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                NO. 12-05-00100-CV
 
IN THE COURT OF APPEALS
 
TWELFTH COURT OF APPEALS
DISTRICT
 
TYLER, TEXAS
TEXAS
DEPARTMENT OF 
PUBLIC
SAFETY,    §          APPEAL FROM THE 
APPELLANT
 
V.        §          COUNTY
COURT AT LAW OF
 
JOHNNY
ALI LaROUSSI,
APPELLEE   §          KAUFMAN
COUNTY, TEXAS
 


















 
 

OPINION
            The Texas Department of Public Safety (DPS) appeals an
order granting expunction of an administrative license suspension to Johnny Ali
LaRoussi.  In three issues, DPS contends
the trial court had no authority to enter the expunction order.  We reverse the trial court’s order of
expunction and render judgment reinstating the administrative license
suspension.
 
Background
            LaRoussi was indicted for driving while intoxicated (DWI)
after being arrested in Kaufman County on November 4, 2003.  Later, the Kaufman County district attorney
dismissed the indictment before LaRoussi was brought to trial.  On August 24, 2004, LaRoussi filed a “Request
For Expunction” with the following statement:
 
[D]efendant
is entitled to an expunction of all records and files relating to said alleged
offense of DWI under Article 55.01(a)(1)(A) of the Texas Code of Criminal
Procedure because Defendant was not convicted of the alleged offense.
 
Following a hearing, the trial
court entered an order on October 1, 2004 finding that LaRoussi was “entitled
to expunction” with respect to the DWI:
[T]he
Court further finds that the circumstances surrounding the dismissal of said
offense or the quashing of the indictment or information indicate that there
was an absence of probable cause at the time of such dismissal due to false
information.




 
The trial court then ordered
various governmental entities, including DPS, to “obliterate all public
references” to “the arrest and/or alleged offense.”  The record before us shows nothing occurring
from October 1 until December 21, 2004 when the following order was signed and
entered by the trial court:
 
CAUSE NO. 66048CC
 
 
STATE OF TEXAS           §              IN THE
COUNTY COURT
 
                v.             §              AT
LAW
 
                JOHNNY
ALI LAROUSSI               §              KAUFMAN COUNTY, TEXAS
 
 
ORDER
 
The
Court, having determined that the DWI Case was filed by mistake on false
information of driving while intoxicated at a Pre-Trial hearing before the
court on _______, in Cause No. 66048CC, and having further determined that this
charge was the basis of the ALR suspension which was effective from 02-11-04 to
02-09-06.
 
IT
IS HEREBY ORDERED, ADJUDGED AND DECREED THAT THE DEPARTMENT OF PUBLIC SAFETY
SHALL IMMEDIATELY RESCIND THE DRIVER’S LICENSE SUSPENSION FROM DEFENDANT Johnny
Ali Laroussi, AND SHALL REMOVE ANY REFERENCE TO THE SUSPENSION FROM
DEFENDANT Johnny Ali Laroussi’s DRIVING RECORD. [See Transp. Code §524.015
(b); §724.048 (c)].
 
IT
IS FURTHER ORDERED THAT IF THE DRIVER’S LICENSE ALR SUSPENSION IS NOT YET
IMPOSED, THE DEPARTMENT OF PUBLIC SAFETY SHALL NOT SUSPEND THE DRIVER’S LICENSE
OF DEFENDANT Johnny Ali Laroussi.
 
                                                                                SIGNED
and ENTERED this 21st Day of December, 2004
 
                                                                                /s/------------------------------------            
                                                                                (JUDGE
PRESIDING)
                                                                                County
Court at Law
                                                                                Kaufman
County, Texas
 
            DPS filed a motion for new trial attempting to overturn
the trial court’s December 21 order expunging the administrative license
suspension of LaRoussi.  The trial court
denied the motion, and DPS timely filed this appeal.  
 
 
Trial Court’s Plenary Power




            In its second issue, DPS contends that the trial court
abused its discretion by entering the December 21, 2004 order expunging the
administrative license suspension because the court’s  plenary power ended on October 31, 2004.  Citing no supporting authority, LaRoussi
responds that courts in Texas “routinely enter orders of expunction long after
thirty days have elapsed.”
Applicable Law
            A person arrested for either a felony or misdemeanor is
entitled to have all records and files relating to the arrest expunged if the
indictment was dismissed or quashed and the court finds that the indictment or
information was dismissed or quashed because of mistake, false information, or
other similar reason indicating absence of probable cause that the person
committed the offense.  Tex. Code Crim. Proc. Ann. art.
55.01(a)(2)(A)(ii) (Vernon Supp. 2005). 
The right to expunction of criminal records is a creature of statute,
and the Texas Code of Criminal Procedure governs the process. Tex. Dep’t
of Public Safety v. Moore, 51 S.W.3d 355, 357 (Tex. App.–Tyler 2001, no
pet.).  However, expunction of records is
a civil claim, not a criminal case.  See
State v. Henson, 573 S.W.2d 548, 549 (Tex. Crim. App. 1978).
            An administrative license suspension entered by DPS
following an indictment for a DWI may be expunged following an acquittal of the
DWI charges.  See Tex. Transp. Code Ann. §§ 524.015,
724.048 (Vernon 1999).  The right to
expunction is statutory; courts have no equitable power to expunge
records.  See Ex parte
Harrison, 52 S.W.3d 901, 902 (Tex. App.–Eastland 2001, no pet.).  A case attempting expunction of an
administrative license suspension is a separate civil matter beyond expunging a
DWI indictment and arrest.  See Tex. Code Crim. Proc. Ann.  art. 55.06 (Vernon Supp. 2005).  
            A trial court has plenary power over its judgment until
it becomes final.  Fruehauf Corp.
v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993).  A final judgment is one that finally disposes
of all remaining parties and claims based on the record in the case.  Lehmann v. Har-Con Corp., 39
S.W.3d 191, 200 (Tex. 2001).  A trial
court retains plenary power for thirty days after signing a final judgment
absent the filing of a motion for new trial or other posttrial motion
challenging the judgment.  Tex. R. Civ. P. 329b(d), (e), (g).  Orders issued after the expiration of a trial
court’s plenary power are void for lack of subject matter jurisdiction.  See In re Barrett, 149 S.W.3d
275, 278 (Tex. App.–Tyler 2004, orig. proceeding); see also Mapco, Inc.
v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (judgment is void when a
trial court had no authority or capacity to act as a court).  A trial court abuses its discretion when it
attempts to exercise a power that it does not legally possess. Stone v.
Griffin Communications and Sec. Sys., Inc., 53 S.W.3d 687, 695 (Tex.
App.–Tyler 2001, no pet.).  A trial court
may be reversed for abusing its discretion only when the court of appeals
determines the trial court acted in an unreasonable or arbitrary manner.  Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223, 226 (Tex 1991).  Stated
somewhat differently, abuse of discretion occurs when a trial court acts
without reference to any guiding rules and principles.  Id. A clear failure by the
trial court to analyze or properly apply the law correctly constitutes an abuse
of discretion.  In re Moore,
153 S.W.3d 527, 532 (Tex. App.–Tyler 2004, orig. proceeding) [mand. denied]; see
also Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
Analysis
            The only civil claim before the trial court when it
entered its October 1 order expunging records was the DWI arrest and
indictment.  The order of that date
clearly expunged only records dealing with the DWI arrest and indictment.  No further pleadings or motions were filed
with the trial court within the next thirty days.  On October 31, 2004, the trial court lost
plenary power to issue any further orders of expunction in this case because it
had already dealt with the only pleaded claim for expunction.  The attempt to expunge the administrative
license suspension was a separate claim that was not brought before the trial
court before October 31, 2004.  See
Tex. Code Crim. Proc. Ann. art.
55.06.  We hold that the trial court lost
all plenary power in the existing civil case on October 31 and therefore its
December 21 order was void.  We sustain
DPS’s second issue.
Disposition
            Because DPS’s second issue is dispositive, we need not
consider its remaining issues.  See Tex. R. App. P. 47.1.  We reverse the trial court’s
order of December 21, 2004 and render judgment reinstating DPS’s
administrative suspension of LaRoussi’s license from February 11, 2004 to
February 9, 2006.  
                                                                                                     JAMES T. WORTHEN    
                                                                                                                 Chief Justice
Opinion
delivered April 12, 2006.
Panel
consisted of Worthen, C.J., Griffith, J., and DeVasto, J.
(PUBLISH)

