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Ex parte Chung

Court of Appeals of Texas, Fifth District, Dallas

March 30, 2017

EX PARTE DAVID YOUNG CHUNG

         On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. X14-1672-T

          Before Chief Justice Wright, Justice Lang-Miers, and Justice Myers

          MEMORANDUM OPINION

          ELIZABETH LANG-MIERS JUSTICE

         Appellant David Young Chung appeals denial of his petition to expunge his conviction for burglary of a habitation. In one issue, he argues that, because the trial court granted him judicial clemency under article 42.12 of the code of criminal procedure removing all penalties and disabilities, the trial court should have also granted his petition to expunge his conviction under article 55.01 of the code of criminal procedure because his criminal record is a penalty or disability. We affirm.

         Background

         In March 1999, appellant pleaded guilty pursuant to a plea bargain agreement to the offense of burglary of a habitation. The court deferred adjudication of guilt and placed him on community supervision for three years. In December 1999, the State filed an amended motion to proceed with adjudication of guilt against him alleging that he had violated conditions of his probation. He pleaded true to the allegations in the amended motion and went "open" to the court for punishment. The trial court adjudicated him guilty and sentenced him to ten years' imprisonment but suspended the sentence and placed him on community supervision for ten years. As a condition of his community supervision, the trial court ordered him to serve in a substance abuse felony punishment facility (SAFPF) for 365 days. He completed the SAFPF program.

         In April 2006, he moved for early release from community supervision and the trial court entered an "ORDER SETTING ASIDE JUDG[]MENT OF CONVICTION[, ] DISMISSING THE INDICTMENT[, ] AND DISCHARGING DEFENDANT FROM PROBATION[.]" The order stated "that the [j]udg[]ment of Conviction heretofore entered against the Defendant in this case be and the same is hereby set aside, the indictment dismissed, and the Defendant discharged from said probation, and the Defendant is hereby released from all penalties and disabilities resulting from the Judg[]ment of Conviction in this cause."

         In November 2014, he filed a petition requesting expunction of the records and files concerning his arrest for burglary of a habitation. After a hearing in November 2015, the trial court denied the petition. The trial court then entered findings of fact and conclusions of law. The trial court concluded that he "did receive judicial clemency from the 363rd District Court and that court's exercise of clemency was authorized by Article 42.12, § 20 (a)." It also concluded "that under the terms of art. 55.01 (a) (2), as interpreted by the courts of appeals, Petitioner is not entitled to an expunction." The court concluded that it was "in sympathy with the arguments raised by Petitioner and may well have ruled in Petitioner's favor if the Court believed this was an open question." But the court concluded that it believed it was "constrained to rule in accord with the court of appeals cases" "Perdue v. Texas Department of Public Safety, 32 S.W.3d 333, 335 (Tex. App.-San Antonio 2000, no pet.)[, ] Tex. Dept. of Public Safety v. J.H.J., 274 S.W.3d 803 (Tex. App.-Houston [14th Dist.] 2008, no pet.), and Moore v. Dallas County Dist. Atty's Office, 670 S.W.2d 727 (Tex. App.-Dallas 1984, no writ)." He filed this appeal.

         Standard of Review and Applicable Law

         Expunction is a statutorily-created remedy that allows a person who has been arrested for the commission of an offense to have the records and files relating to the arrest expunged if the person meets the statutory requirements of article 55.01 of the code of criminal procedure. Collin Cty. Dist. Attorney's Office v. Fourrier, 453 S.W.3d 536, 538 (Tex. App.-Dallas 2014, no pet.). Because the cause of action is created by statute, all of its provisions are mandatory and exclusive and require strict compliance for the action to be sustained. Id. at 539. The trial court has no equitable power to extend the protections of the expunction statute beyond the statute's stated provisions. Id. The expunction statute appears in the code of criminal procedure but an expunction proceeding is civil in nature. Id. The petitioner carries the burden of proving compliance with the statutory requirements. Id.

         We review a trial court's ruling on a petition for expunction for an abuse of discretion. Id. But to the extent a ruling on expunction turns on a question of law, we review the ruling de novo because a trial court has no discretion in determining what the law is or applying the law to the facts. Id. "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." Id. (quoting In re O.R.T., 414 S.W.3d 330, 332 (Tex. App.-El Paso 2013, no pet.)). "Thus, regardless of the focus of the parties' briefs, " if appellant "fails to satisfy any of the requisites of the expunction statute, [he] is not entitled to expunction as a matter of law." Id. (quoting Travis Cty. Dist. Atty. v. M.M., 354 S.W.3d 920, 927 (Tex. App.-Austin 2011, no pet.) (en banc) (op. on reh'g)). And courts have held that court-ordered community supervision precludes expunction. See Tex. Dept. of Public Safety v. Jacobs, 250 S.W.3d 209, 211 (Tex. App.-Dallas 2008, no pet.) (concluding "record establishe[d] Jacobs was not entitled to expunction because the court ordered 'community supervision' under article 42.12"); J.H.J., 274 S.W.3d at 809 (stating "one who receives community supervision is not eligible for expunction, regardless of the type of section 20(a) discharge he receives"); Perdue, 32 S.W.3d at 335 (concluding Perdue not entitled to expunction because he was placed on court-ordered community supervision as a result of the arrest he sought to expunge).

         Arguments of the Parties

         Appellant received judicial clemency under article 42.12, section 20(a) of the code of criminal procedure that removed "all penalties and disabilities resulting from" his conviction for burglary of a habitation.[1] He argues that the trial court should have also granted his petition for expunction of the conviction because the conviction is a penalty or disability. He contends that, although "judicial clemency is not an explicit ground for expunction under Article 55.01" of the code of criminal procedure, article 42.12 and article 55.01 should "be harmonized to permit expunction where the trial court grants judicial clemency[.]"

         Appellee[2] contends that appellant is not entitled to expunction under article 55.01 because the court placed him on community supervision and, under article 55.01, a party placed on community supervision does not qualify for expunction. Appellee argues that appellant's argument for "harmonization" of article 42.12, section 20 and article 55.01 "actually asks this Court to hold that 42.12, section 20 trumps the requirements of article 55.01 and independently creates a separate right to expunction." Appellee also argues that construing article 42.12, section 20 as creating a right to expunction under article 55.01 brings the two statutes into "irreconcilable conflict" ...


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