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Burke v. State

Court of Appeals of Texas, Ninth District, Beaumont

November 9, 2017

DAVID TODD BURKE, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted on September 11, 2017

         On Appeal from the 252nd District Court Jefferson County, Texas Trial Cause No. X-1592

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          HOLLIS HORTON Justice

         In this appeal, we are asked to decide whether David Todd Burke, who filed a petition seeking to expunge all of the records in his underlying criminal case bearing Cause Number 09-7066, waived his right to seek to expunge the records in Cause Number 09-7066 by agreeing to an order in that cause that enjoined Burke "from being employed as or working as a peace officer in the State of Texas" until December 10, 2024. See Tex. Code Crim. Proc. Ann. arts. 55.01-.06 (West 2006 & Supp. 2016) (Expunction of Criminal Records). Because Burke waived his right to seek to modify or dissolve the injunction rendered in Cause Number 09-7066, we conclude the trial court did not err by denying Burke's petition to expunge all of the records in that case since expunging them would have resulted in the destruction of the order preventing Burke from returning to his former duties as a peace officer.

         Background

         In July 2009, the State indicted Burke in Cause Number 09-7066 for official oppression. The indictment was based on conduct that occurred in August 2007. Ultimately, in 2014, the State and Burke reached an agreement to resolve the charges against him in Cause Number 09-7066. Under Burke's agreement with the State, the trial court in Cause Number 09-7066 signed an Agreed Order enjoining Burke from working as a peace officer in the State of Texas until December 2024. In return, the State agreed to dismiss the case in which Burke had been charged with official oppression. The Agreed Order provides that Burke "waives all rights to file any motion to modify or dissolve this injunction." In a separate order, which the trial court rendered on the same date, the court dismissed Cause Number 09-7066. In its motion to dismiss, the State alleged that it no longer wished to prosecute Burke because he had "agreed to [the] Permanent Injunction."

         Approximately six months after Burke agreed to the permanent injunction, he filed a petition seeking to expunge "any and all records arising out of" the charges in Cause Number 09-7066. The district clerk assigned Cause Number X-1592 to Burke's petition, and then assigned the petition to the 252nd District Court, the court that handled Burke's criminal case.[1] See Tex. Code Crim. Proc. Ann. art. 55.02 § 1 (West Supp. 2016) (authorizing the district court that presided over the defendant's criminal case to consider a petition to expunge the records in the underlying criminal case).

         Generally, the rules that apply to expunction proceedings require the clerk of the court, within sixty days, to destroy all court files and records on a person if the person's petition seeking to expunge the records is granted. Id. art. 55.02 § 5(d) (West Supp. 2016). The City of Beaumont and Jefferson County answered Burke's petition; although Jefferson County's first response indicated that it did not oppose Burke's petition, it later amended its petition, and it joined the response the City had filed in opposition to Burke's request. In its response, the City asserted that Burke had waived any right he might have to expunge the records on file in Cause Number 09-7066 because he agreed that he would not seek to modify or dissolve the injunction in Cause Number 09-7066 in consideration for the State's agreement to dismiss that same case. Because the Agreed Order that reflects the parties' agreement is one of the records being maintained by the District Clerk in Cause Number 09-7066, granting Burke's petition would have resulted in the destruction of the Agreed Order, which prohibits Burke from returning to his duties as a peace officer.

         In January 2016, the district court conducted a hearing on Burke's petition. No witnesses testified in the expunction hearing; instead, the parties relied on exhibits that the parties had attached to their pleadings. At the conclusion of the hearing, the trial court advised the parties that the court was "going to deny the petition for expunction primarily based on the fact that the Agreed Order specifically says that Mr. Burke waives all rights to file any motion to modify or dissolve this injunction." During the hearing, the trial court found that an order expunging the records in Cause Number 09-7066 would destroy the Agreed Order.

         Subsequently, Burke appealed from the trial court's decision denying his petition. In one issue, Burke asserts the trial court erred by denying his petition. Burke presents two arguments supporting his issue, claiming that legally sufficient evidence was introduced in the hearing to prove that he qualified to have the records in Cause Number 09-7066 expunged, and that the Agreed Order the trial court signed in Cause Number 09-7066 cannot legally be enforced.

         Standard of Review

         Chapter 55 of the Texas Code of Criminal Procedure allows a person arrested, but later acquitted, or who has had the charges dropped, to obtain an order from a trial court expunging all records that are related to the arrest. City of Beaumont v. J.E.M., No. 09-10-00537-CV, 2011 Tex.App. LEXIS 7057 (Tex. App.-Beaumont, Aug. 31, 2011). A statutory expunction proceeding is a civil proceeding, and parties seeking to expunge records have the burden of proving that they complied with the requirements of the expunction statute. Collin Cty. Dist. Attorney's Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.-Dallas 2005, no pet.); Houston Police Dep't v. Berkowitz, 95 S.W.3d 457, 460 (Tex. App.-Houston [1st Dist.] 2002, pet. denied).

         We review a trial court's ruling on a petition to expunge records relevant to a criminal case using an abuse of discretion standard. Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.-Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). A trial court abuses its discretion if it acts in an arbitrary or ...


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