IN RE EXPUNCTION
NO. 01-14-00168-CV
Court of Appeals of Texas, Houston (1st Dist.).
Opinion issued April 23, 2015
OPINION ON REHEARING April 23, 2015
466 S.W.3d 283
Jane Bland, Justice
Norman‘s third issue is overruled.
III.
CONCLUSION
Having overruled Norman‘s remaining issues on appeal, we affirm the trial court‘s judgment.
Stanley G. Schneider, Tom Moran, Schneider & McKinney, P.C., Houston, TX, for Appellee.
Panel consists of Justices Higley, Bland, and Lloyd.
OPINION ON REHEARING
Jane Bland, Justice
The State of Texas appeals from an order of expunction of criminal records granted to Philip Dean Cassidy. After we issued our opinion in this case, Cassidy moved for rehearing. We deny the motion, but withdraw our opinion and judgment and issue this opinion and judgment in its stead; our disposition is unchanged. We reverse and render judgment denying the request for an expunction.
Background
On October 6, 2011, Cassidy was arrested and charged with indecency with a child by sexual contact, criminal attempt, a felony of the third degree, in a Texas district court. See
In August 2013, Cassidy filed a petition for expunction in the trial court, asking that all records and files related to his arrest for the felony charge be expunged, pursuant to
After a hearing at which Cassidy testified, the trial court granted Cassidy‘s petition and ordered the records related to the October 6, 2011 arrest expunged. The State filed a motion for new trial, which was overruled by operation of law. The State now appeals.
The State raises two arguments on appeal. First, it argues that an expunction applies to an entire arrest, not to individual charges resulting from an arrest, and both Cassidy‘s felony and misdemeanor charges resulted from the same arrest. Second, the State argues that Cassidy bore and failed to meet the burden to prove his entitlement to expunction of the felony offense.
Standard of Review
This Court reviews a trial court‘s grant or denial of a petition for expunction under an abuse of discretion standard. Tex. Dep‘t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.--Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep‘t of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.- Austin 2002, pet. denied). A trial court abuses its discretion if it renders a decision that is arbitrary, unreasonable, or without reference to guiding rules and principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996); J.H.J., 274 S.W.3d at 806. When, as here, the trial court makes no findings of fact separate from the order granting the expunction, we draw every reasonable inference that is supported by the record in favor of the trial court‘s judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); J.H.J., 274 S.W.3d at 806. A trial court‘s legal conclusions, however, we review de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996); J.H.J., 274 S.W.3d at 806. A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992). We will uphold a trial court‘s legal conclusions if its judgment is sustainable on any legal theory supported by the evidence. J.H.J., 274 S.W.3d at 806.
Expunction is a statutory privilege, not a constitutional or common-law right. Id.; McCarroll v. Tex. Dep‘t of Pub. Safety, 86 S.W.3d 376, 378 (Tex.App.- Fort Worth 2002, no pet.). Further, although the expunction statute is located in the Texas Code of Criminal Procedure, an expunction proceeding is civil rather than criminal in nature. J.H.J., 274 S.W.3d at 806; Harris Cnty. Dist. Att‘y v. Lacafta, 965 S.W.2d 568, 569 (Tex.App.-Houston [14th Dist.] 1997, no pet.). The petitioner seeking an expunction carries the burden of proving that all statutory requirements have been satisfied. J.H.J., 274 S.W.3d at 806; Lacafta, 965 S.W.2d at 569; Harris Cnty. Dist. Att‘y v. Hopson, 880 S.W.2d 1, 3 (Tex.App.-Houston [14th Dist.] 1994, no writ). Neither this Court nor the trial court has any equitable power to extend the protections of the expunction statute beyond its stated provisions. See J.H.J.,
Expunction of criminal records is governed by
A petitioner for expunction under
(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person‘s arrest or charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:
(i) has not been presented against the person at any time following the arrest ... or
(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because the person completed a pretrial intervention program authorized under
Section 76.011, Government Code , or 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 the indictment or information it was void; or(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.
A plea of nolo contendere has the same legal effect as a plea of guilty, except that the former “may not be used against the defendant as an admission in any civil suit based upon or growing out of the act upon which the criminal prosecution is based.”
Nature of Expunction
In its first issue, the State argues that expunction is available solely at the level of an arrest and not at the level of individual offenses charged on the basis of a given arrest. In other words, Cassidy is entitled
Cassidy raises three arguments in response. First, he contends that he was arrested not once but twice, once for each charge. Second, he argues that the misdemeanor charge of assault causing bodily injury is not a lesser-included offense of indecency with a child. Finally, he argues that this Court‘s binding precedent requires us to hold that expunction is available on a per-offense basis rather than a per-arrest basis. We address Cassidy‘s stare decisis argument first.
A. Stare decisis
We have previously considered whether expunction applies to an entire arrest or may apply to individual charges. In Ex parte E.E.H., 869 S.W.2d 496 (Tex.App.-Houston [1st Dist.] 1993, writ denied), we considered a case in which E.E.H. had been arrested and charged with one felony drug charge, misdemeanor driving while intoxicated, and misdemeanor possession of marijuana. Id. at 497. The grand jury returned a no bill on the felony offense, the State moved to dismiss the DWI charge, and E.E.H. received a conditional discharge on the possession of marijuana charge. Id. The latter was dismissed after E.E.H. completed the terms of her probation, and E.E.H. later petitioned for expunction of the felony charge and the DWI charge. Id. We held that
We based our holding in Ex parte E.E.H. on several factors. First, E.E.H. was never formally charged with the felony by indictment or information. Id. Second, we emphasized that the State had moved for dismissal of the DWI charge, which “render[ed] its record amenable to expunction.” Id. Third, we noted that E.E.H. had not been convicted of a felony in the five years preceding her arrest, a condition of the then-effective form of
The doctrine of stare decisis requires us to treat as binding the precedents of higher courts, as well as our own precedents unless overruled by a higher court or abrogated by statute. See Weiner v. Wasson, 900 S.W.2d 316, 320 (Tex.1995) (“Generally, we adhere to our precedents for reasons of efficiency, fairness, and le-
Cassidy argues that Ex parte E.E.H. is binding and requires us to affirm the trial court‘s decision in this case. Because intervening changes to the statutory text have changed its meaning, we disagree.
In the twenty years since we decided Ex parte E.E.H., the legislature has amended
The legislature‘s 2011 changes to
This case is similar to Texas Department of Public Safety v. Dicken, 415 S.W.3d 476 (Tex.App.-San Antonio 2013, no pet.), in which the court of appeals
The other courts that have considered
We hold that
B. Number of arrests
Cassidy argues that his misdemeanor charge did not arise out of his October 6, 2011 arrest. In his view, a second arrest occurred when he presented himself to the County Court at Law to enter a plea in connection with the misdemeanor and the “second arrest” is not related to the first. Cassidy objects to records from the criminal proceedings attached to the State‘s brief setting forth the plea agreement relating to both charges because the State did not introduce the criminal records into evidence in the civil expunction case.
We reject Cassidy‘s argument that he was subject to two different arrests at different times. First, nothing in the record indicates whether Cassidy was in the custody of law enforcement at the time of his plea appearance or appeared voluntarily; thus, no evidence demonstrates that a second arrest occurred or that the charges were separate. Because the State filed a general denial in this case, all facts supporting Cassidy‘s petition were placed at issue. Tex. Dep‘t of Pub. Safety v. Moran, 949 S.W.2d 523, 526 (Tex.App.-San Antonio 1997, no writ.);
Cassidy relies on Harris County District Attorney‘s Office v. Burns, 825 S.W.2d 198 (Tex.App.-Houston [14th Dist.] 1992, writ denied), in which our sister court held that an applicant for expunction had been arrested when he learned of a warrant for his arrest and later voluntarily appeared in the issuing court. Id. at 202. He spoke to the bailiff and waited for approximately an hour before being released on a bond. Id. Our sister court concluded that this constituted an arrest on the warrant for purposes of the expunction statute. Id. But the facts of Cassidy‘s case are different from those in Burns. The critical issue in this case is whether the assault charge resulted from the same arrest as the felony charge, not whether an arrest took place. Burns addressed only whether an arrest had occurred for purposes of the expunction statute then in effect. 825 S.W.2d at 202. It does not support Cassidy‘s argument. Rather, the misdemeanor charge was part of a deferred adjudication agreement that resulted in dismissal of the felony for which he was arrested.2
C. Lesser-included offense
Cassidy also responds to the State by arguing that expunction is proper because the misdemeanor charge of assault causing bodily injury is not a lesser-included offense of the felony charge of indecency with a child, criminal attempt. While it is true that the State argued at the expunction hearing that the misdemeanor charge was a lesser-included offense of the felony, the State does not make this argument on appeal. The argument, moreover, is irrelevant. Nothing in
Cassidy‘s Entitlement to Expunction
Cassidy was neither acquitted nor convicted on the felony charge, the felony charge is no longer pending, and he was not placed under court-ordered community supervision for that offense pursuant to
Cassidy could meet his evidentiary burden by satisfying either
A. Article 55.01(a)(2)(A)
To obtain expunction under
Cassidy cannot meet the first test because he admitted in his answer that “[a]n indictment was presented against [him] for an offense arising out of the transactions for which he was arrested.” This is a judicial admission and binding upon Cassidy, the trial court, and this Court. See, e.g., Tex. Dep‘t of Pub. Safety v. Six, 25 S.W.3d 368, 370 (Tex.App.-Fort Worth 2000, no pet.).
Cassidy also failed to show that he met the requirements of
We hold that Cassidy is not entitled to expunction of the felony charge under
B. Article 55.01(a)(2)(B)
Cassidy could also obtain expunction if he could establish that he is no longer subject to prosecution for the felony because the limitations period has expired.
The record does not support a finding that Cassidy satisfied the requirements of
Conclusion
Because Cassidy was not entitled to an expunction of his arrest record, we reverse and render judgment denying the request for an expunction.
Jane Bland
Justice