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S.S v. State

Court of Appeals of Texas, Second District, Fort Worth

April 13, 2017

S.S. APPELLANT
v.
THE STATE OF TEXAS APPELLEE

         FROM COUNTY COURT AT LAW NO. 2 OF DENTON COUNTY TRIAL COURT NOS. CV-2016-00350, CV-2016-00351, CV-2016-00352

          PANEL: SUDDERTH, KERR, and PITTMAN, JJ.

          MEMORANDUM OPINION [1]

          ELIZABETH KERR JUSTICE

         After S.S. was denied employment because of misdemeanor offenses she committed in 2001 and 2003, she filed petitions for nondisclosure of the criminal-history record information related to those offenses. The trial court denied her petitions. In four issues on appeal, S.S. argues that the trial court erred and violated her due-process and equal-protection rights by not applying the statute in effect at the time she filed her petitions and by not conducting an evidentiary hearing as required by that statute, and that the trial court erred by holding a hearing on her petitions without a responsive pleading from, and a hearing request by, the State. We affirm.

         Background

         In June 2001, the trial court placed S.S. on deferred-adjudication community supervision for criminal mischief and marijuana possession. Roughly a year later, the trial court adjudicated her guilty of both offenses and sentenced her to 60 days in jail.

         In 2003, a jury convicted S.S. of harassment and assessed punishment at 150 days' confinement and a $1, 000 fine. The trial court suspended the sentence and placed her on community supervision for 24 months, which she successfully completed.

         In February 2016, S.S. filed a petition for nondisclosure in each case requesting an order prohibiting criminal-justice agencies from disclosing to the public her criminal-history record information. At the hearing on her petitions, S.S. argued that she was entitled to a nondisclosure order under recently enacted government code sections 411.0735, 411.074, and 411.0745. Tex. Gov't Code Ann. §§ 411.0735 ("Procedure for Conviction and Confinement; Certain Misdemeanors"), .074 ("Required Conditions for Receiving an Order of Nondisclosure"), .0745 ("Petition and Order") (West Supp. 2016). The trial court concluded that these sections did not apply because S.S. committed the offenses before the September 1, 2015 effective date and that S.S. did not satisfy the statutory requirements for nondisclosure that were in effect at the time she committed the offenses. Finding S.S. ineligible for nondisclosure in each case, the trial court thus denied her petitions.

         Analysis

         In her first and second issues, respectively, S.S. complains that the trial court erred by not applying the statute in effect at the time she filed her petition and by not conducting an evidentiary hearing on all statutorily mandated issues. Specifically, she contends that the trial court should have proceeded under government code sections 411.074[2] and 411.0745[3] and allowed her to put on evidence that nondisclosure would serve the best interest of justice. The State responds that these sections do not apply because S.S. committed the offenses before the statute's effective date. The State also asserts that S.S. is ineligible for nondisclosure under the earlier law that does apply to her. We agree with the State.

         S.S.'s first issue hinges on statutory construction, something we review de novo and with the primary objective being to ascertain and to give effect to the legislature's intent as expressed in the statute. See Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013); Galbraith Eng'g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009). To determine that intent, "[w]e look to the [statute's] enabling language as well as the content of the statute itself." Nangia v. Taylor, 338 S.W.3d 768, 770 (Tex. App.-Beaumont 2011, no pet.).

         In 2015-a dozen years after S.S.'s last offense-the legislature amended and transferred portions of the statutory provisions governing orders of nondisclosure from section 411.081(d) through (i) to a newly enacted government-code subchapter. See Act of May 21, 2015, 84th Leg., R.S., ch. 1279, §§ 1-13, 2015 Tex. Sess. Law Serv. 4327, 4327-34 (West) (codified at Tex. Gov't Code Ann. §§ 411.071-.0775 (West Supp. 2016)); see also Tex. Gov't Code Ann. § 411.081(d)-(i) (West Supp. 2016). Before these amendments, nondisclosure was available only in certain cases in which a person was placed on deferred-adjudication community supervision and later received a discharge and dismissal. See Act of May 31, 2003, 78th Leg., R.S., ch. 1236, § 4, sec. 411.081(d)-(e), 2003 Tex. Gen. Laws 3499, 3500-01 (amended 2005, 2007, 2013, 2015) (current version at Tex. Gov't Code Ann. §§ 411.0725(b)-(e), 411.074). But now, the statute also allows for nondisclosure after misdemeanor convictions in certain cases. Relevant to this case, newly added sections 411.073 and 411.0375 allow someone to seek nondisclosure of certain misdemeanor convictions that resulted in community supervision or confinement. See Tex. Gov't Code Ann. §§ 411.073, .0735.

         Unfortunately for S.S., these changes in the law apply only prospectively, that is, to the nondisclosure of criminal-history record information for offenses committed after their September 1, 2015 effective date:

SECTION 32. The changes in law made by this Act apply only to the issuance of an order of nondisclosure of criminal history record information for an offense committed on or after the effective date of this Act. The issuance of an order of nondisclosure of criminal history record information for an offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, ...

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