                                  NO. 12-16-00072-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

                                                §      APPEAL FROM THE 217TH
EX PARTE:
                                                §      JUDICIAL DISTRICT COURT
JESSICA SEYMORE
                                                §      ANGELINA COUNTY, TEXAS

                                 MEMORANDUM OPINION
        The Texas Department of Public Safety appeals the trial court’s order granting an
expunction of Jessica Seymore’s arrest for possession of a controlled substance. DPS presents
two issues on appeal. We reverse and render.


                                         BACKGROUND
        Seymore was arrested on May 25, 2013, and charged with both driving while intoxicated
(DWI) and possession of a controlled substance. The State dismissed the possession charge, and
Seymore pleaded guilty to and was convicted of the DWI offense. The court sentenced Seymore
to one year of community supervision and a $745.00 fine.
        In November 2015, Seymore filed a petition with the district court to expunge any and all
of the records arising from the May 25, 2013 possession charge, along with another unrelated
arrest. She alleged that the possession charge was dismissed and did not result in a final
conviction. The court originally set the petition for hearing on December 3, 2015, but the
hearing did not take place until December 28, 2015. At that hearing, the court granted Seymore’s
petition.
        DPS, who did not attend the hearing, filed its original answer and general denial on
January 6, 2016. After learning that the expunction had been granted, DPS filed a motion for
new trial alleging that it did not receive notice of the hearing being reset and that the May 25,
2013 arrest could not be expunged because Seymore was convicted of DWI. The trial court did
not rule on the motion for new trial. This appeal followed.


                                           EXPUNCTION
       In its first issue, DPS contends that Seymore was not entitled to have her arrest record
expunged because the arrest resulted in a final conviction. In its second issue, DPS urges the
court erred by failing to provide DPS with notice of the expunction hearing.
Standard of Review
       We review a trial court’s order granting or denying a petition for expunction for abuse of
discretion. See 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 acts “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). If 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.” See
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it
misinterprets or misapplies the law. Id.
Governing Law
       Although the law that governs expunctions is part of the code of criminal procedure, an
expunction proceeding is civil in nature and is governed by the rules of civil procedure. See
Carson v. State, 65 S.W.3d 774, 784 (Tex. App.—Fort Worth 2001, no pet.). Expunction is not
a constitutional or common law right, but purely a statutory privilege. Tex. Dep’t of Pub. Safety
v. Nail, 305 S.W.3d 673, 675 (Tex. App.—Austin 2010, no pet.). The trial court must strictly
comply with statutory requirements, and has no equitable power to extend the clear meaning of
the statute. Harris Cnty. Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston
[14th Dist.] 1997, no pet.).
       Texas Code of Criminal Procedure article 55.01(a)(2) states, in relevant part, that 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
(1) the person has been released, (2) the charge, if any, has not resulted in a final conviction, (3)
the charge, if any, is no longer pending, and (4) there was no court-ordered community
supervision under Article 42.12 for the offense, unless the offense is a Class C misdemeanor.



                                                 2
See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (West Supp. 2016). The expunction statute is
“arrest-based” and expunction is not available for less than all offenses arising from one arrest.
S.J. v. State, 438 S.W.3d 838, 844 (Tex. App.—Fort Worth 2014, no pet.). In other words, a
person is not entitled to have any arrest records expunged under article 55.01(a)(2) when a
charge is dismissed, but that dismissal results in a final conviction of any charge arising from the
same arrest. See Tex. Dep’t of Public Safety v. G.B.E., 459 S.W.3d 622, 629 (Tex. App.—
Austin 2014, pet. denied); In re A.G., 417 S.W.3d 652, 655 (Tex. App.—El Paso 2013, no pet.)
(reversing trial court’s grant of expunction of DWI charge, concluding petitioner failed to show
charge had not resulted in final conviction under current version of article 55.01 because
petitioner pleaded guilty to reckless driving).
Analysis
       To be entitled to expunction under article 55.01(a)(2), Seymore had the burden of
showing all of the following requirements: (1) she had been released; (2) the charge, if any, has
not resulted in a final conviction; (3) the charge, if any, is no longer pending; and (4) there was
no court-ordered community supervision for the offense. See TEX. CODE CRIM. PROC. ANN. art.
55.01(a)(2); Ex parte Green, 373 S.W.3d 111, 113 (Tex. App.—San Antonio 2012, no pet.).
DPS contends that Seymore did not meet the second requirement for expunction of her May 25,
2013 arrest.    Specifically, DPS argues that because Seymore’s arrest resulted in a final
conviction for DWI, she is not entitled to an expunction under article 55.01(a)(2). We agree.
       The record shows that Seymore was arrested on May 25, 2013, and charged with DWI
and possession of a controlled substance.         Although the possession charge was dismissed,
Seymore pleaded guilty to DWI. She was convicted for that offense and sentenced to one year of
community supervision. It is undisputed that the possession charge arose from the same arrest
that resulted in the DWI charge. Moreover, the record shows that the DWI charge resulted in a
final conviction. Consequently, because both charges arise from the same arrest and the DWI
charge resulted in a final conviction, Seymore is not entitled to expunction of any records
relating to her May 25, 2013 arrest. See S.J., 438 S.W.3d at 844; G.B.E., 459 S.W.3d at 629; In
re A.G., 417 S.W.3d at 655. Accordingly, we sustain DPS’s first issue and need not address its
second issue. TEX. R. APP. P. 47.1.




                                                   3
                                                   DISPOSITION
         We reverse the trial court’s judgment granting expunction of Seymore’s May 25, 2013
arrest and render judgment in favor of DPS. Furthermore, pursuant to DPS’s prayer for relief,
we order all documents that were turned over to the trial court or to Seymore be returned to the
submitting agencies.        See Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (reversal of
expunction applies to all respondents in trial court, even if they did not participate in appeal).

                                                                   GREG NEELEY
                                                                      Justice

Opinion delivered March 31, 2017.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                          4
                                  COURT OF APPEALS

     TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                          JUDGMENT

                                          MARCH 31, 2017


                                        NO. 12-16-00072-CV


                               EX PARTE: JESSICA SEYMORE



                               Appeal from the 217th District Court
                    of Angelina County, Texas (Tr.Ct.No. CV-00710-15-11)

               THIS CAUSE came to be heard on the appellate record and the briefs filed herein,
and the same being considered, because it is the opinion of this court that there was error in the
judgment of the court below and that the same should be reversed and judgment rendered.
               It is therefore ORDERED, ADJUDGED and DECREED by this court that the
judgment of the trial court in favor of JESSICA SEYMORE be, and the same is, hereby
reversed and judgment rendered in favor of THE DEPARTMENT OF PUBLIC SAFETY,
and that all costs of this appeal are hereby adjudged against JESSICA SEYMORE, in
accordance with the opinion of this court; and that this decision be certified to the court below
for observance.
                   Greg Neeley, Justice.
                   Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
