Texas Department of Public Safety v. Joseph Daniel Scott--Appeal from 32nd District Court of Mitchell County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

Texas Department of Public Safety

Appellant

Vs. No. 11-02-00367-CV CAppeal from Mitchell County

Joseph Daniel Scott

Appellee

This appeal arises from an attempt by Joseph Daniel Scott to expunge all records and files associated with his arrest for driving while intoxicated. Appellee was charged on May 3, 2002, with the offense of driving while intoxicated (DWI). The prosecutor subsequently filed a motion to dismiss the criminal charge on the express ground of A[n]o probable cause for stop.@ Appellee relies on this dismissal as his basis for seeking expunction. The trial court granted appellee=s expunction request in its entirety.

The record reflects that appellee incurred an administrative suspension of his driver=s license in connection with the DWI arrest.[1] The written order entered by the trial court requires the expunction of all records pertaining to the suspension. In a single issue, the Texas Department of Public Safety (Department) appeals the trial court=s order of expunction insofar as it expunges records relating to the suspension of appellee=s driver=s license. We agree with the Department=s contention that the trial court erred in expunging records relating to the suspension of appellee=s driver=s license.

TEX. CODE. CRIM. PRO. ANN. ch. 55 (Vernon Pamph. Supp. 2003) governs expunction. The right to expunction is not based in common law; rather, it is a statutory privilege granted by the legislature. State v. Herron, 53 S.W.3d 843, 846 (Tex.App. B Fort Worth 2001, no pet=n). An individual is entitled to an expunction only when each of the statutory requirements have been met. Quertermous v. State, 52 S.W.3d 862, 863 (Tex.App. B Fort Worth 2001, no pet=n). An expunction proceeding is civil in nature. State v. Herron, supra at 846-47. The plaintiff seeking expunction bears the burden of proving compliance with the statute. State v. Herron, supra at 846-47.

Article 55.06 provides that records relating to the suspension of a driver=s license may not be expunged except as provided in Sections 524.015 or 724.048 of the Texas Transportation Code. Both of these sections provide that the disposition of a criminal charge does not affect an administrative driver=s license suspension unless the person is acquitted of the charge. See Sections 524.015 & 724.048. If the criminal charge results in an acquittal, the Department is required to rescind the suspension and remove all references to the suspension from the individual=s driving record. Accordingly, the resolution of this appeal hinges on a determination as to whether or not the dismissal of the criminal charge against appellee on the ground of A[n]o probable cause for stop@ constituted an acquittal.

The trial court addressed the acquittal issue in ruling on appellee=s expunction request. At the initial hearing on appellee=s expunction request, the trial court stated on the record that the motion to dismiss constituted the judicial equivalent of an acquittal.[2] The trial court=s written expunction order states as follows:

The Court hereby finds that there was no probable cause for this charge and it has been dismissed for that reason. The Court further finds that jeopardy has attached to the alleged stop and charge. The finding of the lower court constitutes an acquittal and therefore this petition should be granted.[3]

The Department challenges these determinations made by the trial court regarding the dismissal. We note in this regard that the underlying facts are not in dispute. Both parties acknowledge that the criminal charge filed against appellee was dismissed based on the prosecutor=s belief that the arresting officer did not have probable cause to stop appellee. The controversy at issue focuses on an interpretation of the legal effect of the dismissal under the provisions of the Texas Transportation Code. Since the only question at issue is a legal question, we review de novo the trial court=s resolution of the question. See Texas Department of Public Safety v. Stockton, 53 S.W.3d 421, 423 (Tex.App. B San Antonio 2001, pet=n den=d)

The Department bases its challenge on several recent cases which have examined the effect of a dismissal of criminal charges on a related driver=s license suspension. Texas Department of Public Safety v. Stacy, 954 S.W.2d 80, 81 (Tex.App. B San Antonio 1997, no writ), involved an appeal from an administrative driver=s license suspension proceeding. In Stacy, the Department appealed the county court=s judgment overturning the suspension of Stacy=s driver=s license. During the pendency of the appeal, the criminal DWI charge filed against Stacy was dismissed at the county attorney=s request for Ainsufficient evidence to prove guilt beyond a reasonable doubt.@ Texas Department of Public Safety v. Stacy, supra at 81. Stacy sought the dismissal of the appeal of the suspension proceeding based on the dismissal of the corresponding DWI charge.

The San Antonio Court of Appeals analyzed the question of whether the dismissal of the criminal charge filed against Stacy should be treated as an acquittal. The court ultimately determined that the dismissal did not constitute an acquittal under the Transportation Code. Citing Lewis v. State, 889 S.W.2d 403, 406 (Tex.App. BAustin 1994, pet=n ref=d), the court in Stacy held that the dismissal or abandonment of a criminal accusation is tantamount to an acquittal only after jeopardy attaches. The court also relied on a provision of the Texas Administrative Code for the requirement that jeopardy must have attached before a dismissal can constitute an acquittal. See 37 TEX. ADMIN. CODE '17.13(c)(1) (2003) (Tex. Dep=t of Pub. Safety, Effect of Acquittal; Notification to the Department) (AFor purposes of this section, the following types of dispositions of any criminal complaint shall not be regarded as an acquittal: a pre-trial order of dismissal where jeopardy has not attached@). The court ruled that the dismissal of the criminal charge did not constitute an acquittal because jeopardy had not attached. See State v. Torres, 805 S.W.2d 418, 421 (Tex.Cr.App.1991) (Jeopardy attaches when both sides have announced ready and the defendant has pleaded to the charging instrument).

Texas Department of Public Safety v. Norrell, 968 S.W.2d 16, 17-18 (Tex.App. B Corpus Christi 1998, no pet=n), also involved an appeal brought by the Department from a driver=s license suspension proceeding. The prosecutor elected not to file criminal charges against Norrell. Norrell argued that the prosecutor=s decision not to file criminal charges was tantamount to an acquittal and required a rescission of the suspension. The Corpus Christi Court of Appeals held that the prosecutor=s decision not to prosecute did not constitute an acquittal under the Transportation Code. The court based its determination on the manner in which the United States Supreme Court and the Texas Court of Criminal Appeals have defined acquittal. The Supreme Court has defined acquittal as Athe ruling of a judge, whatever its label, [which] actually represents a resolution [in the defendant=s favor], correct or not, of some or all of the factual elements of the offense charged.@ Hackleman v. State, 919 S.W.2d 440, 454 (Tex.App. B Austin 1996, pet=n ref=d, untimely filed)(quoting United States v. Martin Linen Supply Co., 430 U.S. 564 (1977). The Court of Criminal Appeals has defined acquittal as an Aofficial fact finding@ that the accused is not guilty of the criminal offense with which he is charged. Ex parte George, 913 S.W.2d 523, 527 (Tex.Cr.App.1995). The court in Norrell also cited the manner in which the Department has defined acquittal. See 37 TEX. ADMIN. CODE '17.2 (2003) (Tex. Dep=t of Pub. Safety, Definitions) (AA legal judgment or certification of >not guilty= of a person charged with a crime, including a judgment following directed verdict, in a court proceeding at which jeopardy attached@). The court agreed with the holding in Stacy that a defendant cannot be acquitted of an offense unless and until he or she is charged and jeopardy has attached.

Texas Department of Public Safety v. Stockton, supra at 422-23, examined whether a dismissal of a DWI charge after a favorable ruling on a speedy trial motion constituted an acquittal under the Transportation Code. In holding that the dismissal did not constitute an acquittal, the San Antonio Court of Appeals reaffirmed its previous holding in Stacy that a dismissal of a criminal case is equivalent to an acquittal only after jeopardy attaches. The court also relied on a provision of the Texas Administrative Code which explicitly states that Aany discharge or dismissal brought about by a failure to bring a cause of action to speedy trial within the time required by the state or federal constitutions...shall not be regarded as an acquittal@ for purposes of removing Areferences to the suspension from the defendant=s computerized driving record.@ See 37 TEX. ADMIN. CODE '17.13(c)(5) (2003) (Tex. Dep=t of Pub. Safety, Effect of Acquittal; Notification to the Department). Stacy, Norrell, and Stockton are consistent in both their outcomes and analyses. These cases utilized both case law and administrative provisions promulgated by the Department to interpret the meaning of acquittal under the Transportation Code. They adopted a definition of acquittal which comports with the traditional meaning of the term by requiring that jeopardy must attach in order for a dismissal to constitute an acquittal. The trial court acknowledged this requirement in this case as evidenced by its declaration that jeopardy had attached in the criminal proceeding.

Texas courts have historically determined the attachment of jeopardy from a procedural standpoint. Jeopardy attaches when the jury is empaneled and sworn, or for bench trials, when both sides have announced ready and the defendant has pleaded to the charging instrument. See Hill v. State, 90 S.W.3d 308, 313 (Tex.Cr.App.2002); State v. Torres, supra at 421. This method of determining the attachment of jeopardy is beneficial because it provides an objective, bright-line standard. The dismissal entered in this case occurred prior to any of these steps in the criminal proceedings. Irrespective of this fact, appellee contends that jeopardy attached based on the reason given by the prosecutor for the dismissal.

Appellee bases his assertion that jeopardy attached on the argument that the State could never prosecute him for the DWI offense in the future as a result of the prosecutor=s determination that probable cause for the stop did not exist. The Texas Court of Criminal Appeals addressed a similar contention in Neaves v. State, 767 S.W.2d 784 (Tex.Cr.App.1989). In addressing a claim of collateral estoppel, the court held that a finding of no probable cause to arrest an individual for DWI would not necessarily preclude a subsequent prosecution for DWI. Neaves v. State, supra at 786-87. In State v. Rodriguez, 11 S.W.3d 314, 315-16 (Tex.App. B Eastland 1999, no pet=n), we addressed the question of whether or not jeopardy attached to a ruling made on a motion to suppress evidence. The trial court determined that the affidavit supporting the issuance of a search warrant was insufficient to establish probable cause. We concluded that jeopardy did not attach to the ruling on the suppression motion even though the ruling was based on a finding of no probable cause.

In light of the holdings in Neaves and Rodriguez, we disagree with the trial court=s determination that jeopardy had attached to the criminal proceedings brought against appellee. Since jeopardy did not attach to the criminal proceedings, the dismissal of the criminal charge did not constitute an acquittal under the Transportation Code. The Department=s sole issue is sustained.

Insofar as it requires the expunction of records pertaining to the suspension of appellee=s driver=s license, the trial court=s order is reversed; and judgment on that issue is rendered in favor of the Department. In all other matters, the trial court=s expunction order is affirmed.

JIM R. WRIGHT

JUSTICE

September 11, 2003

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]The Texas Transportation Code provides two methods for the administrative suspension of a driver=s license in connection with an arrest for driving while intoxicated. TEX. TRANSP. CODE ANN. ch. 524 (Vernon 1999 & Supp. 2003) governs suspensions when an analysis of a person=s breath or blood specimen shows that he or she is legally intoxicated. See Section 524.011. TEX. TRANSP. CODE ANN. ch. 724 (Vernon 1999 & Supp. 2003) provides for the suspension of a person=s driver=s license when he or she refuses to submit to the taking of a breath or blood specimen at the request of an arresting officer. See Section724.032. The record is silent as to the underlying basis for the suspension of appellee=s driver=s license. The basis for the suspension does not affect the resolution of this appeal.

[2]The trial court revisited the acquittal question during a hearing on the Department=s motion for new trial.

[3]The criminal charge was filed in the County Court of Mitchell County. Appellee filed the expunction proceeding in the 32nd District Court pursuant to Article 55.02, section 2(a).