                           NUMBER 13-18-00659-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


                                EX PARTE A.R.Z.


                   On appeal from the 197th District Court
                        of Cameron County, Texas.


                       MEMORANDUM OPINION
              Before Justices Benavides, Perkes, and Tijerina
               Memorandum Opinion by Justice Benavides

      By two issues, appellant, the Texas Department of Public Safety (the Department),

appeals an order expunging all files and records relating to appellee A.R.Z.’s offense of

felony theft over $200, a third-degree felony. See TEX. PENAL CODE ANN. § 31.03 (Acts of

1975, 64th Leg., p. 914, ch. 342, Sec. 9, effective September 1, 1975). The Department

argues that: (1) A.R.Z. is not entitled to expunction because he served a term of

community supervision arising out of the arrest; and (2) the trial court’s order of

expunction is not supported by legally sufficient evidence. A.R.Z. also raises additional
issues for us to consider. He: (1) challenges this Court’s jurisdiction because the original

amount in controversy was less than $250.00; (2) asks this Court to revisit its previous

decision regarding restricted appeals when the Department does not appear; (3) asks if

a presidential pardon on a companion federal case entitled A.R.Z. to an expunction under

article 55.01(a)(1)(B)(i) of the code of criminal procedure; and (4) asks whether he is

entitled to an expunction because he received judicial clemency under article 42 of the

code of criminal procedure because the trial court felt he was a “victim of circumstance.”1

We affirm.

                                          I.       BACKGROUND

        A.R.Z. was indicted in 1976 for felony theft over $200 out of Duval County, Texas.

See id. His theft case was subsequently transferred to Cameron County, Texas. A.R.Z.

pleaded guilty to the offense as charged on June 6, 1977, and on June 17, 1977, he was

sentenced to two years’ imprisonment in the Texas Department of Corrections, with that

sentence probated for a period of ten years, and was ordered to pay restitution in the

amount of $8,805.00. On October 18, 1978, his probation was modified to include a credit

of $5,000.00 paid to the United States District Court for the Southern District of Texas in

cause number 75-C-45, a federal offense arising out of the same set of facts.2

        On November 16, 1978, the trial court signed an order “Setting Aside Probation

and Dismissing Cause,” stating that on recommendation from the State that A.R.Z.’s

probationary period be reduced to that date and terminated. Additionally, the order


        1  A.R.Z. did not file a separate notice of appeal, so he is not entitled to any relief on any issue he
raises, other than jurisdiction. See TEX. R. APP. P. 25.1.
         2 According to evidence presented to the trial court, A.R.Z. was granted a presidential pardon from

President Ronald Reagan for his federal case, following the grant of judicial clemency in this case.


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allowed A.R.Z. to “withdraw his aforesaid plea of guilty to said original charge, and that

said cause, accusation and indictment on which said charge is based be, and is hereby,

dismissed; and that the said defendant herein be, and is hereby released from any and

all penalties and disabilities resulting from the offense of which he was convicted.”

                                   II.     JURISDICTION

       A.R.Z. argues that this Court lacks jurisdiction over the Department’s appeal

because the underlying offense of felony theft fails to show an amount in controversy

exceeding $250.00. See TEX. CIV. PRAC. & REM. CODE § 51.012. However, nothing in the

expunction statute requires a theft amount in controversy to confer the court of appeals

with jurisdiction in an expunction related appeal. Although it is true that an expunction

proceeding is civil in nature, and the petitioner must show all of the statutory conditions

have been met, this case was a felony level offense when A.R.Z. was charged with the

theft and therefore, the district court had proper jurisdiction. See Ex Parte Vega, 510

S.W.3d 544, 548 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.); see also TEX.

PENAL CODE ANN. § 31.03. Therefore, we properly have jurisdiction because appellate

courts have jurisdiction over district court appeals. See TEX. R. APP. P. 25.1. We overrule

A.R.Z.’s first issue.

                                    III.   EXPUNCTION

       By its first two issues, the Department argues that A.R.Z. was not entitled to an

expunction. It alleges that: (1) A.R.Z. served a term of community supervision for the theft

charge, therefore, rendering him ineligible for an expunction, and (2) that A.R.Z. failed to

present legally sufficient evidence to support his petition for expunction.



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       A.     Standard of Review

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

discretion. Tex. Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—Austin

2014, pet. denied) (en banc). A trial court abuses its discretion when it renders a decision

that is (1) arbitrary, unreasonable, or without reference to guiding rules or principles, or

(2) without supporting evidence. Id. However, to the extent that the court’s ruling on an

expunction petition turns on a question of law, we review that ruling de novo because the

trial court has no discretion in determining what the law is or applying the law to the facts.

Id.; Tex. Dep’t of Pub. Safety v. Ibarra, 444 S.W.3d 735, 738 (Tex. App.—Corpus Christi–

Edinburg 2014, pet. denied).

       B.     Applicable Law

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

commission of a criminal offense and released, and who meets certain other conditions,

to have the opportunity to have all records and files related to that arrest removed from

the government’s records. See TEX. CODE CRIM. PROC. ANN. art. 55.01; Ex Parte Vega,

510 S.W.3d 544, 548 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.). As previously

stated, although the statute is codified in the Texas Code of Criminal Procedure, an

expunction proceeding is civil in nature, and it is the petitioner’s burden to show that all

the statutory conditions have been met. Vega, 510 S.W.3d at 548. And because

expunction is not a right but a statutory privilege, each of the statutory conditions for

expunction are mandatory and exclusive. Id. It is an abuse of discretion for the trial court

to order an expunction when the statutory conditions have not been met because the

court possesses “no equitable power to permit expunction where it is not allowed” by

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statute. Id.

       Article 55.01(a) of the expunction statute governs a petitioner’s right to expunction

and provides, in relevant part, that:

       (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:

               (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); or

                     (B)     convicted and subsequently:

                             (i)    pardoned for a reason other than that described
                                    by Subparagraph (ii); or

                             (ii)   pardoned or otherwise granted relief on the
                                    basis of actual innocence with respect to that
                                    offense, if the applicable pardon or court order
                                    clearly indicates on its face that the pardon or
                                    order was granted or rendered on the basis of
                                    the person’s actual innocence; or

               (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 based on the person’s arrest or
                             charging the person with the commission of any felony
                             offense arising out of the same transaction for which
                             the person was arrested:

                             (i)    has not been presented against a person at any
                                    time following the arrest.

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TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1), (2).

       C.      Discussion

       1.      Entitlement to Expunction

       A.R.Z. argues that he was entitled to an expunction based on dismissal under

article 55.01(a)(1)(B)(ii). See id. art. 55.01(a)(1)(B)(ii). This case is different than a typical

expunction contest. Here, ARZ was granted judicial clemency by the convicting trial court.

Judicial clemency is within the trial court’s sole discretion. Cuellar v. State, 70 S.W.3d

815, 819 (Tex. Crim. App. 2002). When a trial judge believes that a person on community

supervision is completely rehabilitated and is ready to re-take his place as a law-abiding

member of society, the trial judge may

       set aside the verdict or permit the defendant to withdraw his plea. A judge
       acting under this subsection shall dismiss the accusation, complaint,
       information or indictment against the defendant. A defendant who receives
       a discharge and dismissal under this subsection is released from all
       penalties and disabilities resulting from the offense or crime of which he has
       been convicted or to which he has pleaded guilty.

Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 42A.701(f)); State v. Perez, 494 S.W.3d 901,

904 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.).

       A.R.Z. was granted judicial clemency, not because he completed his term of

community supervision successfully, but due to underlying facts that came out of his case.

Based on A.R.Z.’s Exhibit C from the expunction hearing, it was apparent the trial court

found A.R.Z. should be granted relief because it stated it felt A.R.Z. was a “victim of

circumstances in all of the events leading up to the charges against him” and found him

to fall under the “actual innocence” provision of the code. See TEX. CODE CRIM. PROC.

ANN. art. 55.01(a)(1)(B)(ii). Therefore, we agree that A.R.Z.’s expunction was properly

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granted under article 55.01(a)(1)(B)(ii). See id.

       Article 55.01(a) begins by providing that “[a] person who has been placed under a

custodial or noncustodial arrest” may “have all records and files relating to the arrest”

expunged if certain conditions are met. See id. art. 55.01(a). Where an arrest is made

pursuant to a charge for a single offense and the person is acquitted or convicted and

then pardoned pursuant to article 55.01(a)(1)(B), then article 55.01(a)(1) entitles the

person to expunction of all records and files relating to the arrest. State v. T.S.N., 547

S.W.3d 617, 621 (Tex. 2018). We overrule the Department’s first issue.

       2.     Evidence was Legally Sufficient

       By its second issue, the Department argues that A.R.Z. failed to show legally

sufficient evidence that his arrest did not result in community supervision. However,

A.R.Z. did testify at the expunction hearing and stated that the allegations against him

involved other family members of his that were involved in the county government. A.R.Z.

also entered exhibits into evidence during the hearing to support his testimony.

       We previously determined that A.R.Z. was entitled to an expunction because he

was granted judicial clemency and fell under the “actual innocence” provision. See TEX.

CODE CRIM. PROC. ANN. art. 55.01(a)(1)(B)(ii). Therefore, his community supervision

status was not applicable to the provision of the code of criminal procedure that his

expunction was granted under, and the evidence presented to the trial court was legally

sufficient to support his expunction under article 55.01(a)(1)(B)(ii). See id. We overrule

the Department’s second issue.




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                                  IV.    CONCLUSION

      We affirm the trial court’s order granting A.R.Z.’s expunction.



                                                              GINA M. BENAVIDES,
                                                              Justice



Delivered and filed the
9th day of April, 2020.




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