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Texas Department of Public Safety v. T.R.W.

Court of Appeals of Texas, Fourteenth District

August 8, 2019

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
v.
T.R.W., Appellee

          On Appeal from the 207th District Court Hays County, Texas Trial Court Cause No. 16-1887

          Panel consists of Justices Christopher, Bourliot, and Spain.

          MEMORANDUM OPINION

          FRANCES BOURLIOT, JUSTICE

         The Texas Department of Public Safety appeals from the trial court's order expunging records and files relating to a misdemeanor theft charge against T.R.W. The trial court's expunction order addresses multiple charges stemming from two different dates-October 31, 2011 and January 2, 2012-but DPS only challenges the expunction of the theft charge filed on the latter date.[1]

         In regards to the January 2, 2012 theft charge, DPS contends in two issues that (1) the trial court misinterpreted the expunction statute and (2) the expunction ruling was not supported by legally sufficient evidence. Because T.R.W. did not present evidence establishing her entitlement to expunction of the January 2, 2012 theft charge, we modify the trial court's expunction order to remove the language ordering expunction of records and files pertaining to that charge. We affirm the order as modified.

         This case was transferred to this court from the Third Court of Appeals by a Texas Supreme Court transfer order. We must therefore decide the case in accordance with the precedent of the Third Court of Appeals if our decisions otherwise would have been inconsistent with that court's precedent. See Tex. R. App. P. 41.3.

         Background

         T.R.W. was arrested on January 2, 2012 and charged with both misdemeanor theft and misdemeanor possession of a controlled substance. Both offenses were also alleged to have occurred on January 2, 2012, but the record does not contain any other details concerning the circumstances involved. T.R.W. and the State thereafter entered a plea agreement. Pursuant to this agreement, T.R.W. entered a Pre-Trial Intervention Program (PTI) in regards to the theft charge. She further pleaded no contest to the possession charge and was sentenced to deferred adjudication. Under the terms of her deferred adjudication, T.R.W. was sentenced to two years of community supervision.

         After T.R.W. successfully completed the terms of her PTI, the theft charge was dismissed. After she completed the terms of her deferred adjudication, the possession charge was likewise dismissed. On September 12, 2016, T.R.W. requested an order of nondisclosure under Texas Government Code chapter 411, subchapter E-1 regarding records pertaining to the possession charge. This request was granted on October 19, 2016. T.R.W. also filed her petition for expunction on September 12, 2016, requesting expunction of records and files pertaining to her theft charge pursuant to Texas Code of Criminal Procedure article 55.01(a)(2).[2]

         DPS filed an answer asserting principally that because T.R.W. received community supervision for the possession charge stemming from the same arrest, she was not entitled to have records expunged relating to the theft offense under article 55.01(a)(2). Despite notice, however, DPS failed to appear for the hearing on the petition for expunction.

         At the hearing, T.R.W.'s counsel addressed the community supervision issue raised by DPS by asserting that because the records relating to the possession charge were subject to a nondisclosure order, DPS could not rely on the possession charge to contest expunction of the theft charge. Counsel additionally argued that DPS (as a representative of the State) was estopped from contesting expunction of the theft charge because the PTI documents relating to that charge stated T.R.W. could get records relating to the charge expunged upon successful completion of the terms of the PTI.

         Also at the hearing, an assistant district attorney from the Hays County District Attorney's Office appeared and pointed out that someone from that office had signed the proposed expunction order as "Approved." The assistant district attorney also indicated that the district attorney's office was not challenging T.R.W.'s entitlement to expunction. At the conclusion of the hearing, the trial court ordered that the records pertaining to T.R.W.'s theft charge be expunged.

         DPS now brings this restricted appeal. In its first issue, DPS asserts that the trial court misinterpreted the statute in ordering expunction, arguing that because T.R.W. received community supervision for one offense stemming from her January 2, 2012 arrest, her records cannot be expunged for any offense stemming from that arrest. In its second issue, DPS asserts that the evidence was legally insufficient to establish T.R.W.'s entitlement to expunction of the records pertaining to the theft offense.

         Standards of Review

         In a restricted appeal, the appellant must demonstrate that: (1) it filed notice of the appeal within six months after the judgment was signed, (2) it was a party to the underlying lawsuit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014). It is undisputed in this case that DPS has satisfied the first three requirements for a successful restricted appeal. The absence of legally sufficient evidence to support a judgment is reviewable in a restricted appeal as error apparent on the face of the record. Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); Arbogust v. Graham, No. 03-17-00800-CV, 2018 WL 3150996, at *1 (Tex. App.-Austin June 28, 2018, no pet.) (mem. op.).

         DPS contends that the trial court misinterpreted the requirements of the statute and that the evidence presented at the expunction hearing was legally insufficient to support the order. We review the trial court's interpretation of a statute de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655-56 (Tex. 1989). In doing so, our primary objective is to effectuate the legislature's intent. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We ascertain intent by first looking to the plain and common meaning of the words used in the statute. Id. at 625-26. We rely on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is apparent from the context, or unless such a construction would lead to absurd results. Id.; see also Tex. Gov't Code § 311.011. We view terms in context to give them full effect. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002). And, we presume that the legislature intended a just and reasonable result. City of Rockwall, 246 S.W.3d at 626.

         In deciding whether the trial court abused its discretion in making an expunction determination, we consider whether the trial court's ruling is supported by the evidence. Ex parte Brown, No. 14-17-00695-CV, 2018 WL 3977174, at *2 (Tex. App.-Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.) (citing Tex. Dep't of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.-Austin 2014, pet. denied) (en banc)). When reviewing for legal sufficiency, we consider the evidence in the light most favorable to the trial court's finding and indulge every reasonable inference that supports the challenged finding. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. We will sustain a legal sufficiency challenge if the record reveals: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. Id. at 810; G.B.E., 459 S.W.3d at 624.

         Expunction Law

         The remedy of expunction allows a person who has been arrested to have all records and files relating to the arrest removed from the State's records if she meets the statutory requirements set out in the expunction statute, chapter 55 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. arts. 55.01-.06; Tex. Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex. App.-Austin 2010, no pet.). Expunction is not a right but a statutory privilege, and the petitioner bears the burden of proving that each of the required conditions have been met. G.B.E., 459 S.W.3d at 625. To carry this burden, the petitioner must provide more than mere allegations in a verified pleading. Tex. Dep't of Pub. Safety v. J.W.M., No. 03-17-00792-CV, 2018 WL 6519696, at *3 (Tex. App.-Austin Dec. 12, 2018, no pet.) (mem. op.). A trial court must strictly comply with the statutory requirements and has no equitable power to expand the remedy's availability beyond what the legislature has provided. Nail, 305 S.W.3d at 675.

         The expunction statute identifies several different circumstances under which expunction is permitted, including acquittal, pardon, on recommendation by a prosecutor, and when charges are dismissed. Tex. Code Crim. Proc. art. 55.01; see also State v. T.S.N., 547 S.W.3d 617, 623 (Tex. 2018) ("Different parts of the article, including the expunction requirements, address different factual situations . . . ."). Each potential avenue has requirements that must be satisfied before expunction may be ordered. See id. at 620 ("A person is not entitled to expunction until all of the statutory conditions are met."). As mentioned, T.R.W. sought expunction specifically pursuant to article 55.01(a)(2), which at the time she filed her petition provided in full:

(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 ...

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