Court of Appeals of Texas, Fourth District, San Antonio
EX PARTE Forestt R. CAIN
the 407th Judicial District Court, Bexar County, Texas Trial
Court No. 2016CI04083 Honorable Peter A. Sakai, Judge
Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz
Elena D. Chapa, Justice
Marialyn Barnard, Justice
an appeal from a trial court's order granting an
expunction of appellee Forestt R. Cain's arrest records
relating to the offense of misapplication of fiduciary
property. On appeal, appellants the City of Windcrest and the
Windcrest Police Department (collectively
"Windcrest") contend the trial court erred in
granting the expunction because Cain failed to meet all of
the required statutory elements for an expunction of arrest
records. We reverse the trial court's order of expunction
and render judgment denying the expunction.
2010, Cain was arrested for offenses relating to his actions
as a city manager for the City of Windcrest. In November 2010
and February 2013, Cain was indicted for, among other
offenses, felony theft by a public servant and felony
misapplication of property by a fiduciary. However, on
October 1, 2015, the Bexar County District Attorney filed a
motion to dismiss the criminal charges against Cain. The
trial court granted the motion the same day it was filed.
on March 8, 2016, Cain filed a petition for expunction. In
his petition, he sought an order expunging "all records
and files relating to his arrest" for the offenses of
misapplication of property by a fiduciary. After a hearing,
the trial court granted Cain's petition and rendered an
order of expunction. Windcrest timely perfected this appeal.
appeal, Windcrest contends the trial court erred in granting
the expunction because Cain failed to comply with all the
necessary statutory requirements for an expunction.
Specifically, Windcrest contends Cain failed to establish the
statute of limitations had expired on the theft by a public
servant offense, which was required because it stemmed from
the same arrest. We agree.
appellate court reviews a trial court's ruling on a
petition for expunction under an abuse of discretion
standard. Henry v. State, 513 S.W.3d 750, 752 (Tex.
App.-San Antonio 2017, no pet.); Tex. Dep't of Pub.
Safety v. Dicken, 415 S.W.3d 476, 478 (Tex. App.-San
Antonio 2013, no pet.). A trial court abuses its discretion
if it acts without reference to any guiding rules or
principles. Bennett v. Grant, 525 S.W.3d 642, 653
(Tex. 2017). However, to the extent an expunction ruling
turns on a question of law, an appellate court reviews the
ruling using a de novo standard because a trial court has no
discretion in determining what the law is or applying the law
to the facts. Perry Homes v. Cull, 258 S.W.3d 580,
606 (Tex. 2008); Henry, 513 S.W.3d at 752;
Dicken, 415 S.W.3d at 478; Walker v.
Packer, 827 S.W.2d 833, 840 (Tex.1992).
the provisions governing expunctions are set out in article
55.01 of the Texas Code of Criminal Procedure, an expunction
proceeding is civil rather than criminal in nature. Ex
parte K.R.K., 446 S.W.3d 540, 543 (Tex. App.-San Antonio
2014, no pet.); Ex parte Green, 373 S.W.3d 111, 113
(Tex. App.-San Antonio 2012, no pet.); see Tex. Code
Crim. Proc. Ann. art. 55.01 (West Supp. 2017). Moreover,
expunction is a statutory privilege, not a constitutional or
common-law right. K.R.K., 446 S.W.3d at 543;
Green, 373 S.W.3d at 113. Accordingly, a person
seeking expunction is not entitled to relief unless he meets
each requirement set out in article 55.01. K.R.K.,
446 S.W.3d at 543; Green, 373 S.W.3d at 113.
"Each statutory provision is mandatory and a petitioner
is entitled to expunction only upon a showing that each and
every statutory condition has been met."
K.R.K., 446 S.W.3d at 543. A trial court has no
equitable power to expand the availability of expunction
beyond the limits of the statute; rather, it must strictly
comply with the statutory requirements. Id. (citing
T.C.R. v. Bell Cnty. Dist. Attorney's Office,
305 S.W.3d 661, 663 (Tex. App.-Austin 2009, no pet.)). Only
if the person seeking expunction fully complies with the
statutory requirements is the trial court required to grant
pertinent to this appeal, article 55.01(a)(2)(B) of the Texas
Code of Criminal Procedure provides that a person is entitled
to expunction of an arrest record if he "has been
released and the charge, if any, has not resulted in a final
conviction and is no longer pending and there was not
court-ordered community supervision . . . provided that . . .
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. ...