In re Expunction O.R.T.

414 S.W.3d 330

In the Matter of the Expunction of O.R.T.

No. 08–12–00082–CV.

Court of Appeals of Texas, El Paso.

Oct. 16, 2013.

D. Kaylyn Betts, Texas Dept. of Public Safety, Austin, for Appellant.

Ignacio Pratti Estrada, El Paso, for Appellee.

Before McCLURE, C.J., RIVERA, and RODRIGUEZ, JJ.

OPINION

GUADALUPE RIVERA, Justice.

The Texas Department of Public Safety (DPS), appeals from an order granting O.R.T.'s petition for expunction of his records in connection with an arrest for driving while license suspended (DWLS). DPS complains that the trial court erred by granting the petition for expunction on the DWLS charge because O.R.T. pleaded guilty to that charge under section 12.45 of the Texas Penal Code which resulted in a final conviction for a separate DWI offense. We reverse and render judgment denying the petition for expunction on the DWLS offense.

BACKGROUND

The record establishes that O.R.T. was arrested for a DWLS offense on April 8, 2000. In May 2011, O.R.T. filed a petition for the expunction of various arrest records including those pertaining to the DWLS offense.¹ In his petition, O.R.T. alleged that he was entitled to an expunction of the DWLS charge pursuant to Article 55.01(a)(2) of the Texas Code of Criminal Procedure. O.R.T. asserted that expunction was proper because the indictment or information presented had been subsequently dismissed or quashed because “the case was 12.45'd, thereby indicating a lack of probable cause at the time of the dismissal,” ² O.R.T. had been released, the charge did not result in a final conviction and was no longer pending, there was no court-ordered community supervision under Texas Code of Criminal Procedure Article 42.12, and he had not been convicted of a felony in the five years preceding the date of the earliest arrest described in the petition.

Respondents, The El Paso County Sheriff's Office, El Paso County Attorney's Office, El Paso Clerk's Office, District Attorney's Office, District Clerk's Office, Records Management and Archives, Director of West Texas Community Supervision and Corrections Department (Probation), Director of El Paso County Court Administration, and the Jail Magistrate answered the petition by filing a general denial as to the DWLS offense.³ DPS replied to O.R.T.'s petition by filing a separate general denial. After a hearing, the trial court granted O.R.T.'s petition for expunction. In its expunction order, the trial court expressly found that the DWLS offense had been dismissed. This restricted appeal followed.

In a single issue on appeal, DPS contends the trial court erred in expunging the DWLS offense because O.R.T. failed to prove by legally sufficient evidence that the offense did not result in a final conviction under Article 55.01(a)(2)(B).⁴ Specifically, DPS maintains that O.R.T. was not entitled to an expunction on his arrest for DWLS because he admitted guilt to the DWLS offense pursuant to section 12.45 of the Texas Penal Code and was convicted of a separate DWI offense as a consequence of the arrest. O.R.T. has not filed a brief to assist us in the disposition of this appeal.

DISCUSSION

Standard of Review

We review a trial court's ruling on a petition for expunction under an abuse of discretion standard. In re C.F.P., 388 S.W.3d 326, 328 (Tex.App.-El Paso 2012, no pet.); In re S.D., 349 S.W.3d 76, 79 (Tex.App.-El Paso 2010, no pet.). When, as in this case, the petitioner alleges that he is entitled to an expunction under Article 55.01(a), the trial court has no discretion but to grant the petition if the statutory conditions are satisfied. In re J.O., 353 S.W.3d 291, 293 (Tex.App.-El Paso 2011, no pet.). A trial court abuses its discretion if it orders an expunction of records despite a petitioner's failure to satisfy all of the statutory requirements. Travis County Dist. Attorney v. MM., 354 S.W.3d 920, 923, 929 (Tex.App.-Austin 2011, no pet.); Texas Dept. of Pub. Safety v. Fredricks, 235 S.W.3d 275, 281 (Tex.App.-Corpus Christi 2007, no pet.). In reviewing the legal sufficiency of the evidence, we consider only the evidence which tends to support the findings of fact and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); El Paso County Hosp. Dist. v. Gilbert, 64 S.W.3d 200, 203 (Tex.App.-El Paso 2001, pet. denied).

EXPUNCTION

The right to expunction is neither a constitutional nor a common-law right, but rather a statutory privilege. In re Retzlaff, 345 S.W.3d 777, 780 (Tex.App.-El Paso 2011, no pet.); Texas Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.). The purpose of the expunction statute is to permit the expunction of records of wrongful arrests. See Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991); M.M., 354 S.W.3d at 926. An expunction cannot be granted unless the statutory requirements are satisfied. Perdue v. Tex. Dep't of Pub. Safety, 32 S.W.3d 333, 335 (Tex.App.-San Antonio 2000, no pet.). Although the expunction statute is found in the Texas Code of Criminal Procedure, an expunction proceeding is civil rather than criminal in nature. In re R.R., 342 S.W.3d 126, 129 (Tex.App.-El Paso 2011, no pet.). The burden to establish compliance with the statutory requirements rests with the petitioner. In re Retzlaff, 345 S.W.3d at 780.

In pertinent part, Article 55.01(a) provides:

(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:

(1) the person is tried for the offense for which the person was arrested and is:

(A) acquitted by the trial court, except as provided by Subsection (c) of this section; or

(B) convicted and subsequently pardoned; or

(2) each of the following conditions exist:

(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under Section 76.011, Government Code, or because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) 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 Article 42.12 for any offense other than a Class C misdemeanor; and

(C)the person has not been convicted of a felony in the five years preceding the date of the arrest.

Tex.Code Crim. Proc. Ann. art. 55.01(a)(1)(2) (West 2006).

Analysis

On appeal, DPS argues that the expunction of records is barred when a petitioner admits guilt to an offense for purposes of section 12.45 of the penal code and that admitted unadjudicated offense results in any final conviction. In essence, DPS presents a question of statutory construction concerning Tex.Code Crim. Proc. Ann. art. 55.01(a)(2)(B). When interpretingstatutes, our primary focus is to give effect to the legislature's intent as expressed by the statutory language. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009); State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Where the statutory text is clear and unambiguous, it is determinative of legislative intent. Entergy, 282 S.W.3d at 437. We construe the statutory language according to their plain and common meaning unless a contrary intention is apparent from the context or unless such a construction leads to nonsensical or absurd results. FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex.2008). We presume the legislature chooses a statute's language with care, deciding to purposefully include or omit words. In re M.N., 262 S.W.3d 799, 802 (Tex.2008).

In relevant part, section 12.45 of the Texas Penal Code provides:

(a) A person may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty.

...

(c) If a court lawfully takes into account an admitted offense, prosecution is barred for that offense.

Tex. Penal Code Ann. § 12.45 (West 2011).

Relatively few courts have interpreted Article 55.01(a) in relation to section 12.45 of the Penal Code and have reached contrary conclusions on whether the unadjudicated offense can be expunged. See M.M., 354 S.W.3d at 926 (holding that an admitted offense under section 12.45 was not capable of being expunged because the offense had not been dismissed under former Article 55.01(a)(2)(A)); ⁵Travis County Attorney v. J.S.H., 37 S.W.3d 163, 167 (Tex.App.-Austin 2001, no pet.) (concluding that unadjudicated offenses considered during punishment pursuant to section 12.45 do not result in a “final conviction,” as used in Article 55.01(a)(2)(B) and may be expunged). In J.S.H., the dissent pointed out that Article 55.01(a)(2)(B) does not specify that expunction is available only when the unadjudicated offense that is being considered for expunction has not resulted in a final conviction for that specific unadjudicated offense, but rather the statutory language prohibits expunction if the unadjudicated offense has resulted in “any” final conviction. J.S.H., 37 S.W.3d at 168 (Jones, J.,...