      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00707-CV



                                        C. S. S., Appellant

                                                  v.

                          Texas Department of Public Safety, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT
          NO. 10-0314, HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This is an expunction case. We will affirm the trial court’s order denying expunction.


                      FACTUAL AND PROCEDURAL BACKGROUND

               Appellant C.S.S. pleaded nolo contendere to the charge of unlawful restraint on

February 2, 2006. The trial court deferred an adjudication of guilt during a period of good behavior

by C.S.S. and placed him on unsupervised community supervision for six months. The deferral

order required C.S.S. to abide by certain terms and conditions and to do or refrain from doing certain

acts. Among his conditions, C.S.S. was ordered to pay a $300 fine and court costs of $220. By order

signed August 16, 2006, without further adjudication, C.S.S. was favorably and successfully released

from community supervision.

               C.S.S. filed a petition for expunction on February 25, 2010. The trial court found that

under the terms of the deferral order, C.S.S. “was placed on unsupervised deferred adjudication for
a term of six (6) months for the offense of UNLAWFUL RESTRAINT, and required to pay court

costs of $220, pay a fine of $300, and comply with the other terms and conditions set out in the

judgment . . . .” Therefore, the trial court concluded that C.S.S. was ineligible for expunction as a

matter of law because he had served a term of court ordered community supervision—in the form

of unsupervised deferred adjudication—for a period of time and was ordered to comply with

conditions. C.S.S. appeals from the order denying expunction (hereafter “the denial order”). He

represents himself on appeal pro se.

               We have attempted to discern C.S.S.’s complaints and issues on appeal, which are

difficult to construe. C.S.S. appears to argue that he is eligible and entitled to expunction because

he was not in fact placed on community supervision because his community supervision was

unconditional and unsupervised. The substance of C.S.S.’s complaints appears to be that there were

conditions omitted from his supervision order which the court could have ordered, that he was not

ordered to pay a supervision fee, and that he was not ordered to perform required community service.

Further, he argues, because he was not ordered to report to a supervision officer, “as a matter of

logic” without supervision there can be no community supervision. We disagree. C.S.S. has failed

to satisfy his burden of proving that he did not serve a term of court-ordered community supervision

in connection with his criminal charge.


                                          DISCUSSION

               Expunction is not a constitutional or common law right, but purely a statutory

privilege. Texas Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 675 (Tex. App.—Austin 2010, no

pet.); Heine v. Texas Dep’t of Pub. Safety, 92 S.W.3d 642, 648 (Tex. App.—Austin 2002, pet.

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denied). There is no absolute right to expunction, and the trial court has no equitable power to

expand the remedy. T.C.R. v Bell Cnty. Dist. Attorney’s Office, 305 S.W.3d 661, 663-64 (Tex.

App.—Austin 2009, no pet.). We review a trial court’s order granting or denying expunction for

abuse of discretion. See Nail, 305 S.W.3d at 678. However, to the extent expunction turns on a

question of law, we review it de novo, because a trial court has no discretion in determining the law

or applying it to the facts at hand. Id.

                The code of criminal procedure provides an avenue by which a person can establish

eligibility and entitlement to expunction. See Tex. Code Crim. Proc. Ann. art. 55.01(a) (West Supp.

2011). Article 55.01 requires one seeking expunction to prove a number of elements; each element

must be proven, and the burden of proving each element is on the petitioner. See T.C.R., 305 S.W.3d

at 663. Among these elements, the petitioner must prove that he or she “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 42.12 for any offense other than a Class C misdemeanor.”

Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (emphasis added). Absent such proof, expunction must

be denied. See T.C.R., 305 S.W.3d at 663.

        Article 42.12 governs “community supervision,” which is the statutory term for what is

commonly known as “probation.” Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp. 2011).

Community supervision, as relevant here, is defined as judicial placement of a defendant under a

continuum of programs and sanctions, with conditions imposed by the court for a specified period,




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during which criminal proceedings are deferred without an adjudication of guilt. Id. § 2(2); Nail,

305 S.W.3d at 680 (referring to this situation as “deferred adjudication community supervision

or probation”).

               Section 11 of article 42.12 provides that the court shall determine the reasonable

conditions with which a defendant must comply during a period of community supervision. Tex.

Code Crim. Proc. Ann. art. 42.12, § 11(a). Section 11 lists a number of conditions considered

reasonable, but the court has the discretion to choose, and is not limited to, those examples expressly

listed. See id. § 11(a)(1)-(24). While some of the conditions listed in Section 11 involve literal

active supervision by the state, community supervision does not require the court to impose

such conditions.     See id. at § 11(a)(4) (requiring reporting to supervision officer); Nail,

305 S.W.3d at 680 (“‘community supervision’ clearly does not require the imposition of these [active

supervisory] conditions”).

               Texas courts have uniformly held that court orders that provide for deferred

adjudication impose “court ordered community supervision under Article 42.12” within the meaning

of article 55.01 (a)(2), especially when the order imposes one or more of the conditions found in

article 42.12 section 11. See Texas Dep’t of Pub. Safety v. Jacobs, 250 S.W.3d 209, 211 (Tex.

App.—Dallas 2008, no pet.); Texas Dep’t of Pub. Safety v. Wallace, 63 S.W.3d 805, 807 (Tex.

App.—Austin 2001, no pet.).         Therefore, successful completion of misdemeanor deferred

adjudication renders a defendant ineligible for expunction of arrest records. See Nail, 305 S.W.3d

at 674 (applying this reasoning to defendant who, like C.S.S., pleaded nolo contendere to

misdemeanor offense, successfully completed deferred adjudication, and had his criminal charge



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dismissed); Wallace, 63 S.W.3d at 807. Deferred adjudication constitutes community supervision

even when the only conditions ordered are to pay a fine and court costs. Texas Dep’t of Pub. Safety

v. Moran, 949 S.W.2d 523, 527 (Tex. App.—San Antonio 1997, no writ); see also State v. Knight,

813 S.W.2d 210, 212 (Tex. App.—Houston [14th Dist.] 1991, no writ) (court ordered unsupervised

probation encompasses deferred adjudication).

               C.S.S. repeatedly states that his community supervision was unconditional as well

as unsupervised.1 However, the findings of the trial court are to the contrary. The deferral order

deferred C.S.S.’s final adjudication of guilt and placed him on community supervision for a term of

six months. The order conditioned deferral of adjudication of guilt on C.S.S.’s good behavior. The

order contained further conditions, including that C.S.S. pay a fine of $300, pay court costs of $220,

commit no offense against the laws of this or any other state or of the United States, avoid injurious

and vicious habits, avoid persons and places of disreputable or harmful character, obtain and keep

gainful employment, and support any dependents. These conditions mirror many of those found in

Section 11. As a result, the trial court concluded that C.S.S. had been placed under community

supervision and was thereby not eligible for expunction and denied the request.




       1
         We note that the facts here are much different from those in State v. R.B., 600 S.W.2d 296
(Tex. App.—Dallas 1985, no writ), upon which C.S.S. seems to rely. There, the order deferring
R.B.’s adjudication contained no conditions of probation and the order expressly stated that “there
shall be no court ordered supervision or probation of Defendant under Article 42.13” (the
predecessor statute). Further, it appears that the reasoning in R.B. has been superseded by statute and
is no longer authoritative. See Texas Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 681 n.8 (Tex.
App.—Austin 2010, no pet.) (providing detailed discussion of statutory provisions); see also Texas
Dep’t of Pub. Safety v. Moran, 949 S.W.2d 523, 527 (Tex. App.—San Antonio 1997, no writ); State
v. Knight, 813 S.W.2d 210, 212 (Tex. App.—Houston [14th Dist.] 1991, no writ).

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               C.S.S. had the burden of adducing evidence that the county court’s deferral order

imposed no court ordered community supervision under Article 42.12, and he failed to do so.

                                         CONCLUSION

               The facts as found by the trial court were sufficient to support a finding that C.S.S.

completed a term of court ordered community supervision. As a result, C.S.S. is not eligible

for expunction.

               We overrule all of C.S.S.’s issues.       We affirm the order of the trial court

denying expunction.




                                              _____________________________________________

                                              Marilyn Aboussie, Justice

Before Chief Justice Jones, Justices Henson and Aboussie*

Affirmed

Filed: July 24, 2012

* Before Marilyn Aboussie, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
      See Tex. Gov’t Code Ann. § 74.003(b) (West 2005).




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