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In re Garza

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

May 16, 2019

IN RE DIANA POLANCO GARZA

          On appeal from the 197th District Court of Cameron County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes.

          MEMORANDUM OPINION

          NORA L. LONGORIA, JUSTICE.

         Appellant, the Texas Department of Public Safety (the Department), argues on appeal that the trial court erred by granting appellee Diana Polanco Garza's petition for expunction. We affirm in part, and we reverse and render in part.

         I. Background

         On August 27, 1994, Garza was arrested and later charged by indictment with possession and delivery of a controlled substance (cocaine). See Tex. Health & Safety Code Ann. §§ 481.102(3)(d), 481.112, 481.115(b) (West, Westlaw through 2017 1st C.S.). Pursuant to a plea agreement, the delivery charge was dismissed, and Garza pleaded guilty to the possession charge. The trial court sentenced Garza to seven years of deferred adjudication community supervision.

         On September 18, 2017, Garza filed a petition to expunge all the records relating to her 1994 arrest; Garza also sought to expunge all records relating to an arrest in 1993, in which she was allegedly charged with theft. See Tex. Penal Code Ann. § 31.03 (West, Westlaw through 2017 1st C.S.). On October 31, 2017, the Department filed an answer denying that Garza was entitled to an expunction of the 1994 arrest records because she served a term of community supervision for that arrest. The Department did not address the 1993 arrest for theft. The trial court signed an order on November 8, 2017 granting the expunction of the records of both the 1993 and 1994 arrests. The Department filed a notice of restricted appeal on April 24, 2018.

         II. Standard of Review and Applicable Law

         Although expunction proceedings are typically reviewed under an abuse of discretion standard, when the trial court's ruling turns on a question of law, it is reviewed de novo. See Tex. Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 678 (Tex. App.-Austin 2010, no pet.); see also Ex parte T.C., No. 12-13-00138-CV, 2014 WL 4104806, at *3 (Tex. App.-Tyler Aug. 20, 2014, no pet.) (mem. op.). Under a de novo standard, we conduct an independent analysis of the record, giving no deference to the trial court's conclusions. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). Statutory construction is also a question of law that requires de novo review. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003).

         The expunction statute is intended to eradicate records of wrongful arrests by allowing a person to remove all information regarding his or her arrest. See In re State Bar, 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). Chapter 55 of the Texas Code of Criminal Procedure sets forth the requirements and procedures governing the expunction of criminal records. See generally Tex. Code Crim. Proc. Ann. arts. 55.01- 55.06 (West, Westlaw through 2017 1st C.S.). Under Article 55.01:

(a) 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:
. . .
(2) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision under Chapter 42A for the offense, unless the offense is a Class C misdemeanor . . . .

Id. art. 55.01(a)(2) (emphasis added). "[F]or a petitioner to be entitled to expunction under article 55.01, all charges arising from the arrest must meet that article's requirements." S.J. v. State, 438 S.W.3d 838, 845 (Tex. App.-Fort Worth 2014, no pet.) (emphasis added). In other words, "individual charges within an arrest" are not subject to expunction; an arrest can only be expunged if every offense arising from that arrest meets the requirements of article 55.01. Id.; see Ex parte Vega, 510 S.W.3d 544, 548 (Tex. App.- Corpus Christi 2016, no pet.); Travis Cty. Dist. Atty. v. M.M., 354 S.W.3d 920, 927 (Tex. App.-Austin 2011, no pet.); see also Ex parte M.R.L., No. 10-11-00275-CV, 2012 WL 763139, at *3 (Tex. App.-Waco Mar. 7, 2012, pet. denied) ...


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