                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                               Nos. 04-13-00099-CV, 04-13-00100-CV,
                                        and 04-13-00101-CV

                                 EX PARTE Sean C. MCNAMARA

                      From the 198th Judicial District Court, Kerr County, Texas
                         Trial Court Nos. 121073B, 121074B, and 121075B
                              Honorable Rex Emerson, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Marialyn Barnard, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: March 26, 2014

AFFIRMED

           Appellant Sean C. McNamara appeals the trial court’s order denying his expunction request

relating to cause numbers 121073B, 121074B, and 121075B. On appeal, McNamara argues he

was placed on deferred adjudication and a final conviction was never entered on the offenses in

question. Because McNamara failed to prove the statutory requirements of Texas Code of

Criminal Procedure article 55.01(a), we affirm the trial court’s order.

                                            BACKGROUND

           On January 9, 1994, McNamara was charged with driving while intoxicated. McNamara

contends he was placed on deferred adjudication and successfully completed the same on June 10,

2004. On April 9, 1994, McNamara was arrested and charged with two counts of aggravated

sexual assault of a child and one count of indecency with a child by exposure. Pursuant to a plea
                                                       04-13-00099-CV, 04-13-00100-CV, 04-13-00101-CV


bargain, McNamara was placed on deferred adjudication for each charge. Although McNamara

concedes he entered a plea of no contest to felony cause numbers B94-161 and B94-196, he

contends that he was never convicted of or plead guilty to the misdemeanor DWI charge. He

argues the DWI charge remained pending and was not referenced in the June 10, 1994 order.

       On November 6, 2012, McNamara filed three petitions for expunction related to the

following charges:

       (1)     Cause number 121073B, Aggravated Sexual Assault of a Child,
               corresponding criminal cause number B94-161;
       (2)     Cause number 121074B, Indecency with a Child, corresponding criminal
               cause number B94-196; and
       (3)     Cause number 121075B, Driving While Intoxicated, corresponding
               criminal cause number CR940112.

DPS filed an answer and general denial opposing the expunction on January 4, 2013. See Tex.

Dep’t of Pub. Safety v. Moran, 949 S.W.2d 523, 526 (Tex. App.—San Antonio 1997, no writ)

(explaining that once the State has filed a general denial, all facts in a petition for expunction are

not evidence and are placed at issue).

       On January 7, 2013, McNamara appeared telephonically before the trial court. McNamara

testified that in 1994, the trial court clearly stated McNamara was being placed on deferred

adjudication and that any findings of guilt would be deferred in accordance with article 42.12 of

the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 3(a).

McNamara further argued the no contest plea provided that upon successful completion of his

probation, McNamara would be discharged and proceedings against him would be dismissed.

McNamara contended that because he successfully completed his probation, he is entitled to an

expunction.

       On January 15, 2013, the trial court denied McNamara’s petition on each of the requested

charges.


                                                 -2-
                                                       04-13-00099-CV, 04-13-00100-CV, 04-13-00101-CV


                                       STANDARD OF REVIEW

       An appellate court reviews a trial court’s ruling on a petition for expunction under an abuse

of discretion standard. Ex Parte Green, 373 S.W.3d 111, 113 (Tex. App.—San Antonio 2012, no

pet.). However, “[t]o the extent a ruling on expunction turns on a question of law, we review the

ruling de novo because ‘[a] trial court has no “discretion” in determining what the law is or

applying the law to the facts.’” Id. (second alteration in original) (quoting Walker v. Packer, 827

S.W.2d 833, 840 (Tex. 1992)). Statutory construction is a question of law. City of Rockwall v.

Hughes, 246 S.W.3d 621, 625 (Tex. 2008); City of San Antonio v. Caruso, 350 S.W.3d 247, 250

(Tex. App.—San Antonio 2011, pet. denied).

       When construing statutory language, our primary objective is to “ascertain and give effect

to the Legislature’s intent.” Hughes, 246 S.W.3d at 625; Caruso, 350 S.W.3d at 250; see also

TEX. GOV’T CODE ANN. § 312.005 (West 2013). “Words and phrases that have acquired a

technical or particular meaning, whether by legislative definition or otherwise, shall be construed

accordingly.” TEX. GOV’T CODE ANN. § 311.011(b); see Hughes, 246 S.W.3d at 625. “Otherwise,

we construe the statute’s words according to their plain and common meaning, unless a contrary

intention is apparent from the context, or unless such a construction leads to absurd results.”

Hughes, 246 S.W.3d at 625–26 (citations omitted); accord Caruso, 350 S.W.3d at 250. In

construing the statutory language, we read the statute as a whole and interpret it so as to give effect

to every part, and we presume the legislature intended a just and reasonable result. See TEX. GOV’T

CODE ANN. § 311.021; Caruso, 350 S.W.3d at 250.

                                      EXPUNCTION STATUTE

       McNamara argues the specific language relevant at the time he entered his no contest plea

allowed for a later expunction. McNamara asserts the deferred status was a matter of “judicial

clemency” within the trial court’s sole discretion.
                                                 -3-
                                                     04-13-00099-CV, 04-13-00100-CV, 04-13-00101-CV


       The Texas Department of Public Safety (DPS) counters that McNamara was not entitled to

expunction because he failed to prove he was neither convicted nor placed on court-ordered

community supervision for the offenses in question. DPS further argues McNamara presented no

evidence at the hearing demonstrating his entitlement to an expunction. To the contrary, DPS

contends McNamara’s testimony that he was placed on community supervision for some of the

offenses negates his claims for expunction. We agree.

A.     Expunction: Texas Code of Criminal Procedure Article 55.01

       Although provided for in the Texas Code of Criminal Procedure, “[a]n expunction

proceeding is civil rather than criminal in nature.” Ex parte Green, 373 S.W.3d at 113 (citing Tex.

Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no

pet.)); see TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2013) (“Right to Expunction”).

Expunction is a statutory privilege, not a constitutional or common-law right; therefore, the

petitioner is not entitled to the expunction remedy unless he establishes that all of the statutory

requirements of article 55.01 were satisfied. See Ex Parte Green, 373 S.W.3d at 113; T.C.R. v.

Bell Cnty. Dist. Attorney’s Office, 305 S.W.3d 661, 663 (Tex. App.—Austin 2009, no pet.); J.H.J.,

274 S.W.3d at 806. Each statutory provision is mandatory and a petitioner is entitled to expunction

only upon a showing that each and every statutory condition has been met. J.H.J., 274 S.W.3d at

806. “The trial court must strictly comply with the statutory requirements, and it has no equitable

power to expand the remedy’s availability beyond what the legislature has provided.” T.C.R., 305

S.W.3d at 663–64; accord J.H.J., 274 S.W.3d at 806. Conversely, if the petitioner satisfies his

burden under article 55.01(a), the trial court must grant the expunction petition. T.C.R., 305

S.W.3d at 664.

       The relevant portion of article 55.01 of the Texas Code of Criminal Procedure provides as
follows:


                                               -4-
                                                    04-13-00099-CV, 04-13-00100-CV, 04-13-00101-CV


       (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) 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 . . . .

TEX. CODE CRIM. PROC. ANN. art. 55.01 (emphasis added).

B.     Analysis

       Here, McNamara contends he was entitled to an expunction of his arrests for driving while

intoxicated, aggravated sexual assault of a child, and indecency with a child. We address each

separately.

       1.     Driving While Intoxicated

       McNamara argues the State failed to produce any documents showing he pled guilty or

received “any sort of sentence on the Class B Misdemeanor.” But McNamara, not the State, bore

the burden to prove his entitlement to the expunction. See Ex Parte Green, 373 S.W.3d at 113;

T.C.R., 305 S.W.3d at 663; J.H.J., 274 S.W.3d at 806. Further, the court documents attached to

McNamara’s petition are not the documents associated with the DWI. At the hearing, the State

proffered that McNamara pled guilty to the offense. McNamara concedes the same in his petition

for expunction. Outside of the pleadings, McNamara presented no evidence at the hearing

regarding his DWI arrest.

       The record shows that McNamara pled guilty to the offense and served some form of

community supervision. McNamara, however, failed to provide any documentation that he was

acquitted or released from the charge. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1), (2).

Beyond the allegations within the petition, there is simply no evidence regarding the DWI, cause




                                              -5-
                                                       04-13-00099-CV, 04-13-00100-CV, 04-13-00101-CV


number 121075B (criminal cause number CR940112). Consequently, McNamara failed to satisfy

his burden under article 55.01 with regard to expunction of the DWI offense. Id.

       2.      Aggravated Sexual Assault of a Child and Indecency with a Child

       Contrary to McNamara’s claims of entitlement to an expunction on the felony charges,

both the records before the court and McNamara’s testimony at the hearing show McNamara was

placed on deferred adjudication supervision for these offenses. Specifically, the trial court inquired

as follows:

       The Court:      Mr. McNamara, were you on probation for these offenses?

       McNamara:       Yes, sir.

       The Court:      You were under supervision of the department, the community
                       supervision department?

       McNamara:       Yes, I was.

McNamara contends he is entitled to expunction because the case was dismissed after he

successfully completed his probation. We disagree.

       The plain language of article 55.01(a)(2) clearly requires a court to expunge all records and

files relating to the arrest when there has been not final conviction and “there was no court-ordered

community supervision.” Id. The bar to expunction remains even if the deferred-adjudication

community supervision has been completed and consequent dismissal obtained. Harris Cnty. Dist.

Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991).

       In his testimony to the trial court, McNamara admitted he served a term of deferred

adjudication. This was a deliberate, clear, and unequivocal judicial admission before the court.

See Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex. 1993); Mendoza v. Fid. &

Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980); Tschirhart v. Tschirhart, 876




                                                 -6-
                                                     04-13-00099-CV, 04-13-00100-CV, 04-13-00101-CV


S.W.2d 507, 508 (Tex. App.—Austin 1994, no writ) (holding court may take judicial notice of

filed pleadings when supported by testimony, other proof, or admissions by the other party).

       DPS, in its answer, attached a copy of McNamara’s Deferred Adjudication Judgment that

resulted from his no contest plea. See Tex. Dep’t of Pub. Safety v. Butler, 941 S.W.2d 318, 321

(Tex. App.—Corpus Christi, no writ) (“Deferred adjudication probation constitutes a ‘court

ordered probation’ for purposes of article 55.01(a)(2)(B), and therefore renders the defendant

ineligible for expunction of his records.”); accord State v. Knight, 813 S.W.2d 210, 212 (Tex.

App.—Houston [14th Dist.] 1991, no writ) (holding “court ordered probation” encompasses

deferred-adjudication community supervision).        Thus, the face of the record reveals that

McNamara served a term of community supervision under article 42.12 of the Code of Criminal

Procedure, and McNamara failed to establish that he meets all of the statutory requirements for an

expunction of the aggravated sexual assault and indecency with a child under article 55.01. See

TEX. CODE CRIM. PROC. ANN. arts. 42.12 § 5, 55.01(a)(2).

       Because McNamara failed to show that all of the statutory requirements had been met with

regard to the challenged charges, he was unable to prove his entitlement to an expunction of these

records. Accordingly, we overrule his first issue.

                                 DPS’S LATE FILED RESPONSE

       McNamara next contends the trial court violated his due process rights by allowing and

considering DPS’s argument, answer, and general denial filed only one business day before the

expunction hearing. McNamara further argues he was not served with the answer. DPS counters

the answer was timely filed and served.       Even assuming improper service, DPS contends

McNamara’s failure to object at the hearing waived his right to complain on appeal.

       To preserve a complaint for appellate review, a party must make a timely request,

objection, or motion in the trial court with sufficient specificity to make the court aware of the
                                               -7-
                                                      04-13-00099-CV, 04-13-00100-CV, 04-13-00101-CV


complaint, objection, or motion, and obtain an adverse ruling. TEX. R. APP. P. 33.1; see also Finley

v. May, 154 S.W.3d 196, 200 (Tex. App.—Austin 2004, no pet.). McNamara waived error by

failing to object that DPS’s answer was untimely.

       Furthermore, even if DPS’s answer was untimely, the error is harmless. The burden to

establish his entitlement to expunction rested solely with McNamara. See Ex Parte Green, 373

S.W.3d at 113; T.C.R., 305 S.W.3d at 663; J.H.J., 274 S.W.3d at 806. DPS bore no burden of

production. Based on the evidence presented, the trial court was required to make a determination

under article 55.01. TEX. CODE CRIM. PROC. ANN. art. 55.01. Even when an agency does not

answer or appear at the expunction hearing, the court must still resolve “whether the petitioner has

satisfied the statutory requirements [under article 55.01].” Tex. Dep’t. of Pub. Safety v. Moran,

949 S.W.2d 523, 525 (Tex. App.—San Antonio 1997, no writ) (rejecting argument that DPS’s

failure to appear resulted in a default judgment). As we stated above, McNamara failed to meet

his burden and we therefore overrule his second issue.

                                          CONCLUSION

       Because McNamara failed to establish his right to expunction under article 55.01 of the

Texas Code of Criminal Procedure, we affirm the trial court’s order.


                                                  Patricia O. Alvarez, Justice




                                                -8-
