    OFPlCE   OF THE ATTORNEY     GENLUL     ST*TIE   OF TEX,G

    JOHN     CORNYN




                                                 December 22,200O



The Honorable Tim Curry                                         Opinion No. K-0320
Tarrant County Criminal District Attorney
Tarrant County Justice Center                                   Re: Whether a person who is sentenced to pay a
401 West Belknap                                                tine and to deferred adjudication probation after
Fort Worth, Texas 76196-0201                                    pleading guilty to a class C misdemeanor       in
                                                                county court is entitled to an expunction of his
                                                                arrest record (RQ-0258-K)

Dear Mr. Curry:

         You have requested our opinion as to whether an individual who is sentenced to pay a fine
and to deferred adjudication probation in a county criminal court is entitled to an expunction of his
arrest record. We conclude that, under such circumstances, he is not entitled to an expunction.

        The expunction         provision,   article 55.01 of the Code of Criminal Procedure,        provides,   in

relevant part:

                       (a) A person who has been arrested for commission of either a
                  felony or misdemeanor is entitled to have all records and tiles relating
                  to the arrest expunged if:

                          (1) the person is tried for the offense for which the person was
                  arrested and is:

                             (A) acquitted by the trial court, except as provided              by
                  Subsection (c) of this section; or

                                 (B) convicted and subsequently           pardoned; or

                          (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
The Honorable     Tim Curry - Page 2                     (JC-0320)




                 commission of a felony was presented, it has been dismissed and the
                 court finds that it was dismissed 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 of this code; and

                             (C) the person has not been convicted of a felony in the
                 five years preceding the date of the arrest.

TEX. CODE GRIM. PROC. ANN. art. 55.01 (Vernon Supp. 2000) (emphasis added). Article 55.01 thus
makes a person who has been arrested ineligible for expunction if he receives “court ordered
community supervision under Article 42.12.”

        You ask us to assume that a hypothetical defendant is arrested on a felony charge that is
subsequently reduced to a class A misdemeanor and filed in county criminal court. The defendant
then pleads guilty to a class C misdemeanor, is assessed a tine and court costs, and placed on
deferred adjudication probation for180 days. It has been suggested that, since the defendant in this
scenario pled guilty to a class C misdemeanor, he could not have been sentenced to “court ordered
community supervision under Article 42.12,” as required by subdivision (2)(B). Rather, he must
have received a suspended sentence and deferred adjudication probation under article 45.051 of the
Code of Criminal Procedure.’

        Article 45.0512 provides, in relevant part:

                      (a) On a plea of guilty or nolo contendere by a defendant or on a
                 finding of guilt in a misdemeanor case punishable by fine only and
                 payment of all court costs, the justice may defer further proceedings
                 without entering an adjudication of guilt and place the defendant on
                 probation for a period not to exceed 180 days.

                      .




         ‘There were two versions of article 45.051 enacted by the 76th Legislature. Compare Act of May 30, 1999,
76th Leg., RX, ch. 1545, 5 50, 1999 Tex. Gen. Laws 5314, 5324 (redesignating article 45.54 as article 45.051) with
Act of May 19, 1999,76th Leg., RX, ch. 532, 5 1, 1999 Tex. Gen. Laws 3022 ond Act of May 30, 1999,76th Leg.,
RX, ch. 1387, 5 1, 1999 Tex. Gen. Laws 4689,469O. For purposes of your inquiry, they are identical.

        2We refer here to Act ofMay   30, 1999,76tb   Leg., R.S., ch. 1545, 5 50, 1999 Tex. Gen. Laws 5314,5324.
The Honorable    Tim Curry - Page 3                (JC-0320)




                     (e) Records relating to a complaint dismissed as provided by this
                article may be expunged under Article 55.01 of this code. If a
                complaint is dismissed under this article, there is not a final
                conviction and the complaint may not be used against the person for
                any purpose.

Id. art. 45.051. Article 45.051 would seem on its face to apply to the situation you pose. The
hypothetical defendant did indeed plead guilty “in a misdemeanor case punishable by line only and
payment of all court costs.” Proceedings were deferred without the entry of an adjudication of guilt,
and defendant was placed “on probation for a period not to exceed 180 days.”

         Closer inspection, however, reveals that article 45.051 cam-rot be applied to the defendant’s
situation in the hypothetical you pose. Article 45.05 1 is a part of chapter 45 of the Code of Criminal
Procedure. Article 45.001 states, in part: “The purpose ofthis chapter is to establish procedures for
processing cases that come within the criminal jurisdiction of the justice courts and municipal
courts.” Id. art. 45.001. Article 45.002 provides: “Criminal proceedings in the justice and municipal
courts shall be conducted in accordance with this chapter, including any other rules of procedure
specifically made applicable to those proceedings by this chapter.” Id. art 45.002. Proceedings
involving the hypothetical defendant, however, were conducted in a county criminal court. Such a
court is not a “justice [or] municipal court,” and therefore, chapter 45 can have no application to an
order issued by that court.

         When deferred adjudication is imposed by other than a justice or municipal court, it is
imposed pursuant to article 42.12 of the Code of Criminal Procedure. Subsection S(a) thereof sets
forth the procedures applicable to deferred adjudication. Nothing therein or elsewhere in article
42.12 precludes its application to a plea of guilty to a class C misdemeanor.       Furthermore, as we
have noted, since article 45.05 1 simply cannot be applied to proceedings in county court, it follows
that article 42.12, the only other statute dealing with deferred adjudication, is the applicable statute
in the circumstances you present. Article 1.02 declares that “[tlhe procedure herein prescribed shall
govern all criminal proceedings instituted after the effective date of this Act.” Id. art. 1.02 (Vernon
 1977). “[C]ounty courts at law with criminal jurisdiction” are among those to whom the Code of
Criminal Procedure is generally applicable.         Id. art. 4.01 (Vernon Supp. 2000). Thus, the
hypothetical defendant of whom you inquire must necessarily have received deferred adjudication
pursuant to article 42.12. As a result, such defendant does not meet the requirement of subdivision
(a)(2)(B) of article 55.01, because he in fact received “court ordered community supervision under
Article 42.12.” Accordingly, he is not entitled to the expunction of his arrest record under article
55.01.
The Honorable Tim Curry     - Page 4             (JC-0320)




                                       SUMMARY

                        A person who is sentenced to pay a tine and to deferred
               adjudication probation in a county criminal court is not entitled to an
               expunction of his arrest record under article 55.01 of the Code of
               Criminal Procedure.




                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
