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Texas Department of Public Safety v. M. G.

Court of Appeals of Texas, Third District, Austin

April 25, 2018

Texas Department of Public Safety, Appellant
v.
M. G., Appellee

          FROM THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT NO. D-1-EX-15-000739, HONORABLE BRENDA KENNEDY, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Shannon [*]

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice

         The Texas Department of Public Safety filed this appeal challenging the district court's order for expunction of records relating to M.G.'s arrest for sexual assault and practicing medicine without a license. DPS contends that M.G. was not entitled to expunction of his arrest records because he failed to prove that he met the statutory requirements for expunction. We will reverse the district court's order and render judgment denying M.G. expunction of his records.

         BACKGROUND

         In 2015, M.G. filed a petition seeking to expunge records of his arrest for sexual assault, a second-degree felony, and practicing medicine without a license, a third-degree felony. The indictment shows that the charges were based on the grand jury's finding that M.G. sexually assaulted the victim while purporting to conduct a gynecological exam. After M.G. was convicted in another case of a similar charge arising from another incident, these charges were dismissed "pending further investigation." See Green v. State, 137 S.W.3d 356, 367 (Tex. App.-Austin 2004, pet. ref'd) (affirming M.G.'s conviction for practicing medicine without license and causing psychological harm to another victim by performing purported gynecological exam). M.G.'s expunction petition specifically alleged that he was entitled to expunction under Texas Code of Criminal Procedure article 55.01(a)(2)(A)(ii) "because the indictment was DISMISSED." See Act of May 27, 2011, 82d Leg., R.S., ch. 894, § 1, 2011 Tex. Gen. Laws 2275, 2275-76 (amended 2015, 2017) (current version at Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(ii)(c), (d)). He also alleged that his indictment was void on its face and that his charge of practicing medicine without a license was based on statutes that were unconstitutional.

         DPS filed an answer generally denying all allegations in M.G.'s expunction petition, demanding strict proof of his allegations, and contending that M.G. was not entitled to expunction of the records. The Travis County District Attorney's Office intervened, filed an answer generally denying all allegations in M.G.'s petition, demanding strict proof, and filed special exceptions contending that M.G. failed to state a cause of action under the expunction statute because he failed to plead all elements of the cause of action. The DA's office also filed a trial memorandum noting that expunction is improper if a person is convicted of any charge arising from the same arrest and contending that M.G. was arrested at the same time on the charges that were dismissed and the charge that ultimately resulted in his conviction. M.G. filed a response disputing that contention.

         The Travis County Criminal Law Magistrate issued findings and recommendations without holding an evidentiary hearing. The magistrate found that M.G. was not arrested on both cases at the same time and recommended granting M.G.'s petition for expunction. That same day, the district court signed an Order Directing Expunction of Criminal Records adopting the magistrate's findings and recommendations, concluding that the court had jurisdiction over the cause and the parties, and further concluding that legal requirements for notice to other parties were met. The order stated, in relevant part:

The Court has adopted the findings of fact and recommendations of the Travis County Criminal Law Magistrate. All requirements of law concerning notice to other parties having been complied with, and it appearing to the Court that it has jurisdiction over this cause and all parties entitled to notice of these proceedings having received notice, the Court proceeded to consider the cause. It is the decision of this Court that Petitioner is entitled to have his records expunged. It is therefore ORDERED that all records arising out of Petitioner's arrest by the Austin Police Department for Sexual Assault and Practicing Medicine without a license on July 15, 2001 (may show on some records as July 16, 2001) which is the subject of this cause, are EXPUNGED.

         Notably, neither the magistrate nor the district court stated whether M.G. met his burden of proving that he met the statutory requirements for expunction, and no reference to article 55.01 appears in either of their rulings. DPS subsequently filed this appeal challenging the expunction order.

         DISCUSSION

         Expunction is a statutory privilege, not a constitutional or common-law right. In re Expunction, 465 S.W.3d 283, 290 (Tex. App.-Houston [1st Dist.] 2015, no pet.) (op. on reh'g). The statutory right to seek an expunction is available only when all of the statutory conditions have been met. Texas Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex. App.-Austin 2010, no pet.) (op. on reh'g). Trial courts must strictly comply with the statutory requirements and have no equitable power to expand the availability of the remedy beyond what the Legislature has provided. Id. at 675 (internal citations omitted).

         A petitioner bears the burden of proving compliance with all statutory requirements for expunction in this civil proceeding. Travis Cty. Dist. Attorney v. M.M., 354 S.W.3d 920, 923 (Tex. App.-Austin 2011, no pet.). "To be entitled to an expunction under Article 55.01(a)(2)(A)(ii)"-as M.G. specifically pleaded here-"the petitioner is required to prove that the indictment was dismissed because a mistake, false information, or other similar reason caused the presentment of the indictment." In re Expunction of A.M., 511 S.W.3d 591, 596 (Tex. App.-El Paso 2015, no pet.) (citing Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(ii)). A petitioner cannot meet his burden of proving compliance with all statutory requirements for expunction of criminal records with mere allegations in a verified pleading. Ex parte K.R.K., 446 S.W.3d 540, 544 (Tex. App.-San Antonio 2014, no pet.) (noting that "allegations in a petition seeking expunction are not evidence"). Further, a petitioner is not entitled to expunction simply because the State did not pursue the specific charges for which the petitioner was originally arrested. Ex parte Barham, 534 S.W.3d 547, 551 (Tex. App.-Texarkana 2017, no pet.). That fact, without more, does not demonstrate that the original charges were wrongful. Id. In such circumstances, additional information must be provided to demonstrate that the original charges were wrongful before a petitioner may obtain expunction under subsection (a)(2) of article 55.01. Id.

         Standard ...


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