Ex Parte Forestt R. Cain
04-17-00172-CV
| Tex. App. | Jan 10, 2018Background
- In 2010 Cain was arrested and later indicted (2010, 2013) for theft by a public servant and misapplication of fiduciary property related to his role as Windcrest city manager; indictments were dismissed by the district attorney on October 1, 2015.
- Cain filed a petition for expunction in March 2016 seeking removal of "all records and files relating to his arrest."
- The trial court granted the expunction; the City of Windcrest and Windcrest Police Department appealed.
- The central factual point: limitations had expired for the misapplication-by-fiduciary charge (7-year limitations) but had not expired for the theft-by-public-servant charge (10-year limitations).
- The dispositive legal question was whether an expunction must show limitations expired for every offense arising from the same arrest (i.e., whether expunction is "arrest-based" rather than "offense-based").
Issues
| Issue | Cain's Argument | Windcrest's Argument | Held |
|---|---|---|---|
| Whether petitioner must show statute-of-limitations has expired for every offense arising from a single arrest to obtain an expunction | Expunction is arrest-based but he sought expunction only for records relating to the fiduciary misapplication offenses and those limitations had expired | Expunction is arrest-based and petitioner must prove all offenses from the arrest meet Article 55.01 requirements, including expiration of limitations | Court held petitioner must prove limitations expired for every offense arising from the arrest; because limitations had not expired for theft by a public servant, expunction was improper |
Key Cases Cited
- Ex parte K.R.K., 446 S.W.3d 540 (Tex. App.—San Antonio 2014) (expunction is a statutory privilege and petitioner must meet each Article 55.01 requirement)
- Tex. Dep't of Pub. Safety v. Dicken, 415 S.W.3d 476 (Tex. App.—San Antonio 2013) (Article 55.01 requires strict compliance; expunction is arrest-based)
- Ex parte Green, 373 S.W.3d 111 (Tex. App.—San Antonio 2012) (reiterating expunction is statutory and condition-based)
- S.J. v. State, 438 S.W.3d 838 (Tex. App.—Fort Worth 2014) (Chapter 55 contemplates expunging records relating to an arrest, not individual charges)
- Travis Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920 (Tex. App.—Austin 2011) (statute addresses arrests as the unit of expunction)