Ex parte R.S.

          On Appeal from County Criminal Court No. 1 Tarrant County, Texas Trial Court No. 1271293

          Before Kerr and Birdwell, JJ; and Michael Massengale (Former Justice, Sitting by Assignment)

          MEMORANDUM OPINION

          Michael Massengale Visiting Justice

         This is an appeal from the denial of a petition for nondisclosure of criminal history information pursuant to recently enacted provisions of Government Code chapter 411, subchapter E-1. Appellant R.S. was charged with driving while intoxicated with a blood alcohol content over 0.15, a Class A misdemeanor. He pleaded guilty to a Class B misdemeanor and was convicted. Appellant subsequently filed a petition for nondisclosure of criminal history information related to the offense. After a hearing, the trial court determined that appellant was ineligible for the nondisclosure procedure and that nondisclosure would not be in the best interest of justice. The petition was denied, and appellant filed a notice of appeal.

         We conclude that we have appellate jurisdiction because appellant has asserted in good faith that the subjective value of the requested order exceeds the minimum $250 amount in controversy necessary in the absence of specific statutory authorization to appeal. However, appellant has failed to demonstrate reversible error in the trial court. While appellant's contention that the trial court erred by finding him ineligible to petition for a nondisclosure order finds support in this court's recent interpretation of the statute in State v. S.M.,^[1] that argument addresses only one part of appellant's burden to justify a reversal. Because the trial court specifically found, after a hearing, that an order of nondisclosure would not be in the best interest of justice under the facts of appellant's offense, and because appellant failed to preserve a record or present any argument challenging that finding, we are compelled to affirm the order of the trial court.

         Background

         After being charged with Class A misdemeanor driving while intoxicated in 2011, appellant pleaded guilty to a lesser-included Class B misdemeanor DWI offense. The plea-bargain agreement recited that appellant's "breath/bloodresults" were ".16." The trial court entered a probation order in 2013 that found appellant "guilty of the offense as charged in the information, a class B misdemeanor," imposed a $750 fine and a 90-day jail sentence, and placed appellant on community supervision for 18 months.

         In 2017, appellant petitioned the trial court to issue an order prohibiting criminal-justice agencies from disclosing to the public "criminal history record information" relating to the 2011 DWI offense. The State responded in opposition, arguing that appellant was ineligible for the nondisclosure procedure. The State noted that appellant's conviction "was based on a plea to facts showing the Driving While Intoxicated conviction involved a single car accident and a Blood Test showing a blood-alcohol concentration of 0.16, over the statutory limit [as] defined in current Texas Penal Code Section 49.04(d)." The State thus argued that appellant did not satisfy the statutory conditions for nondisclosure because he was not "convicted of driving under the influence with a blood-alcohol concentration less than 0.15," and an order of nondisclosure "would be contrary to legislative intent and not in the best interest of justice." In addition to the probation order, the State offered into evidence proof of appellant's blood-alcohol test result of 0.16.

         Applying Government Code section 411.0731, the trial court denied the petition for nondisclosure. The five-page order recited that a hearing on the merits had been held and that the court carefully considered and reviewed the pleadings, evidence, and arguments from counsel. In extensive fact findings and legal conclusions, the trial court found that appellant had been charged with a Class A misdemeanor offense for driving while intoxicated and that the blood-test analysis showed his blood-alcohol content to be 0.16 at the time of the analysis. The court further found that appellant "entered a plea of guilty to Driving While Intoxicated, an offense under Texas Penal Code 49.04 with an accident and a BAC of 0.16" and that he "was found guilty by the trial court for the listed offense, as described in the plea documents."

         The trial court's order outlined the parties' competing arguments and explained its legal conclusions, observing that appellant was convicted "for a Driving While Intoxicated offense under 49.04, Texas Penal Code involving an accident and a BAC of 0.16." It reasoned that appellant's punishment "included probation and an interlock under Art. 42A, Texas Criminal Procedure," and therefore was "'punishable' under provision of 49.04(d), Texas Penal Code." The trial court further reasoned that "[t]here is no requirement under the prohibition of Section 411.0731, Texas Government Code that the person actually be 'punished' under 49.04(d)." The trial court concluded that the statute "only authorizes the filing of a petition for nondisclosure for Driving While Intoxicated offenses probated under Art. 42A with less than a blood-alcohol content of 0.15, along with other mandatory statutory conditions," that appellant "failed to meet his burden by proving all the statutory conditions for an order of nondisclosure, as required [by] section[s] 411.0731 and 411.074 of the Texas Government Code," and that "[a]n order of nondisclosure would not be in the best interest of justice under the facts of this offense." The trial court's order further observed: "The statutory conditions are mandatory and jurisdictional on the court. The court that placed a person on community supervision has jurisdiction to entertain a person's petition for nondisclosure only if there is statutory authority to file the petition."

         There is no reporter's record of the hearing in the trial court. Appellant filed a notice of appeal from the order denying the petition for nondisclosure.

         Analysis

         Appellant's argument on appeal is focused entirely on the trial court's interpretation of statutory language found in Government Code sections 411.0731 and 411.0736,^[2] challenging the determination that he was ineligible to seek the nondisclosure remedy provided by those statutes. At the time this case was briefed, argued, and submitted, there were no reported appellate opinions interpreting or applying these statutes, which were enacted in 2017.^[3] Since then, this court has issued the first appellate opinion applying section 411.0736, which affirmed a trial court's order granting a petition for nondisclosure over the State's objections that a petitioner charged with Class A misdemeanor DWI based on evidence of a blood alcohol content of 0.17, but who was convicted of Class B misdemeanor DWI pursuant to a plea bargain, had committed an offense "punishable" under Penal Code section 49.04(d) and therefore was ineligible for the nondisclosure procedure.^[4]

         I. Appellate jurisdiction

         As part of the review of the record, this court considered whether it has jurisdiction over this appeal from the trial court's order denying the petition for nondisclosure.^[5] Although Government Code chapter 411, subchapter E-1 does not expressly authorize an appeal from a trial court's ruling on a petition for order of nondisclosure of criminal history record information,^[6] based on the general grant of appellate jurisdiction over civil appeals,^[7] this court has exercised appellate jurisdiction over challenges to trial courts' rulings on petitions for nondisclosure.^[8] Appellant was asked to address whether this appeal implicates the requisite amount in controversy to invoke our appellate jurisdiction.^[9]

         In response, appellant referenced the "public criminal record" that was the subject of the petition for nondisclosure, asserting that it "will, by its nature, have long-term implications that will exceed the amount in controversy." Appellant noted that the hearing in the trial court was not held on the record, and "as such there is no record regarding the issue of damages." Nevertheless, appellant contends that "[t]his non-disclosure regards whether or not there will be a public criminal record of the appellant for the conviction of Driving While Intoxicated, which carries with it an obvious societal stigma." Appellant argues that this is "apparent in the legislature's decision to enact this statute to give citizens in Texas an opportunity to remove this from public records," and "the record of ...