                    THE   ATTORNEY          GENERAL
                             OF   TEXAS


                             June 1, 1988




    Honorable Jimmy F. Davis              opinion No. JR-912
    Castro County District Attorney
    Castro County Courthouse              Re: Expungement of criminal
    Dimmitt, Texas 79027-2689             convictions  under certain
                                          provisions  of the    Texas
                                          Code of.Criminal  Procedure
                                          (RQ-1325)

    Dear Mr. Davis:

         You ask:

               1. Under Article    45.54, Texas Code of
            Criminal Procedure, as amended by S.B. 1422,
-           is a Justice   of the Peace Court prohibited
            from expunging   its own records or must an
            affected individual file suit in a District
            Court under Article    55.01, Texas Code of
            Criminal Procedure?

               2. Under Article    45.54, Texas Code of
            Criminal Procedure, as amended by S.B. 1422,
            does a conviction result for purposes of the
            Texas Driver's License law under Article
            668733, Section 22, whenever the procedures of
            Article   45.54,   Texas Code    of   Criminal
            Procedure, are applied to a traffic offense
            in the Justice of the Peace Court?

               3. Should the Texas Department of Public
            Safety record a conviction in the applicable
            driver's license records of an individual who
            has been    placed   under the    terms   and
            obligations of Article 45.54, Texas Code of
            Criminal Procedure, as amended by S.B. 1422,
P           since a dismissal and/or expungement    could
            result within 180'days or thereafter?

         Article  45.54 of the       Code    of   Criminal     Procedure
    provides in pertinent part:




                                     p. 4550
Honorable Jimmy F. Davis - Page 2   (JM-912)




          1. Upon conviction of the defendant of a
       misdemeanor punishable  by fine only, other
       than a misdemeanor   disposed of by Section
       143A, Uniform    Act Regulating  Traffic
       Highways   (Article 6701d, V.T.C.S.),l   tit:
       justice may suspend the imposition    of the
       fine and defer final disposition of the case
       for a period not to exceed 180 days.

        [Section (2) sets forth conditions that the
        justice may require the defendant   to meet
        during the deferral period.]

           3. At the conclusion     of the deferral
        period,  if the defendant    presents    satis-
        factory evidence that he has complied with
        the requirements  imposed, the justice may
        dismiss the    complaint.    Otherwise,     the
        justice may reduce the fine assessed or may
        then impose the fine assessed.        If    the
        complaint is dismissed, a special expense not
        to exceed the amount of the fine assessed may
        be imposed.

           4. Records relating to a complaint    dis-
        missed as provided by this article may be
        expunged under Article 55.01 of this code.

     In your first question you inquire whether a justice of
the peace may expunge the court's own records under  section
(4) or, in the alternative, whether a defendant is required
to file suit in district court under article 55.01 of the
Code of Criminal Procedure.

     Chapter 55 of the Code of Criminal Procedure  addresses
the matter of expunction of criminal records. Article 55.01
lists circumstances under which an individual is entitled to
have  "all records and     files relating to the      arrest
expunged."  Article  55.02 sets forth the procedure      for
expunction.  The language in section l(a) of article   55.02



   1. Section 143A of article 6701d, V.T.C.S.,      provides
that when a person is charaed with a misdemeanor under this    -\
act, the court may defer proceedings to allow the person  90
days to present evidence that he has successfully  completed
a defensive driving course. Upon compliance the court shall
dismiss the charge.




                              p. 4551
      Honorable Jimmy F. Davis - Page 3    (JM-912)




      appears to prompt your    question   relative to the court's
      possessing jurisdiction   to hear    an expunction  petition.
-/-   Section l(a) states:

                 A person who is entitled to expunction   of
              records and files under this chapter mav file
              an x D rt      oetition for exnunction   in a
              dis&ictacotrt   for the countv in which he was
              srested(.   (Emphasis added.)

           In State v. Autumn Hills Centers. Inc., 705 S.W.2d  181
      (Tex. App. - Houston [14th Dist.] 1985, no writ), the venue
      and jurisdiction of's court to hear expungment cases was an
      issue raised on appeal of  that cause. In Autumn Hills the
      court stated:

                 In their second point of error, appellants
              argue that the expunction of the criminal
              records was invalid because the Harris County
              court did not have jurisdiction to hear the
              case. Article 55.01 of the Code of Criminal
              Procedure ar nt    the riaht to exounae all
              records re1ati.n: to an arrest under certain
              conditions.   Article   55.02 delineates  the
              procedure to be followed bv those who meet
              the recuirements   of 55.01.  It provides  in
              part:

                 Sec. l(a) A person who is entitled      to
                 expunction of records and files under this
                 chapter may file an ex parte petition  for
                 expunction in a district court for the
                 countv    n    hich   he   was   arrested.
                 (Emphasis'addei.)

              Here the appellees were arrested in Galveston
              County, but the expunction petition was filed
              and granted  in Harris County.    Because of
              this discrepancy, the expunction is invalid.

                 The riaht to exounction      is neither a
              common law nor a constitutional riaht. Cvrus
              v. State, 601 S.W.ld 776 (Tex. Civ. App. -
              Dallas 1980, writ     ref'd n.r.e.);     Texas
              peoartment of Public Safetv v. Failla,     619
              S.W.2d 215 (Tex. Civ. App. - Texarkana   1981,
              no writ): Annot.   11 A.L.R.4th   956  (1982).
              Rather, it exists as a statutorv orivileae
              which  is aranted and. therefore,      can be
              limited bv the leaislature. Where a cause of



                                    p. 4552
Honorable Jimmy F. Davis - Page 4     (JM-912)




       action is derived    solelv bv statute.      the
       statutorv   orovisions   are    mandatorv    and
       exclusive and must be COmDlied with or the
       action   is not maintainable.      Schwartz V.
       Texas Denartment of Public Safetv    415 S.W.2d
       12 (Tex. Civ. App. - Waco      1967: no writ);
       Me&da v. Texas i&icioal    Retirement   Svstem,
       597 S.W.Zd 55 (Tex. Civ. ADD. - Austin     1980,
       no writ): Rowden v. Texas-Catastroohe      ProDi
       ertv Insurance Association,     677 S.W.Zd    83
       (Tex. App. - Corpus Christi       [13th Dist.]
       1984, writ ref'd n.r.e.). Where a statutorv
       privileae exists, it lies within the Dower of
       the leaislature   to desianate    a oarticular
       court as the exclusive   tribunal to hear the
       matter. Winaus
                  '     v. Wadlev, 115 Tex. 551, 285
       S.W. 1084 (1926): mha        Petroleum   Co. v.
       Terrell, 122 Tex. 257, 59 S.W.2d 364     (1933).
       Appellees did not adhere strictly to the
       requirements of Section 55.02.

           Aooellees   aroue that     the word     'mav'
        creates   a nennissive    venue statute.     and
        therefore, the aeneral rules of venue allow
        the oetition to be filed in the countv where
        the aonellees    resided.    Exnunction   of   a
        sirnina   record  is not a common-law     riaht.
        Therefore, the statutorv desianation of venue
        .iS mandatorv      and     confers    exclusive
        iurisdiction.    McGreaor    v . Clawson,    506
        S.W.2d 922 (Tex. Civ. App. - Waco 1974, no
        writ): Po vner v. Bowie Indeoendent       School
        Dist., 627 S.W.2d 517 (Tex. App. - Fort Worth
        [2nd Dist.] 1982, no writ). The second point
        of error is sustained.    (Emphasis added.)

705 S.W.2d 181,   182-83 (Tex.    APP- -   Houston   [14th   Dist.]
1985.

     The holding in Autumn Hills is that expunction is a
statutory privilege,   and compliance with the statute     is
mandatory.  It follows  that a petitioner seeking expunction
under article   55.01 must comply with the requirements
delineated in article 55.02 by filing a petition     in the
district court in the county in which the defendant      was
arrested. We do not address here any issue regarding record
retention by a governmental body.




                                 p. 4553
     .


         Honorable Jimmy F. Davis - Page 5     (JM-912)




              you ask whether   a conviction results for purposes     of
         section 22 of article 6687b, V.T.C.S., when the procedures
--       outlined in article 45.54 are applied.        Section    22 of
         article 6687b provides the procedure for suspension of a
         license to operate a motor vehicle    following a hearing    in
         which it has been determined that the holder of a license
         comes within any of the provisions which may authorize     such
         suspensions.   Undoubtedly,    you are    referring   to    the
         provision where by suspension      is authorized  because    an
         operator comes within the definition of a habitual    violator
         as the result of the number of convictions arising over a
         stated period of time.

               In Attorney General Opinion JM-526 (1986), it was noted
         that article 45.54 enables    'Ia 'justice' to make a form of
         probation available to defendants convicted of offenses with
         a maximum   punishment of a fine not to exceed $200, i.e.
         Class C misdemeanors."      Like our probation      statute   for
         higher grades of offenses, article 45.54 provides that ppg~
         conviction of the defendant the "justice" may suspend the
         imposition of the penalty and "defer final disnosition         of
         the case."    (Emphasis added.) m     Code of Crim. Proc. art.
         42.12. We believe there is an analogy            in convictions
 C       utilized for the purpose of suspension        of licenses   under
         section 22 of article 668713, V.T.C.S., and convictions      used
         for enhancement of punishment     for habitual offenders    under
         articles 12.42 (felony) and 12.43 (misdemeanor, class A and
         B) of the Penal Code.       It is "well established"      that a
         conviction is not final for enhancement oft punishment      under
         our habitual    offender statutes where there has been a
         probation granted, deferring      or suspending   imposition   of
         punishment.    & D rte Murchison    560 S.W.2d 654 (Tex. Crim.
         APP. 1978, no pzt.). Where probation          is revoked and a
         penalty imposed, the judgment of conviction has then become
         final   (absent appeal)    for purposes    of enhancement      of
         punishment.     Ex carte Wurchison.      While section     22 of
         article 6687b does not provide any express requirement       that
         convictions must be reflected in the final judgment, it is
         unreasonable to think that the legislature intended that a
         conviction could be utilized under the habitual violator
         statute where there might be a dismissal or expungment         of
         the case within 180 days.     Thus, when the penalty    assessed
         in an article 45.54 proceeding has been deferred, such con-
         viction may not be used in proving         a conviction     under
     n   section 22 of article 66872, until such time as the fine has
         been imposed and there is a final judgment in the case.        In
         the event the complaint is dismissed         or records of the
         arrest expunged, there is nothing available for the purpose
         of proving     a conviction    under the habitual       violator
 I--     provisions of article 6687b.



                                         p. 4554
Honorable Jimmy F. Davis - Page 6   (JM-912)




     In your   final question, you ask whether    the Texas
Department of Public Safety should record a conviction     in
its driver's   license records of a person who has been           -,
convicted of a class C misdemeanor and has had his penalty
deferred pursuant to article 45.54. Section 152 of article
6701d requires   a judge to report a conviction   under the
Uniform Act Regulating Traffic on Highways "within ten days
after conviction"    to the Department   of Public Safety.
Section 152 further provides that the department shall keep
all such records at its main office. The failure of any
judicial officer to comply with the reporting    requirement
"shall constitute misconduct in office and shall be grounds
for removal therefrom."

     A prior criminal record as defined by section 3(a) of
article 37.07 of the Code of Criminal Procedure includes    *Ia
probated or suspended   sentence that has occurred prior to
trial."   The courts have held that a prior conviction     for
which the defendant     received   a probated   sentence    is
admissible as part of the defendant's criminal record at the
punishment phase of the trial, even though the conviction
had been set aside following the successful completion      of
probation.   Vauahn v. State, 634 S.W.2d 310 (Tex. Crim. App.
1982, no pet.); Wavs v. Estell      505 F.2d 116    (5th Cir.
1974). In Attorney    General Opinion JM-526  (1986), it was
stated that 'Iaperson must be convicted before article 45.54
of the Code of Criminal Procedure is applicable."    It is our
opinion that even though the punishment    has been deferred
,under article 45.54, the conviction should be recorded     by
the Department of Public Safety.     In the event there has
been a deferral of the fine under article 45.54, the records
should reflect this fact. In the event of an expunction,
the use of the record for an     purpose is prohibited   under
section (1) of article 55.03. Y




   2. Section    (2) of article     55.03 states that    the
petitioner  may deny the occurence      of arrest  following
expunction except as provided   in section (3). Section   (3)     -,
states that when a person     is under oat~h in a criminql
proceeding and is questioned     about an arrest where the
records have been expunged,    he may "state only .that the
matter in qiestion has been expunged."




                              p. 4555
     ,


         Honorable Jimmy F. Davis - Page 7     (JM-912)




                                SUMMARY
--                  A person seeking expunction      of records
                 relating to a. complaint dismissed        under
                 article  45.54  of -~~
                                      "the  Code  of    Criminal
                 Procedure must comply with the requirements
                 delineated in article   55.02 of the Code of
                 Criminal Procedure by filing a petition      in
                 the district court in the county in which the
                 defendant was arrested.     When the penalty
                 assessed in an article 45.54 proceeding     has
                 been deferred,  such conviction may not be
                 used in proving a conviction under section 22
                 of article 6687b until such time as the fine
                 has been imposed and there is a           final
                 judgment in the case.      The Department    of
                 Public Safety should record a conviction even
                 though the punishment has been deferred under
                 article 45.54 of      the Code of      Criminal
                 Procedure.  The record should reflect the
                 fact that punishment has been deferred.




                                             J ‘/r~h
                                               Very truly yo r ,


                                                    &
                                               JIM     MATTOX
                                               Attorney General of Texas

         MARY KELL;ER
         First Assistant Attorney General

         LOU MCCREARY
         Executive Assistant Attorney General

         JUDGE ZOLLIE STEAKLKY
         Special Assistant Attorney General

         RICK GILPIN
         Chairman, opinion Committee

         Prepared by Tom G. Davis
         Assistant Attorney General




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