legal conclusions de novo. Id. "However, when we consider factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court." Id.

Our review for legal sufficiency differs depending on which party had the burden of proof at trial. "When a party challenges the legal sufficiency of the evidence to support an adverse finding on which it did not have the burden of proof, the party must demonstrate that no evidence supports the finding." Tex. Champps Americana, Inc. v. Comerica Bank , 643 S.W.3d 738, 744 (Tex. App.—Dallas 2022, pet. denied) (citing Graham Cent. Station, Inc. v. Pena , 442 S.W.3d 261, 263 (Tex. 2014) ). "When a party challenges the legal sufficiency of the evidence supporting an adverse finding on an issue on which the party had the burden of proof, it must show that the evidence establishes all vital facts in support of the issue as a matter of law." Id. (citing Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) ).

The Department contends that N.R.L. had the burden to plead and prove each statutory requirement for an expunction. That is, the Department contends that N.R.L. had to establish not only that he was arrested and acquitted of the second DWI, but also that N.R.L. had to negate the exception under Article 55.01(c). At the time the Department filed its brief, this allocation of the burden of proof found support in a number of opinions from courts across the State, including this one. In Ferris , for example, the Department appealed from the trial court's order granting Ferris's expunction. See Ferris , 613 S.W.3d at 279. In addressing the Department's sufficiency challenge to the trial court's finding under Article 55.01(c), we explained: "The Department, as the party challenging the legal sufficiency of the evidence on a matter for which it did not bear the burden of proof , ‘must demonstrate on appeal there is no evidence to support the trial court's adverse findings.’ " Id. (emphasis added). In other words, we implicitly held that the burden to negate the exception rested with the expunction petitioner.⁵

After the parties submitted their briefs in this case, the Texas Supreme Court issued its opinions in R.P.G.P. and K.T. , which foreclose the Department's burden-placement argument. In R.P.G.P. , the majority, responding in dicta to the dissenting opinion, implied that the burden rests with the State to prove the exception:

The dissent also summarily asserts that R.P.G.P. would bear the burden of proving that the two offenses are not part of the same criminal episode. Because the criminal-episode exception applies only to acquittals, we need not decide who bears the burden of proving the exception's applicability. We note, however, that the party seeking the benefit of a statutory exception generally bears the burden of proving it.

R.P.G.P. , 623 S.W.3d at 321 n.51 (citing Fed. Trade Comm'n v. Morton Salt Co. , 334 U.S. 37, 44–45, 68 S.Ct. 822, 92 L.Ed. 1196 (1948) ; Eckman v. Centennial Sav. Bank , 784 S.W.2d 672, 674–75 (Tex. 1990) ; Burk Royalty Co. v. Riley , 475 S.W.2d 566, 568 (Tex. 1972) ). A year later, the Court issued its opinion in K.T. , in which the applicability of the Article 55.01(c) exception was in direct dispute. See K.T. , 645 S.W.3d at 202. Without reference to dicta from R.P.G.P. , the Court explained:

When the State invokes the statutory exception to block access to expunction for someone who has been acquitted of an offense, these statutory provisions require the State first to establish that a "criminal episode" has in fact been formed. If so, the State must show that the acquittal at issue "arose out of" that "criminal episode."

Id. (...