In re O.A.T.

618 S.W.3d 767

In the MATTER OF the Expunction of O.A.T.

No. 08-19-00284-CV

Court of Appeals of Texas, El Paso.

August 31, 2020

Amanda B. Morrison, Texas Department of Public Safety, Crime Records Service, P.O. Box 4143, Austin, TX 78765, Justin B. Underwood, Wyatt, Underwood & Myers PLLC, 705 Texas Ave., Ste. 100, El Paso, TX 79901, for Appellant.

Justin B. Underwood, Wyatt, Underwood & Myers PLLC, 705 Texas Ave., Ste. 100, El Paso, TX 79901, for Appellee.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

JEFF ALLEY, Chief Justice

The Texas Department of Public Safety ("the Department") brings this restricted appeal, challenging the trial court's order granting O.A.T.’s petition for an expunction of criminal records. The core of its complaint is that O.A.T. did not plead or prove a valid statutory ground for granting the expunction. In particular, the Department contends that O.A.T. was not entitled to an expunction for an offense that the State dismissed pursuant to a plea bargain agreement because O.A.T. pled guilty and was placed on community supervision for another offense arising out of the same transaction as the dismissed offense. We agree with the Department, and we therefore reverse the trial court's order.¹

I. PROCEDURAL AND FACTUAL BACKGROUND

A. The Charged Offenses

O.A.T. was arrested on December 7, 1998 on two counts of Engaging in Organized Criminal Activity ("EOCA"). Each count was presented in a separate indictment. One indictment alleged that O.A.T. committed an EOCA offense on November 13, 1998, and the second indictment alleged an EOCA offense occurring on November 27, 1998. Both indictments alleged that O.A.T. "[with] intent to establish, maintain and participate in a combination and in the profits of a combination, with [two other individuals], did then and there commit the criminal offense of Burglary of a Vehicle. The indictments further alleged that the same two individuals participated with O.A.T. as members of the "combination" in the commission of both offenses.

In June of 1999, pursuant to a plea bargain agreement, O.A.T. resolved the November 27th EOCA offense by pleading guilty to the lesser included offense of burglary of a vehicle, a Class A Misdemeanor. Thereafter, pursuant to the State's motion, the trial court dismissed the indictment charging O.A.T. with the November 13th EOCA offense (the "dismissed EOCA offense"). In the State's motion to dismiss, the prosecutor listed the following two reasons for the motion: (1) "The said defendant was convicted on another case," and (2) "Defendant pled guilty to EOCA indictment 980D11484." The trial court then placed O.A.T. on community supervision for two years for the November 27th offense pursuant to Section 42.12 of the Texas Code of Criminal Procedure.²

B. The Petition for Expunction

On September 9, 2015, after the statute of limitations had run on the dismissed EOCA offense, O.A.T. filed a Petition for Expunction requesting expunction of all records pertaining to the dismissed EOCA offense. The petition alleged that the State had "finally dismissed" the charge against him. The Department opposed the petition, contending, among other things, that because both EOCA offenses arose from the same arrest and were part of the same "transaction," O.A.T. was ineligible for an expunction under the expunction statute. The trial court initially granted the Petition and the Department appealed the trial court's decision. We reversed and remanded that expunction order based on the absence of a reporter's record of the expunction proceedings. See Matter of O.T.A. , 564 S.W.3d 456, 461 (Tex.App.--El Paso 2018, no pet.).³ On remand, the trial court held a second expunction hearing, which was duly reported, and at the conclusion of the hearing upheld its original decision to grant the expunction.

II. DISCUSSION

In one issue, the Department contends that the trial court erred in granting the expunction, contending that the Texas expunction statute expressly prohibits the expunction of a dismissed offense when the petitioner received community supervision for another offense arising (1) out of the same arrest, and (2) the same transaction as the dismissed offense. And in turn, the Department contends that both of the EOCA offenses arose from the same arrest and the same transaction. Although our analysis differs in some respects from the approach that the Department takes, we nevertheless agree that the trial court lacked the authority to grant the expunction.

A. Standard of Review

A trial court's ruling on a petition for expunction is generally reviewed for an abuse of discretion. See State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018) ; see also Matter of Expunction of R.P. , 574 S.W.3d 641, 643 (Tex.App.--El Paso 2019, no pet.). Under the abuse of discretion standard, appellate courts 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; therefore, to the extent a ruling on an expunction turns on a question of law, we review the trial court's ruling de novo. See T.S.N. , 547 S.W.3d at 620 ; see also Matter of R.P. , 574 S.W.3d at 643 (recognizing that an appellate court reviews a trial court's legal conclusions in expunction proceedings de novo).

B. Applicable Law

A petitioner's right to expunction is purely a matter of statutory privilege. See Matter of O.T.A. , 564 S.W.3d at 459 ; see also Matter of A.H. , 580 S.W.3d 841, 846 (Tex.App.--El Paso 2019, no pet.). Expunctions in Texas are governed by Article 55.01 of the Texas Code of Criminal Procedure. See T.S.N. , 547 S.W.3d at 620, citing TEX.CODE CRIM.PROC.ANN. art. 55.01. Although the expunction statute is found in the Code of Criminal Procedure, an expunction proceeding is considered a civil cause of action. See Matter of O.T.A. , 564 S.W.3d at 459, citing T.S.N. , 547 S.W.3d at 619 (recognizing the civil nature of expunction proceedings).

Further, because a cause of action for expunction is statutory in nature, all conditions in the statute are considered mandatory, and therefore, all conditions listed in the statute must be met before a person is entitled to expunction. See Matter of O.T.A. , 564 S.W.3d at 459, citing In Matter of Expunction of A.M. , 511 S.W.3d 591, 594 (Tex.App.--El Paso 2015, no pet.). When a party holding criminal records opposes a petition for expunction, the petitioner carries the burden to affirmatively meet all the conditions in the expunction statute. See Matter of A.H. , 580 S.W.3d at 847 ; see also In re D.W.H. , 458 S.W.3d 99, 104 (Tex.App.--El Paso 2014, no pet.). Thus, a trial court abuses its discretion if it orders an expunction of records despite a petitioner's failure to satisfy all the statutory requirements. See Matter of O.T.A. , 564 S.W.3d at 459.

The expunction statute covers two distinct situations--one where the arrested person is acquitted of or pardoned for the charge, and the other where the person has the charge dismissed or plea bargained. Expunction based on an acquittal or pardon is governed by Article 55.01(a)(1) and expunction based on a dismissal or plea bargain is governed by Article 55.01(a)(2). Each of those subsections have detailed provisions.

In this case, O.A.T. sought expunction under the dismissal provisions of Article 55.01(a)(2) which provide:

(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:

...

(2) 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 Chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that:

(A) ... an indictment or information charging the person with the commission of a misdemeanor offense based on the person's arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:

(i) has not been presented against the person at any time following the arrest ... or

(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because: (a) the person completed a veterans treatment court program ... (b) the person completed a mental health court program ... (c) the person completed a pretrial intervention program ... (d) the presentment [of the indictment] 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 (e) the indictment or information was void, or

(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A)(i)(ii), 55.01(a)(2)(B).

The subsection is broken into two distinct parts. The first portion sets out the requirements that the dismissed charge must meet in order to be expunged, i.e., the charge must not have resulted in a final conviction, must no longer be pending, and there must not have been any court-ordered supervision for that offense. TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2)(A). These requirements apply only to the offense to be expunged, and not to any other charges that are, or may have been, pending against the petitioner, even if those charges arose out of the same arrest. Ex parte N.B.J. , 552 S.W.3d 376, 383 (Tex.App.--Houston [14th Dist.] 2018, no pet.) (pointing out that this portion of the expunction statute conditions relief on the bases that the charge has not resulted in a final conviction and that there was no court-ordered community supervision for the offense.).

The second portion of the subsection addresses those situations where a petitioner faces...