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Ex parte Daley

Court of Appeals of Texas, Twelfth District, Tyler

June 20, 2018

EX PARTE: CALEB DALEY

          APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT SMITH COUNTY, TEXAS (Tr.Ct.No. 17-1109-A)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          BRIAN HOYLE JUSTICE.

         The State of Texas appeals the trial court's order granting an expunction of Caleb Daley's arrest for online solicitation of a minor. In a single issue, the State contends the trial court erred by granting the expunction. We affirm.

         Background

         Daley was arrested on October 28, 2010, and subsequently charged with online solicitation of a minor that allegedly occurred on or about October 7, 2010. Pursuant to a plea agreement, Daley pleaded "guilty" and the court sentenced him to ten years deferred adjudication community supervision. While Daley was serving his community supervision, the Texas Court of Criminal Appeals held that Section 33.021(b) of the Texas Penal Code, the statute applicable to Daley's arrest, was unconstitutionally overbroad. See Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). Daley was subsequently released from the conditions of his community supervision and his criminal case was dismissed.

         In May 2017, Daley filed a petition to expunge all criminal records and files relating to the October 28, 2010 arrest. In his motion, Daley alleged that he had been released and the charge did not result in a final conviction. He further contended that the indictment had been dismissed and that his case was vacated, set aside, and any and all orders in the case were dismissed. Following a hearing, the trial court granted Daley's petition. This appeal followed.

         Expunction

         In its only issue, the State contends Daley was not entitled to expunction of his arrest record because he served community supervision as a result of the arrest.

         Standard of Review

         We review a trial court's order granting or denying a petition for expunction for abuse of discretion. See 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 "without reference to any guiding rules or principles." E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). If an expunction ruling turns on a question of law, we review it de novo because a "trial court has no 'discretion' in determining what the law is or applying the law to the facts." See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it misinterprets or misapplies the law. Id.

         Governing Law

         Although the law that governs expunctions is part of the code of criminal procedure, an expunction proceeding is civil in nature and is governed by the rules of civil procedure. See Carson v. State, 65 S.W.3d 774, 784 (Tex. App.-Fort Worth 2001, no pet.). Expunction is not a constitutional or common law right, but purely a statutory privilege. Tex. Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex. App.-Austin 2010, no pet.). The trial court must strictly comply with statutory requirements, and has no equitable power to extend the clear meaning of the statute. Harris Cty. Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.-Houston [14th Dist.] 1997, no pet.).

         Texas Code of Criminal Procedure Article 55.01(a)(2) states, in relevant part, that a person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if (1) the person has been released, (2) the charge, if any, has not resulted in a final conviction, (3) the charge, if any, is no longer pending, and (4) there was no court-ordered community supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (West 2018). "The traditional and primary purpose of the expunction statute is to remove records of wrongful arrests." S.J. v. State, 438 S.W.3d 838, 841 (Tex. App.-Fort Worth 2014, no pet.). Thus, the expunction statute is "arrest-based" and expunction is not available for less than all offenses arising from one arrest. Id. at 844; but see State v. T.S.N., No. 17-0323, 2018 WL 2169785, at *6 (Tex. March 1, 2018) (holding that Article 55.01 is not entirely arrest-based but declining to address the specifics of 55.01(a)(2)); see also Black's Law Dictionary 116, 248, 1110 (8th ed. 2004) (defining an "arrest, " in pertinent part, as a "taking or keeping of a person in custody by legal authority, esp. in response to a criminal charge, " whereas a "charge" accuses someone of an offense, i.e., a "violation of the law"). In other words, a person is not entitled to have any arrest records expunged under Article 55.01(a)(2) when a charge is dismissed, but that dismissal results in a final conviction of any charge arising from the same arrest. See Tex. Dep't of Public ...


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