      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON MOTION FOR REHEARING


                                       NO. 03-08-00435-CV



                         Texas Department of Public Safety, Appellant

                                                  v.

                                   Joshua Jack Nail, Appellee


     FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
         NO. 15,973, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING



                                           OPINION


               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 Nail presented legally sufficient evidence

that he received “court ordered community supervision under Article 42.12” for purposes of
paragraph B of article 55.01(a)(2)(B), code of criminal procedure, so as to preclude expunction. See

Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B) (West 2006). Concluding that Nail did not meet his

burden, we reverse the district court’s expunction order and render judgment that Nail take nothing

on that claim.

                 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. See
       Tex. Code Crim. Proc. Ann. art. 55.01(a); Heine, 92 S.W.3d at 648. Although
       article 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 under article 55.01(a), the
       trial court has a mandatory duty to grant the expunction petition. Heine, 92 S.W.3d
       at 648.


T.C.R. v. Bell County Dist. Attorney’s Office, No. 03-08-00627-CV, ___ S.W.3d ___, 2009 Tex.

App. LEXIS 6136, at *2-4 (Tex. App.—Austin Aug. 6, 2009, no pet.).

                                                  2
               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 Tex. Alco. Bev. Code Ann. § 106.06 (West 2007). Nail sought expunction of records relating

to this arrest under the following provisions of code of criminal procedure article 55.01(a):


       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:

                                              * * *

           (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 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.




                                                     3
Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). Regarding paragraph A of article 55.01(a)(2), Nail

alleged that after his arrest, he was charged with the class A misdemeanor offense of furnishing

alcohol to a minor. See id. art. 55.01(a)(2)(A); State v. Beam, 226 S.W.3d 392, 394 (Tex. 2007)

(where petitioner is charged only with misdemeanor, paragraph A is satisfied because, by definition,

“indictment or information charging the person with commission of a felony has not been

presented”). Nail additionally pled that he “has not been convicted of a felony in the 5 years

preceding the date of his arrest,” as paragraph C requires. See Tex. Code Crim. Proc. Ann. art.

55.01(a)(2)(C). Concerning paragraph B, Nail alleged that “[t]he charges against Petitioner arising

out of the transaction for which Petitioner was arrested did not result in a final conviction and are

no longer pending.” See id. art. 55.01(a)(2)(B). As for the paragraph’s additional requirement

that “there was no court ordered community supervision under Article 42.12,”1 Nail pled that he

“completed a term of unsupervised deferred adjudication.”2

               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



       1
         Because Nail was charged with a class A misdemeanor, the exception to this requirement
for community supervision imposed for class C misdemeanors is not at issue. See Tex. Code Crim.
Proc. Ann. art. 55.01(a)(2)(B) (West 2006) (“[T]here was no court ordered community supervision
under Article 42.12 for any offense other than a Class C misdemeanor.”).
       2
           Nail attached an affidavit in which he averred that he had not been convicted of a felony
in the five years preceding March 28, 2008—the requirement of paragraph C—but he did not verify
any of the other factual allegations in his petition. See id. art. 55.02, § 2 (West Supp. 2008)
(expunction petition “must be verified”).

         In addition to his expunction claim, Nail pled in the alternative for an order of non-
disclosure under section 411.081 of the government code. See Tex. Gov’t Code Ann. § 411.081
(West Supp. 2008).

                                                 4
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—Deferred 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 the offense of

furnishing alcohol to a minor and received thirty days’ deferred adjudication (also termed “deferred

judgment” within the document), an $800 fine, and $206 in court costs. The following portions of

the order addressed adjudication of Nail’s guilt and punishment:3


               Thereupon, and upon the ___ day of _____________, _______, 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


       3
           Handwritten additions to the order are signified below by italics, while handwritten
deletions are signified by strikeouts.

                                                  5
       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 completion of a 30 day

deferred adjudication.” Nail then called the prosecutor to testify. She verified that counsel’s

statements were true and correct. The prosecutor elaborated that “the judgment” did not require

Nail “to report and it was—it was sort of like a Class C misdemeanor, you pay a fine and court costs

and that’s it.” The prosecutor added that she agreed not to oppose expunction if Nail had no criminal



       4
          In addition to challenging whether Nail could meet the requirements of paragraph B, DPS
specially excepted to Nail’s failure to verify any factual allegations in his expunction petition other
than those pertaining to paragraph C, among other asserted defects.

          DPS also asserted a plea to the jurisdiction to Nail’s alternative request for relief under
government code section 411.081, urging that Nail was required to seek that relief in the court of
conviction, the constitutional county court of Llano County. In the alternative, DPS moved to
transfer the section 411.081 claim to the court of proper venue.
       5
           See Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c) (West Supp. 2008).

                                                  6
history (“he was a good boy,” as she put it) between the time of the agreement and expunction.

During cross-examination by the Department’s counsel, the prosecutor acknowledged that the

county court’s “judgment” referred to the disposition as both “deferred judgment” and “deferred

adjudication,” and that Nail had remained under threat of arrest if he did not comply with “the good

behavior under the court’s ruling.” She insisted, however, that “his only condition was that he pay

the fine and court costs.” No other evidence was introduced by either party.

               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 Tex. Code Crim. Proc. Ann. art. 55.01(a)(2). The Department

appealed. In two issues, the Department asserts only that the district court abused its discretion

in granting expunction because Nail failed to present legally sufficient evidence that “there was

no court ordered community supervision under Article 42.12,” as required by paragraph B of

article 55.01(a)(2).6 We agree that the district court abused its discretion in granting expunction.

               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




       6
          We thus express no opinion as to whether Nail met his burden as to any other element
under article 55.01(a)(2), see, e.g., Texas Dep’t of Pub. Safety v. Borhani, No. 03-08-00142-CV,
2008 Tex. App. LEXIS 7509, at *9-10 (Tex. App.—Austin Oct. 3, 2008, no pet.) (mem. op.)
(emphasizing that once DPS filed general denial to petitioner’s expunction petition, expunction
petitioner “must present evidence to substantiate his pleadings in order to prevail”), or any other
potential basis for holding that the district court abused its discretion in granting expunction.

                                                  7
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

establishes the opposite of the vital fact. See id. at 810.

               Under paragraph B of article 55.01(a)(2), Nail had the burden of adducing legally

sufficient evidence that the county court’s order imposed “no court ordered community supervision

under Article 42.12.” See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B). To determine whether

Nail met this burden, therefore, we must first determine what “court ordered community supervision

under Article 42.12” as used in paragraph B means. Statutory construction presents a question of

law that we review de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). Our primary

objective in statutory construction is to give effect to the legislature’s intent. See id. We seek


                                                   8
that intent “first and foremost” in the statutory text. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d

83, 85 (Tex. 2006). “When text is clear, text is determinative of that intent.” Entergy Gulf States,

Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009) (op. on reh’g) (citing Shumake, 199 S.W.3d

at 284; Alex Sheshunoff Mgmt. Servs. v. Johnson, 209 S.W.3d 644, 651-52 (Tex. 2006)). We

consider the words in context, not in isolation. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002).

We rely on the plain meaning of the text, unless a different meaning is supplied by legislative

definition or is apparent from context, or unless such a construction leads to absurd results. City of

Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008) (citing Texas Dep’t of Transp. v. City of

Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004); Taylor v. Firemen’s & Policemen’s Civil Serv.

Comm’n, 616 S.W.2d 187, 189 (Tex. 1981); University of Tex. Sw. Med. Ctr. v. Loutzenhiser,

140 S.W.3d 351, 356 (Tex. 2004)); see Entergy Gulf States, Inc., 282 S.W.3d at 437 (“This general

rule [that text is determinative of legislative intent] applies unless enforcing the plain language of

the statute as written would produce absurd results”; also recognizing that legislative definitions

of terms control over their ordinary meaning); Tex. Gov’t Code Ann. § 311.011 (West 2005)

(“[w]ords and phrases shall be read in context and construed according to the rules of grammar and

common usage”). We should also read every word, phrase, and expression in a statute as if it were

deliberately chosen, and likewise presume that words excluded from the statute are done so

purposefully. See Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873

(Tex. App.—Austin 2002, pet. denied). Our analysis of the statutory text is also informed by the

presumptions that “the entire statute is intended to be effective” and that “a just and reasonable

result is intended,” Tex. Gov’t Code Ann. § 311.021(2) & (3) (West 2005), and consideration



                                                  9
of such matters as “the object sought to be attained,” “circumstances under which the statute

was enacted,” legislative history, and “consequences of a particular construction.” Id. § 311.023(1),

(2), (3), (5) (West 2005). However, only when the statutory text is ambiguous “do we ‘resort to

rules of construction or extrinsic aids.’” Entergy Gulf States, Inc., 282 S.W.3d at 437 (quoting In re

Estate of Nash, 220 S.W.3d 914, 917 (Tex. 2007)).

               The “Article 42.12 ” referenced in paragraph B of article 55.01(a)(2) is article 42.12

of the code of criminal procedure, the article that governs “community supervision,” the current

statutory term for what is still commonly known as “probation.” See generally Tex. Code Crim.

Proc. Ann. art. 42.12 (West Supp. 2008). Article 42.12 defines “community supervision” as:



       the placement of a defendant by a court[7 ] 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.


Id. art. 42.12, § 2(2). Thus, “community supervision” as defined in article 42.12 entails (1) judicial

“placement of a defendant . . . under a continuum of programs and sanctions, with conditions




       7
          “Court” under article 42.12 is limited to “a court of record having original
criminal jurisdiction.” Tex. Code Crim. Proc. Ann. art. 42.12, § 2(1) (West Supp. 2008).

                                                 10
imposed by the court”; (2) “for a specified period during which” either “criminal proceedings are

deferred without an adjudication of guilt” or a sentence is “probated” and its imposition suspended.

               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 id. art. 42.12, §§ 2(2)(B), 3 (“judge ordered community supervision”);

see also id. art. 42.12, § 4 (“jury recommended community supervision”). The second is “deferred

adjudication,” also termed “deferred adjudication probation” or “deferred adjudication community

supervision,” under section 5 of article 42.12: “when in the judge’s opinion the best interest of

society and the defendant will be served, the judge may, after receiving a plea of guilty or plea of

nolo contendere, hearing the evidence, and finding that it substantiates the defendant’s guilt,

defer further proceedings without entering an adjudication of guilt, and place the defendant on

community supervision.” See id. art. 42.12, § 5(a).

               The “conditions” for “community supervision,” see id. art. 42.12 § 2(2), are addressed

primarily in section 11 of article 42.12. Section 11 requires that “[t]he judge of the court having

jurisdiction of the case shall determine the conditions of community supervision.” Id. art. 42.12,

§ 11(a). As for what these “conditions” may be, section 11 further provides that “[t]he judge may

impose any reasonable condition that is designed to protect or restore the community, protect or

restore the victim, or punish, rehabilitate, or reform the defendant.” Id. Such conditions specifically

“may include, but shall not be limited to,” conditions that the defendant shall “commit no offense


                                                  11
against the laws of this State or of any other State or of the United States,” “[p]ay[ing] the

defendant’s fine, if one be assessed, and all court costs,” id. art. 42.12, § 11(a)(1), (8), and numerous

others. Although these specified conditions of “community supervision” also include some that

entail active, literal supervision by the State, see id. art. 42.12, § 11(a)(4) (“Report to the supervision

officer as directed by the judge or supervision officer and obey all rules and regulations of the

community supervision and corrections department”), (5) (“Permit the supervision officer to visit

the defendant at the defendant’s home or elsewhere”), “community supervision” plainly does not

require the imposition of those sorts of conditions.

                In the case of deferred adjudication, the “continuum of programs and sanctions,” see

id. art. 42.12, § 2(2), in the event of the defendant’s failure to comply with the court-ordered

conditions can include arrest and the court’s proceeding to adjudicate guilt. See id. art. 42.12 § 5(b)

(“[o]n violation of a condition of community supervision imposed under Subsection (a) of this

section,” defendant may be arrested and detained and hearing held on issue of whether court will

proceed to adjudicate guilt on original charge). Conversely, if the defendant successfully completes

the term of deferred adjudication, the charges are dismissed without a final conviction. See id.

art. 42.12, § 5(c).

                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 article 55.01(a)(2), at least when the order imposes one or more of the

“conditions” under article 42.12, section 11. See, e.g., Texas Dep’t of Pub. Safety v. Jacobs,

250 S.W.3d 209, 211 (Tex. App.—Dallas 2008, no pet.) (trial court committed error apparent on


                                                    12
face of record in granting expunction where defendant “admitted at the expunction hearing that he

served deferred adjudication probation”); Texas Dep’t of Pub. Safety v. Wallace, 63 S.W.3d 805, 808

(Tex. App.—Austin 2001, no pet.) (after noting that trial court had imposed “terms and conditions

of [Wallace’s] community supervision,” holding that “deferred-adjudication constitutes ‘court

ordered community supervision’ under article 42.12 for purposes of the expunction statute and

renders a defendant ineligible for expunction of arrest records”); see also Texas Dep’t of Pub. Safety

v. Moran, 949 S.W.2d 523, 527 (Tex. App.—San Antonio 1997, no pet.) (Green, J.) (under prior

version of expunction statute that required “no court ordered probation,” holding that “deferred

adjudication is court ordered probation regardless of [defendant’s] testimony that he was not under

any court-imposed conditions other than paying a fine and court costs”); State v. Knight, 813 S.W.2d

210, 212 (Tex. App.—Houston [14th Dist.] 1991, no writ) (under prior version of statute, “Deferred

adjudication probation under Article 42.12, § 5, Texas Code of Criminal Procedure constitutes a

‘court ordered probation’ for purposes of article 55.01(2)”); 43B George E. Dix & Robert O.

Dawson, Texas Practice: Criminal Practice and Procedure §§ 48.29-.30, at 277 (2d ed. 2001)

(acknowledging general “rule that one is not entitled to expunction upon successful completion of

a term of deferred adjudication”); but cf. id. §§ 48.30, .32, .33 (relying on State v. R.B., 699 S.W.2d

296 (Tex. App.—Dallas 1985, no writ), in suggesting that “narrow” exception to this rule may exist

if trial court imposes “unsupervised and unconditional” deferred adjudication).8


       8
           In State v. R.B., 699 S.W.2d 296 (Tex. App.—Dallas 1985, no writ), the defendant pled
nolo contendere to two misdemeanor DWI offenses, received deferred adjudication, and later sought
to expunge records relating to the charges. At the time, the predecessor to paragraph B required
that there be no “court ordered supervision under Article 42.13, Code of Criminal Procedure.” See
Act of May 27, 1979, 66th Leg., R.S., ch. 604, 1979 Tex. Gen. Laws 1333 (amended 1989) (current

                                                  13
version at Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B)). This “Article 42.13” was a provision
of the code of criminal procedure that addressed misdemeanor “probation,” including both regular
“probation” and deferred adjudication “probation.” See Act of May 28, 1979, 66th Leg., R.S.,
ch. 654, 1979 Tex. Gen. Laws 1514, repealed by Act of May 21, 1985, 69th Leg., R.S., ch. 427,
1985 Tex. Gen. Laws 1531. Thus, article 42.13 was addressed to “probation,” not the current
nomenclature of “community supervision,” and the expunction statute required no “court ordered
supervision under Article 42.13.” Decisions construing these versions of the statutes held that
“court ordered supervision under Article 42.13,” while not requiring the appointment of a probation
officer or the imposition of conditions requiring or entailing active or literal supervision of
the defendant, did require that the court “supervise” the defendant at least in the sense that it impose
one or more conditions for which the defendant remained accountable to the court during his
or her probation period. See, e.g., Ex parte P.D.H., 823 S.W.2d 791, 792-93 (Tex. App.—Houston
[14th Dist.] 1992, no writ); Texas Dep’t of Pub. Safety v. P.E., 794 S.W.2d 604, 607
(Tex. App.—Austin 1990, no writ); Meyers v. State, 675 S.W.2d 798, 799 (Tex. App.—Dallas 1984,
no writ); Texas Dep’t of Pub. Safety v. Failla, 619 S.W.2d 215, 217 (Tex. Civ. App.—Texarkana
1981, no writ).

         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 argued 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 interpretation 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

                                                  14
               In addition to relying on the statutory text, these decisions have cited the traditional

policy goal underlying the expunction remedy—to provide relief from the consequences of wrongful

arrests. See Moran, 949 S.W.2d at 527 (“The expunction statute was ‘not intended to allow a person

who is arrested, pleads guilty to an offense, and receives probation after pleading guilty to expunge

his record.” (quoting Knight, 813 S.W.2d at 212)). Although the legislature over time has changed

other portions of article 55.01(a)(2) from this traditional “mistake” expunction model or policy

toward more of a “rehabilitation” model, it has not done so with paragraph B, as we have recently

observed. See T.C.R., 2009 Tex. App. LEXIS 6136, at *29-30.

               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




maintained this relationship between the two provisions. After the legislature extensively
revised article 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 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.

                                                 15
“condition” under article 42.12. See Moran, 949 S.W.2d at 527 (“deferred adjudication is court

ordered probation regardless of [defendant’s] testimony that he was not under any court-imposed

conditions other than paying a fine and court costs”). We agree with DPS that, on this record, Nail

failed to adduce legally sufficient evidence that he had “no court ordered community supervision

under Article 42.12” within the meaning of paragraph B.

                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. Tex. Code Crim.

Proc. Ann. art. 42.12, § 11(a)(8 ). Furthermore, as the prosecutor acknowledged, the judgment

imposed made Nail’s completion of deferred adjudication contingent on his satisfaction of that

condition. This is “community supervision” under article 42.12. See Tex. Code Crim. Proc. Ann.

art. 42.12, §§ 2(2), 5(b).

                The prosecutor did indicate that Nail “paid his fine and court cost, I believe, the day

that we entered into the judgment.” 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


                                                  16
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 “court ordered community supervision under Article 42.12.” See Moran, 949 S.W.2d

at 527.11 Consequently, there is legally insufficient evidence to support the district court’s finding


       9
          See, e.g., Borhani, 2008 Tex. App. LEXIS 7509, at *9-10 (emphasizing that once DPS filed
general denial to petitioner’s expunction petition, expunction petitioner “must present evidence to
substantiate his pleadings in order to prevail” and cannot rely on his or her verified petition).
Although attached to DPS’s responsive pleading, the county court’s “Judgment on Plea of Guilty or
Nolo Contendere Before Court; Waiver of Jury Trial—Deferred Adjudication of Guilt” was not
admitted into evidence at the expunction hearing. However, were we to assume that the district court
took judicial notice of it, it is consistent with the prosecutor’s testimony that Nail was required to
pay the fine and court costs as a condition of successfully completing his deferred adjudication. The
order explicitly requires Nail to make the payments and further provides that he was admonished that
“on violation of a condition of his probation judgment that he may be arrested and detained as
provided by law . . . .”
       10
         Nail did not file an appellee’s brief on original submission, nor has he filed a response to
the Department’s motion for rehearing.
       11
          See also P.E., 794 S.W.2d at 607 (“In order to constitute court ordered supervision” under
the narrower version of the expunction statute applied in R.B., “a defendant need only be ordered
to comply with conditions; it is not necessary to require that he report to a probation officer.”
(quoting Meyers, 675 S.W.2d at 799)).

                                                 17
of “no court ordered community supervision under Article 42.12.” And, because Nail did not meet

his burden as to each of the statutory requirements of article 55.01(a)(2), the district court abused its

discretion in granting Nail’s expunction petition.

                During the expunction hearing, the district court voiced concern that Nail’s plea might

be invalid if Nail 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., 2009 Tex. App. LEXIS 6136, at *3.

                The 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


                                                   18
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—something the dissent also emphasizes—control whether it did.

The legislature has provided no such exception to the “community supervision” expunction

limitation, and the judiciary has no power to create one.

                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, 252 (Tex. 1991) (per curiam) (reversal of expunction

applies to all respondents in trial court, even if they did not participate in appeal).




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                                            __________________________________________

                                            Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop;
  Dissenting Opinion by Justice Patterson


Reversed and Rendered on Motion for Rehearing


Filed: January 8, 2010




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