TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Joshua Jack NAIL, Appellee.
No. 03-08-00435-CV.
Court of Appeals of Texas, Austin.
Jan. 8, 2010.
305 S.W.3d 673
We reverse the district court‘s denial of T.C.R.‘s expunction petition and remand to the district court for the entry of appropriate orders expunging the files and records related to Cause Nos. 47,176 and 47,563. See
date more than ten years beyond even the dismissal date of the sexual assault charge and more than five years beyond the dismissal date of the burglary charge.
Laird Palmer, Mason, TX, for Appellee.
Joshua Jack Nail, Mason, TX, pro se appellee.
Before Justices PATTERSON, PEMBERTON and WALDROP.
ON MOTION FOR REHEARING
BOB PEMBERTON, Justice.
We grant the Texas Department of Public Safety‘s (DPS‘s) motion for rehearing, withdraw our opinion and judgment dated June 24, 2009, and substitute the following in its place. We dismiss DPS‘s motion for reconsideration en banc as moot.
Joshua Jack Nail was arrested and subsequently charged with the misdemeanor offense of furnishing alcohol to a minor. Pursuant to a plea bargain, Nail pled nolo contendere to the charge and received thirty days’ deferred adjudication with a fine and court costs. After he served this term of deferred adjudication and the charge was dismissed, Nail sought to expunge records relating to his arrest. Over the opposition of DPS, the district court granted expunction. DPS appeals. The principal issue on appeal concerns whether
We recently summarized the principles that govern the availability of the expunction remedy in Texas:
Expunction—the remedy through which a person who has been arrested for the commission of an offense can have all information about the arrest removed from the State‘s records—is not a constitutional or common-law right, but purely a statutory privilege. See Heine v. Texas Dep‘t of Pub. Safety, 92 S.W.3d 642, 648 (Tex.App.-Austin 2002, pet. denied); McCarroll v. Texas Dep‘t of Pub. Safety, 86 S.W.3d 376, 378 (Tex.App.-Fort Worth 2002, no pet.); Harris County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex.App.-Houston [14th Dist.] 1997, no pet.).
Article 55.01(a) of the code of criminal procedure creates a cause of action through which a person can establish an entitlement to expunction. SeeTex.Code Crim. Proc. Ann. art. 55.01(a) ; Heine, 92 S.W.3d at 648. Althougharticle 55.01 is located in the code of criminal procedure, the cause of action it creates is civil rather than criminal in nature. Texas Dep‘t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.).Article 55.01 imposes a number of conditions or elements that the petitioner has the burden of proving; unless the petitioner meets each element, there is no right to the expunction remedy. Id.; Harris County Dist. Attorney‘s Office v. Hopson, 880 S.W.2d 1, 3 (Tex.App.-Houston [14th Dist.] 1994, no writ). The trial court must strictly comply with the statutory requirements, and has no equitable power to expand the remedy‘s availability beyond what the legislature has provided. Lacafta, 965 S.W.2d at 569; Harris County Dist. Attorney‘s Office v. M.G.G., 866 S.W.2d 796, 798 (Tex.App.-Houston [14th Dist.] 1993, no writ). Conversely, if the petitioner demonstrates that he has satisfied each of the requirements underarticle 55.01(a) , the trial court has a mandatory duty to grant the expunction petition. Heine, 92 S.W.3d at 648.
In his petition for expunction, filed on May 6, 2008, Nail pled that he was arrested on March 28, 2005, for the offense of making alcohol available to a minor, a class A misdemeanor. See
Art. 55.01. RIGHT TO EXPUNCTION. (a) A person who has been placed under a 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:
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(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the person for an offense arising out of the transaction for which the person was arrested or, if an indictment or information charging the person with commission of a felony was presented, the indictment or in-
formation 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.
The sole party to file a responsive pleading was DPS, which filed a general denial as well as an “affirmative defense” disputing whether Nail could satisfy paragraph B‘s requirement that he had not received “court ordered community supervision under Article 42.12.” DPS attached copies of documents from Nail‘s criminal proceeding (cause no. 13161 in the constitutional county court of Llano County), including the sworn complaint, information, and “Judgment on Plea of Guilty or Nolo Contendere Before Court; Waiver of Jury Trial—Deferrеd Adjudication of Guilt.” The latter consists of a preprinted form with handwritten additions and deletions. It reflects that pursuant to a plea bargain, Nail pled nolo contendere to and was found guilty of
Thereupon, and upon the 28th day of March, 2005, the Court, having heard and considered all the evidence submitted for the State and the Defendant is of the opinion and so finds that the Defendant is eligible
for probation and that the ends of justice and the best interests of both the public and the Defendant will be served by the Court‘s deferring further proceedings without entering an adjudication of guilty at this time by the Court placing the Defendant on probation under the supervision of the Court.IT IS, THEREFORE CONSIDERED, ORDERED AND ADJUDGED by the Court that a final adjudication of guilt, assessment of punishment and pronouncement of sentence be deferred [sic] the good behavior of the defendant, and that the defendant
be and is hereby placed on probation for a term of ____________ beginning on the date of the judgment herein under the supervision of the Court, through the Adult Probation Department of Llano County, Texas, subject to the terms and conditions set out in the attached “Terms and Conditions of Probation” and any supplements thereto.
The defendant was informed that on violation of a condition of his probation judgment that he may be arrested and detained as provided by law; that he is entitled to a hearing limited to a determination by the Court of whether it proceeds with an adjudication of guilt on the original charge; that no appeal may be taken from this determination; that after adjudication of guilt, all proceedings, including assessment of punishment, pronouncement of sentence, granting of probation, and appeal continue as if the adjudication of guilt had not been deferred.
IT IS ORDERED that the Clerk of the Court or the Probation Officer furnish a copy of this judgment, together with a copy of the attached “Terms and Conditions of Probation” and any Supplements thereto to the Defendant and not the date of delivery of such copy on the docket, and that upon receipt of a copy of this judgment by the Defendant, the Defendant is released upon probation as authorized by law.4
At the expunction hearing,5 Nail‘s counsel represented to the district court that his client and the prosecutor had entered into a plea bargain whereby “Nail would receive a deferred adjudication in this case and the contemplation at the time of the plea bargain was that this would be done in a manner that would enable Josh Nail to proceed to an expunction.” He added that Nail had been required to pay a fine and that “[t]he case was dismissed after the
The district court granted Nail‘s petition, finding specifically that the charges against Nail “were dismissed, and did not result in a conviction, that the charges are no longer pending, that there was no court-ordered supervision of [Nail] under Art. 42.12, that [Nail] has been released from custody and bond on this charge, and that [Nail] has not been convicted of a felony within 5 years of the date of his arrest.” See
We review a trial court‘s order granting or denying expunction for “abuse of discretion.” See Heine, 92 S.W.3d at 646. In general, “abuse of discretion” means the trial court acted “without reference to any guiding rules or principles.” E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995). However, to the extent an expunction ruling turns on a question of law, we review it de novo because 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), and, therefore, “abuses its discretion” if it misinterprets or misapplies the law. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex.2008); Walker, 827 S.W.2d at 840.
When reviewing a challenge to the legal sufficiency of the evidence, we review the evidence in the light most favorable to the judgment, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex.2005). We will sustain a legal sufficiency complaint if the record reveals: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively estab-
Under paragraph B of
The “Article 42.12” referenced in paragraph B of
the placement of a defendant by a court7 under a continuum of programs
and sanctions, with conditions imposed by the court for a specified period during which:
(A) criminal proceedings are deferred without an adjudication of guilt; or
(B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.
As this definition reflects, the legislature has authorized trial courts governed by article 42.12 to impose “community supervision” in two basic situations. First, community supervision may be imposed by a trial court following conviction as an alternative to a sentence of imprisonment or confinement—what is frequently termed “regular” probation or “regular” community supervision. See
The “conditions” for “community supervision,” see
In the case of deferred adjudication, the “continuum of programs and sanctions,” see
Texas courts—including this Court—have uniformly held that court orders that impose deferred adjudication impose “court ordered community supervision under Article 42.12” within the meaning of
On appeal, DPS, relying on cases such as Wallace, argues that Nail received “court ordered community supervision under Article 42.12” as a matter of law because the prosecutor testified at the hearing—and Nail‘s counsel admitted—that Nail received thirty days’ “deferred adjudication” in connection with his arrest for furnishing alcohol to a minor. Also, relying on Moran, DPS emphasizes that the county court‘s order also imposed an $800 fine and court costs and made dismissal versus final adjudication of guilt contingent on Nail‘s “good behavior“—i.e., a “condition” under article 42.12. See Moran,
In R.B., neither deferred-adjudication order imposed an express condition of probation but, to the contrary, explicitly provided that “there shall be no Court ordered supervision or probation of Defendant under Article 42.13 of the Code of Criminal Procedure.” 699 S.W.2d at 297-98. The State arguеd that the orders nonetheless contained an implied condition of probation: because the orders reserved the right to proceed to an adjudication of guilt or alternatively to dismiss the proceeding if the trial court determined that dismissal would be in the best interest of society and of the defendant, the orders “necessarily implie[d] as a condition of dismissal rather than an adjudication of guilt that dismissal could not be in the best interest of society and of the defendant.” Id. at 298. The court of appeal rejected that argument. It reasoned that “[t]o hold, as the State would have us do, that a deferred adjudication always carries with it an implied condition of probation would mean that one who had received deferred adjudication would never be entitled to expunction because there would always be court-ordered supervision. Such an intеrpretation would rob of any meaning the provision that expunction is to be granted when there is no court-ordered supervision.” Id.
In 1985, article 42.13 of the code of criminal procedure was merged into article 42.12, see Act of May 21, 1985, 69th Leg., R.S., ch. 427, 1985 Tex. Gen. Laws 1531, and, in 1989, the expunction statute‘s reference to “court ordered supervision under Article 42.13” was changed to “court ordered probation under Article 42.12.” See Act of May 29, 1989, 71st Leg., R.S., ch. 803, § 1, 1989 Tex. Gen. Laws 3666, 3667. Thus, as of the 1989 amendments, the expunction statute used the same term—“court ordered probation under Article 42.12“—that the legislature used to describe that which was imposed under article 42.12—“probation“—rather than the narrower “court ordered supervision” that was the linchpin of the R.B. court‘s analysis. The legislature has generally maintained this relationship between the two provisions. After the legislature extensively revised articlе 42.12, including renaming “probation” as “community supervision,” see Act of June 19, 1993, 73d Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3716, it made a conforming amendment to change the expunction statute‘s reference to “court ordered probation under Article 42.12” to its current “court ordered community supervision under Article 42.12.” See Act of May 30, 1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen. Laws 4279. In light of these intervening amendments, several decisions involving expunction and deferred adjudication have concluded that R.B. is no longer authoritative. See Texas Dep‘t of Pub. Safety v. Moran, 949 S.W.2d 523, 527 (Tex.App.-San Antonio 1997, no pet.); State v. Knight, 813 S.W.2d 210, 212 (Tex.App.-Houston [14th Dist.] 1991, no writ). We need not address the continued applicability of R.B. because even under its reasoning, as we explain above, Nail did not receive unconditional deferred adjudication.
At the expunction hearing, the prosecutor testified without dispute that the county court‘s judgment placed Nail on deferred adjudication and under threat of arrest if he failed to comply with “good behavior,” with the “condition” being that “he pay the fine and court cost.” As the prosecutor suggested, “[p]ay[ing] the defendant‘s fine, if one is assessed, and all court costs” is one of the “basic conditions” of “community supervision” under article 42.12.
The prosecutor did indicate that Nail “paid his fine and court cost, I believe, the day that we entered into the judgmеnt.” However, there is no evidence to support a reasonable inference that Nail‘s obligation to pay the fine was independent of his deferred adjudication. See 43B Dix & Dawson, § 48.30, at 277 (cautioning that R.B. “exception,” if it applies under the current expunction statute, could apply only if “[a]ny actions required of the defendant—such as ... payment of a fine and costs of court ... must be completed before the trial court places him on unsupervised and unconditional deferred adjudication“). In fact, the prosecutor‘s undisputed testimony established the contrary—that Nail was required to pay the fine as a condition of his deferred adjudication—and there was no contrary evidence before the district court.9
In arguing to the district court that he did not receive “court ordered community supervision under Article 42.12,”10 Nail relied on the assertions that the county court‘s order did not require him to “report” to a probation officer and that he was, therefore, not “supervised.” As previously demonstrated, although section 11 of article 42.12 authorizes a court to impose conditions requiring active or literal supervision by the State, “court ordered community supervision under Article 42.12” is not limited to and does not require such conditions. To the contrary, the condition imposed during Nail‘s deferred adjudication term—that Nail pay a fine and court costs—suffices to establish
During the expunction hearing, the district court voiced concern that Nail‘s plea might be invalid if Nаil had acted under the impression that he would later be able to obtain expunction in connection with the offense. Nail‘s counsel also emphasized such facts as Nail‘s background as “a fire fighter and an EMT” with no criminal history and that his charge stemmed from “a loud music call” concerning “a party at his house” at which alcohol was being served while minors were present. The issue before us in this proceeding, however, is whether the district court abused its discretion in granting Nail‘s expunction petition in light of the governing statutory requirements he had the burden to satisfy and the evidentiary record. These statutory requirements, and the policy judgments they embody, are the prerogative of the legislature. The judiciary has no power to deviate from them to either expand or limit the expunction remedy based on its perception of the equities or for any other reason. See T.C.R., 305 S.W.3d at 663-64.
Thе dissent offers no valid criticism of the foregoing analysis. It repeatedly emphasizes that an “abuse-of-discretion” appellate standard of review applies here as if this standard singularly requires deference to whatever the trial court decided. To the contrary, to state that an appellate issue is governed by an “abuse-of-discretion” standard of review is merely to beg the question of how broad or narrow the trial court‘s discretion regarding the issue was. Here, as previously explained, the legislature has defined and limited by statute the trial court‘s discretion to grant expunction, and it is beyond dispute that statutory construction presents a question of law that we review de novo, see Shumake, 199 S.W.3d at 284, and that trial judges have zero discretion to misinterpret or misapply the law. Perry Homes, 258 S.W.3d at 598; Walker, 827 S.W.2d at 840. The “undisputed facts” quoted by the dissent demonstrate, as a matter of law, that the county court imposed a “condition” (and, therefore, “community supervision“) through Nail‘s “deferred judgment“/deferred adjudication under the meaning of the expunction statute and the code of criminal procedure—payment of a fine and court costs—or at least that there is legally insufficient evidence to support the contrary finding Nail was required to obtain. See Moran, 949 S.W.2d at 527. The dissent‘s portrayal of the record as indicating otherwise appears rooted in the premise—stated more explicitly in its memorandum opinion on original submission—that “community supervision” requires active, literal supervision by the State. That is not the law, as previously explained. See id. Nor does the fact that the parties to the criminal proceeding may have intended or “hoped” that the “deferred judgment” would avoid the prohibition against expunction where “community supervision” has been imposed—sоmething the dissent also emphasizes—control whether it did. The legislature has provided no such exception to the “community supervision” ex-
We reverse the district court‘s judgment and render judgment that Nail take nothing on his expunction claim. Furthermore, pursuant to DPS‘s prayer for relief, we order all documents that were turned over to the district court, or to Nail or his counsel, be returned to the submitting agencies. See Ex parte Elliot, 815 S.W.2d 251, 251, 252 (Tex.1991) (per curiam) (reversal of expunction applies to all respondents in trial court, even if they did not participate in appeal).
Dissenting Opinion by Justice PATTERSON.
JAN P. PATTERSON, Justice, dissenting.
After unanimously affirming the trial court‘s order, the majority on rehearing reverses course, applies the wrong standard of review, and substitutes its own judgment for that of the trial court despite the undisputed facts in the record and the trial court‘s express findings regаrding those facts. For these reasons, I dissent.
The majority acknowledges that an appellate court reviews a trial court‘s grant of a petition for expunction under an abuse of discretion standard. See slip op., supra, at 678. The majority, however, converts this standard into one of de novo review based on its post-hoc determination on rehearing that the grant of expunction in this case turns not on the undisputed facts as expressly found by the trial court, but on a question of law. See id. at 678-79. In a case involving undisputed facts as expressly found by the trial court, the majority‘s attempted conversion from abuse of discretion to de novo review is misguided.
The trial court expressly found “that there was no court-ordered supervision of [Nail] under Art. 42.12 [of the code of criminal procedure].” The judgment in the underlying case and the prosecutor‘s testimony in this case support the trial court‘s express finding. There is no reference to court-ordered community supervision in the underlying judgment. Indeed, any reference to court-ordered supervision, community supervision, probation, or terms and conditions of probation on the printed form has been marked out. The prosecutor testified on direct examination at the hearing on appellee‘s petition for expunction as follows:
A. ... I think I sent you a plea bargain letter and it was always that [Nail] was not supposed to report [to a probation officer] and it was just—it was sort of like a Class C misdemeanor, you pay a fine and court costs and that‘s it.
Q. Right. And as attorney for the [S]tate, you and I made that agreement?
A. Right.
Q. And the agreement was with the understanding that doing it in this way, the way we did it, [Nail] would be eligible for expunction and you would not oppose it?
A. We hoped so.
Q. Well, we hoped so.
A. Yeah, but I said I would not—you know, he was a good boy. As long аs he, you know, didn‘t have any criminal history between now and the time of expunction that I would not have any problem with it.
The prosecutor‘s testimony makes clear the parties’ intent that appellee would be eligible for expunction. Based on this testimony and the underlying judgment, I would conclude that the trial court did not abuse its discretion in finding that there was no court-ordered community supervision under article 42.12 or in granting the petition for expunction. See Heine v. Texas Dep‘t of Pub. Safety, 92 S.W.3d 642, 646 (Tex.App.-Austin 2002, pet. denied) (re-
The majority‘s opinion on rehearing usurps the role of the trial court as factfinder and erroneously substitutes this Court‘s judgment for that of the factfinder under the misguided application of a de novo standard of review. See slip op. at 678-79. Rather than accept the undisputed facts as found by the trial court, the majority considers the requirement in the underlying judgment that Nail pay an $800 fine to be a “condition” of community supervision and, therefore, determines that Nail was placed on community supervision within the meaning of article 42.12. Based on this reasoning, the majority concludes that Nail is ineligible for expunction. The majority‘s analysis is inconsistent with the plain language of article 42.12.
Article 42.12 defines the term “community supervision” as:
the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which:
(A) criminal proceedings are deferred without an adjudication of guilt; or
(B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is suspended in whole or in part.
The majority‘s reliance on Texas Department of Public Safety v. Moran, 949 S.W.2d 523 (Tex.App.-San Antonio 1997, no writ), and State v. Knight, 813 S.W.2d 210 (Tex.App.-Houston [14th Dist.] 1991, no writ) is misplaced. Both Moran and Knight were decided prior to the 1999 amendments to article 55.01, in which the legislature changed the language in article 55.01(a)(2)(B) from “court ordered probation” to “court ordered community supervision.” See Act of May 30, 1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen. Laws 4279, 4279. Thus, neither Moran nor Knight address the amended version of the statute in connection with article 42.12. More importantly, unlike here, neither case involved an express finding by the trial court that the defendant did not receive court ordered community supervision. In Moran, the San Antоnio appellate court found “the record was silent” with respect to whether the defendant received court ordered probation and, therefore, Moran failed to carry his burden of proving that he did not receive court ordered probation as required under the expunction statute. See 949 S.W.2d at 526. And in Knight, the Houston court of appeals found that Knight was subject to several conditions of probation, including the voluntary and permanent surrender of his peace officer‘s license. See 813 S.W.2d at 211. The court therefore rejected Knight‘s argument that he was not placed on court ordered supervision since he was not required to report to the probation department, holding that the question was whether Knight received court ordered probation, not whether his probation involved court ordered supervision. See id. at 212.
In contrast to the records in Moran and Knight, the record before us demonstrates that Nail did not receive court ordered community supervision within the meaning of article 42.12. There is no order placing Nail under a continuum of programs and sanctions, with conditions imposed by the court. There is no order requiring Nail to perform mandatory community service as required in section 16 of article 42.12. Nor is there an express finding exempting Nail from community service. There is, however, an express finding by the trial court that, based on the record, Nail did not receive court ordered community supervision.
Because the proper standard of review in this case is abuse of discretion, not de novo, see Heine, 92 S.W.3d at 646, and the evidence in the record is clear—and the trial court expressly found—that appellee did not receive court-ordered community supervision under article 42.12, on this explicit record urged by the prosecutor and on findings by the trial court, I would affirm the trial court‘s order granting the petition for expunction. Because the majority does not, I respectfully dissent.