      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-12-00683-CV


                         Texas Department of Public Safety, Appellant

                                                 v.

                                         W. W., Appellee


     FROM THE DISTRICT COURT OF BURNET COUNTY, 33RD JUDICIAL DISTRICT
         NO. 40468, HONORABLE GUILFORD L. JONES III, JUDGE PRESIDING



                            MEMORANDUM OPINION


               W.W. was arrested and charged with the offense of criminal trespass, a class B

misdemeanor. On April 1, 1999, W.W. pleaded guilty to the charge, and the trial court deferred

adjudicating his guilt and placed W.W. on community supervision for a period of six months. The

criminal trespass charge against W.W. was later dismissed.

               On July 18, 2012, W.W. filed a petition for expunction in the district court. See Tex.

Code Crim. Proc. art. 55.02 (procedure for expunction). In his petition, W.W. asserted that he was

seeking expunction pursuant to article 55.01 of the Texas Code of Criminal Procedure. W.W. also

alleged the following:

       [A]n indictment or information was presented, but the same was subsequently
       dismissed or quashed on March 6, 2000, due to the completion of a pretrial
       intervention program authorized under the Texas Government Code. Petitioner
       further states that he has been released, that the charged has not resulted in a final
       conviction and is no longer pending, and that there was no court-ordered community
       supervision under Article 42.12 of the Texas Code of Criminal Procedure.
                After a hearing on W.W.’s petition, and over the opposition of the Texas Department

of Public Safety, the trial court granted the expunction. The Department then filed this appeal,

challenging the trial court’s order. In two issues, the Department asserts that (1) W.W. was charged

with demonstrating to the trial court that “there was no court-ordered community supervision

under Article 42.12 for the offense” and (2) W.W. failed to present legally sufficient evidence

demonstrating that this statutory requirement was met. We will reverse the trial court’s order and

render judgment denying the petition for expunction.


                                    STANDARD OF REVIEW

                We review a trial court’s ruling on a petition for expunction under an abuse of

discretion standard. Heine v. Texas Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin

2002, pet. denied). A trial court abuses its discretion when its decision is (1) arbitrary, unreasonable,

or without regard to guiding principles; or (2) without supporting evidence. Bocquet v. Herring,

972 S.W.2d 19, 21 (Tex. 1998). With regard to factual matters, we may not substitute our judgment

for that of the trial court unless it is clear from the record that the trial court could reach only one

decision. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). However, a trial court has no

discretion in determining what the law is; therefore, a failure by the trial court to correctly analyze

or apply the law will also constitute an abuse of discretion. Id.

                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 a reasonable

fact finder could and disregarding contrary evidence unless a reasonable fact finder could not.

City of Keller, 168 S.W.3d 802, 807 (Tex. 2005). We will sustain a legal sufficiency complaint if

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the record reveals: (1) a 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 as a matter of law. See id. at 810.

               The Department’s issues on appeal implicate construction of article 55.01 of the

code of criminal procedure. Statutory construction is a question of law that appellate courts review

de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). When construing a statute,

our primary objective is to ascertain and give effect to the legislature’s intent. First Am. Title Ins.

Co. v. Combs, 258 S.W.3d 627, 631 (Tex. 2008). We look first and foremost to the text of the

statute, and when possible, apply its words according to their common meaning. Id.


                                            ANALYSIS

               The remedy of expunction allows a person who has been arrested for the commission

of an offense to have all information about the arrest removed from the State’s records. See Texas

Dep’t of Public Safety v. Nail, 305 S.W.3d 673, 674 (Tex. App.—Austin 2010, no pet.). Article

55.01 of the Texas Code of Criminal Procedure governs a petitioner’s right to an expunction, which

is purely a matter of statutory privilege. Id.; see Tex. Code Crim. Proc. art. 55.01. Article 55.01

provides in relevant part:


       (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)     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 the offense, unless the offense
               is a class C misdemeanor, provided that:

               (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 . . .

                         (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 . . . 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
                                    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.

Id. (emphasis added).1

               Because it informs our examination of the evidence, we first consider whether

subparagraph (a)(2) of article 55.01 requires a petitioner arrested for a class B misdemeanor, such


       1
           Article 55.01 of the Texas Code of Criminal Procedure was most recently amended in
2011. See Act of May 25, 2011, 82d Leg., R.S., ch. 894, § 1, 2011 Tex. Sess. Law Serv. 2274, 2274-
75. This amended version of article 55.01 applies “to an expunction of arrest records and files for
any criminal offense that occurred before, on or after the effective date [September 1, 2011] of this
Act.” Id. § 3. This current version of article 55.01 applies to this case, and W.W.’s assertion that
an earlier version of article 55.01 applies is incorrect.

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as W.W., to demonstrate that “there was no court-ordered community supervision” with regard to

the charge for which expunction is sought.

               In response to the Department’s arguments on appeal, W.W. asserts that under article

55.01, he had to demonstrate only that the misdemeanor charge against him was dismissed and that

the statute of limitations for the offense has since expired. In other words, W.W. contends that he

had to prove only that the conditions of subparagraph (a)(2)(B) were satisfied. A plain reading of

the statute demonstrates that W.W.’s proposed construction is incorrect.

               The phrase “provided that” used in subparagraph (a)(2) is conditional language,

requiring any person who is otherwise entitled to expunction under subparagraph (a)(2) to additionally

prove that the terms of one of two alternative subparagraphs—(a)(2)(A) or (a)(2)(B)—have also

been satisfied, depending on whether the limitations period, if any, has expired. Consequently, based

on the unambiguous language of the statute, in order to rely on the expiration of the limitations

period as a basis for expunction, W.W. had the burden of establishing both that (1) the prosecution

for the offense is no longer possible because the statute of limitations period has expired and (2) the

general conditions of subparagraph (a)(2) of article 55.01 have been satisfied. See Heine, 92 S.W.3d

642 (because expunction is civil proceeding, petitioner has burden of establishing that statutory

requirements have been met). We next examine whether W.W. met this burden.

               Under subparagraph (a)(2) of article 55.01, expunction of records for a class B

misdemeanor arrest may only be obtained when (1) the person seeking expunction has been released,

2) the charge does not result in a final conviction and is no longer pending, and (3) “there was no

court-ordered community supervision under Article 42.12 for the offense.” See Tex. Code Crim.

                                                  5
Proc. art. 42.12(a)(2). In this case, there is no dispute that W.W. has been released. Nor is there any

dispute that W.W.’s charge for criminal trespass did not result in a final conviction and the charge

is no longer pending. Instead, the Department contends that W.W. failed to establish, as a matter

of law, that “there was no court-ordered community supervision under Article 42.12,” because

W.W. received deferred adjudication.

                This Court has recognized that trial court orders that impose deferred adjudication

are orders that impose “court-ordered community supervision under Article 42.12” within the

meaning of article 55.01, at least when the order imposes one or more of the conditions under article

42.12, section 11. Nail, 305 S.W.3d at 673. Article 42.12 requires that “[t]he judge of the court

having jurisdiction of the case shall determine the conditions of supervision.” See Tex. Code Crim.

Proc. art. 42.12, § 11. These conditions “may include, but shall not be limited to,” conditions that

the defendant “shall commit no offense against the law of this State or any other State or of the

United States,” “[p]ay the defendant’s fine, if one be assessed, and all other court costs,” “[r]eport

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,” and numerous others. See id.

                The trial court’s order related to W.W.’s arrest for criminal trespass was presented

at the expunction hearing. The order, titled “Deferred Judgment,” reflects that W.W. pleaded guilty

to criminal trespass. However, according to the order, the trial court did not enter a finding of W.W.’s

guilt. Instead, pursuant to a plea agreement with the State, the court placed W.W. “on community

supervision under the terms of the Texas Misdemeanor Probation law for a period of 6 months.”



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Among other conditions of his deferred judgment, W.W. was required to commit no offense against

the law, report monthly to a probation officer, and pay a fine of $400 and court costs. Thus,

according to the terms of the trial court’s order deferring guilt, W.W. was placed on “community

supervision under Article 42.12.” See id. art. 55.01(a)(2). At the hearing on W.W.’s petition for

expunction, W.W.’s counsel conceded that W.W. had received deferred adjudication for the charged

criminal-trespass offense. W.W. presented no testimony or other evidence related to the criminal

trespass charge.2

                 We agree with the Department that, on the record before us, W.W. failed to produce

legally sufficient evidence that “there was no court ordered community supervision under article

42.12” within the meaning of article 55.01. Because this evidence was necessary for W.W. to prove

that he was entitled to have all records and files related to his arrest for criminal trespass expunged,

the trial court abused its discretion in granting W.W.’s petition for expunction.


                                          CONCLUSION

                 We reverse the trial court’s judgment and render judgment that W.W.’s petition for

expunction is denied. Further, pursuant to the Department’s prayer for relief, we order that all

relevant documents that have been turned over to the district court, or to W.W. or his counsel, 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).



        2
            W.W.’s only testimony was that he has never been convicted of a felony.

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                                           __________________________________________

                                           Scott K. Field, Justice

Before Chief Justice Jones, Justices Goodwin and Field

Reversed and Rendered

Filed: December 19, 2013




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