Ex Parte S.E.W.
04-16-00255-CV
| Tex. App. | Feb 15, 2017Background
- In 2006 S.E.W. was arrested on two offenses: theft and securing execution of a document by deception.
- S.E.W. pleaded guilty to securing execution by deception and received six months deferred adjudication community supervision in 2008.
- The State moved to dismiss the theft charge in March 2008; the dismissal order was signed the same day with the stated reason “P.I.F.”
- In September 2015 S.E.W. filed a petition to expunge the theft arrest records.
- The Texas Department of Public Safety (DPS) answered but did not appear at the hearing; the trial court granted expunction under art. 55.01(a)(2).
- DPS filed a restricted appeal arguing the expunction statute is arrest-based and S.E.W. was ineligible because she received court-ordered community supervision for one of the offenses from the same arrest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expunction eligibility under art. 55.01(a)(2) is offense-based or arrest-based | S.E.W.: statute should allow expunction of records for the dismissed theft charge because the offenses were distinct and dismissed | DPS: statute is arrest-based; if any charge from the arrest resulted in court-ordered community supervision, the arrestee is ineligible for expunction of all records relating to that arrest | Court: statute is arrest-based; because S.E.W. received community supervision for one offense from the arrest, she is not entitled to expunge all records related to the arrest — trial court order reversed and expunction denied |
Key Cases Cited
- Pike-Grant v. Grant, 447 S.W.3d 884 (Tex. 2014) (standards for restricted appeal)
- Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269 (Tex. 1997) (scope of record on restricted appeal)
- In re D.M.B., 467 S.W.3d 100 (Tex. App.—San Antonio 2015, pet. denied) (restricted-appeal record includes papers on file)
- Ex parte K.R.K., 446 S.W.3d 540 (Tex. App.—San Antonio 2014, no pet.) (standard of review for expunction rulings and statutory construction)
- Alex Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006) (Legislature sometimes amends statutes in response to court decisions)
- Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170 (Tex. 2004) (legislative amendments can respond to appellate rulings)