Court of Appeals of Texas, Ninth District, Beaumont
Submitted on September 11, 2017
Appeal from the 252nd District Court Jefferson County, Texas
Trial Cause No. X-1592
McKeithen, C.J., Horton and Johnson, JJ.
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
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]
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. 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).
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
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.
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.
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).
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 ...