Ex parte T.C.R.--Appeal from 13th District Court of Navarro County

IN THE

TENTH COURT OF APPEALS

No. 10-06-00169-CV

Ex parte T.C.R.

From the 13th District Court

Navarro County, Texas

Trial Court No. 05-00-14412-CV

MEMORANDUM Opinion

The Texas Department of Public Safety brings this restricted appeal of the trial court s order ordering the expunction of records of T. C. R. s arrest for burglary. See Tex. R. App. P. 30; Tex. Code Crim. Proc. Ann. art. 55.01(a), (b)-(d) (Vernon Supp. 2006); id. art. 55.02, 1, 2(a)-(c) (Vernon Supp. 2006); Act of May 28, 2003, 78th Leg., R.S., ch. 1126, 1, sec. (d), 2003 Tex. Gen. Laws 3214, 3214 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 55.02, 2(d) (Vernon Supp. 2006)); Act of May 24, 2001, 77th Leg., R.S., ch. 945, 2, sec. (e), 2001 Tex. Gen. Laws 1896, 1897 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 55.02, 2(e) (Vernon Supp. 2006)); Tex. Code Crim. Proc. Ann. art. 55.02, 2(f), 2a-5 (Vernon Supp. 2006); Act of May 31, 2003, 78th Leg., R.S., ch. 1236, 3, 2003 Tex. Gen. Laws 3499, 3500 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 55.03 (Vernon Supp. 2006)); Tex. Code Crim. Proc. Ann. arts. 55.04-55.06 (Vernon Supp. 2006) (expunction); Act of May 25, 1967, 60th Leg., R.S., ch. 505, 1, 1967 Tex. Gen. Laws 1141, 1141 (amended 1973-1999) (current version at Tex. Penal Code Ann. 30.02 (Vernon 2003)) (burglary). We reverse.

T. C. R. contends that we lack jurisdiction over the Department s appeal. A restricted appeal may be brought only by [a] party who did not participate either in person or through counsel in the hearing that resulted in the judgment complained of. Tex. R. App. P. 30. T. C. R. argues that the Department participated in the expunction hearing through the district attorney. [T]he district attorney d[oes] not represent D.P.S. in expunction hearings because the hearing is a civil proceeding in which each law enforcement agency is entitled to represent itself. Ex parte Stiles, 958 S.W.2d 414, 417 (Tex. App. Waco 1997, pet. denied) (expunction) (writ of error) (quoting Tex. Dep t of Pub. Safety v. Deck, 954 S.W.2d 108, 111 (Tex. App. San Antonio 1997, no writ)); accord Ex parte Andrews, 955 S.W.2d 178, 179-80 (Tex. App. Waco 1997, no pet.) (expunction). The procedure established by the legislature for expunction hearings is unique because each law enforcement agency listed in the petition who has records which are subject to expunction may appear in court to oppose the expunction and may appeal the court s decision in the same manner as in other civil cases. Stiles at 417 (quoting Tex. Code Crim. Proc. Ann. art. 55.02, 3(a)); see Tex. Code Crim. Proc. Ann. art. 55.02, 2(a)-(c). Thus, because each agency may make a separate appearance in court and may separately appeal the decision, one agency does not represent the others in court and does not participate in the trial on behalf of all agencies notified of the expunction. Stiles at 417. At the hearing, the district attorney stated that he was advocating a position contrary to that of the Department. The Department did not participate in the hearing through the district attorney. We have jurisdiction over the Department s appeal.

In the Department s one issue, it contends that the there was no evidence that T. C. R. was entitled to expunction. In reviewing a no-evidence legal-sufficiency issue, the reviewing court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

No evidence points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.

City of Keller, 168 S.W.3d at 810 (quoting Robert W. Calvert, No Evidence and Insufficient Evidence Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960)).

The parties dispute only whether T. C. R. met the requirement that there . . . was no court ordered community supervision under Article 42.12 . . .[ .] (T. C. R. Br. at 5 [(quoting Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B))]); see Tex. Code Crim. Proc. Ann. art. 42.12 (Vernon Supp. 2006). The Department argues that T. C. R. did not meet the requirement, because the sentencing court ordered community supervision. T. C. R. argues that he should be entitled to expunction, since he satisfactorily completed his community supervision.

The expunction statute provides:

A person who has been placed under 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:

. . .

. . . each of the following conditions exist:

(A) . . . [I]f an indictment or information charging the person with commission of a felony was presented, the indictment or information has been dismissed or quashed, and:

(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or

(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable cause at the time of the dismissal to believe the person committed the offense or because it was void;

(B) 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 Article 42.12 for any offense other than a Class C misdemeanor; and

(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.

Tex. Code Crim. Proc. Ann. art. 55.01(a); see id. art. 55.02, 2(a)-(c); see also id. (c-1) (Vernon Supp. 2006).

T. C. R. s petition for expunction alleged that he had been arrest[ed] for and charged with burglary, and alleged:

Petitioner is entitled to expunction of all records and files relating to said alleged offense of Burglary under Article 55.01(a)(1)(B) of the Texas Code of Criminal Procedure, because Petitioner was tried and convicted for the offense, but subsequently it was ordered that the original sentence and period of probation in this cause be reduced and terminated, and that the Defendant herein be discharged from said sentence and order of probation, and that the verdict of conviction in this cause be set aside, and that the indictment in this cause be dismissed, and that said Defendant is released from all penalties and disabilities.

(C.R. at 3-4); see Tex. Code Crim. Proc. Ann. art. 55.01(a)(1)(B). T. C. R. stipulated that he was convicted and did serve a period of probation. (R.R. at 7.) T. C. R. concedes, moreover, that he was convicted and placed on probation; however, his probation was terminated, his conviction set aside and the conviction was dismissed. (Br. at 5.)

T. C. R. argues:

Because [T. C. R.] s probation was terminated, his conviction was set aside and the case was dismissed, the simple fact that he was on probation should not prevent expunction. It was certainly not the intent of the legislature to prevent expunction where as here the probation was terminated and the conviction set aside.

(Br. at 5.) However,

The right to expunction is . . . a statutory privilege. . . . . In a purely statutorily created cause of action, all the statutory provisions are mandatory and exclusive, and a person is entitled to expunction only when all of the statutory conditions have been met. The court has no equitable power to extend the clear meaning of the statute.

Thomas v. State, 916 S.W.2d 540, 543 (Tex. App. Waco 1995, no writ); accord Ex parte Thomas, 956 S.W.2d 782, 787 (Tex. App. Waco 1997, no pet.) (expunction); Collin County Crim. Dist. Att y s Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App. Dallas 2005, no pet.) (expunction); see State v. Autumn Hills Ctrs., Inc., 705 S.W.2d 181, 182-83 (Tex. App. Houston [14th Dist.] 1985, no writ) (expunction). The statute s plain language does not support the equitable expansion that T. C. R. proposes.

T. C. R. also argues that the Department invited error in the district attorney s statement that he did not oppose the expunction. (Br. at 5.) For the reasons stated above, the district attorney did not represent the Department at the expunction hearing.

Considered in the light most favorable to the expunction court s order, the evidence conclusively establishes that the sentencing court put T. C. R. on community supervision for the offense concerning which T. C. R. seeks to have records expunged. There was no evidence that there was no court-ordered community supervision under Code of Criminal Procedure Article 42.12, and thus no evidence that T. C. R. is entitled to expunction of those records. We sustain the Department s issue.

Having sustained the Department s sole issue, we reverse and render judgment denying T. C. R. s petition for expunction.

TOM GRAY

Chief Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Reversed and rendered

Opinion delivered and filed January 10, 2007

[CV06]