                                  NO. 12-10-00281-CV

                      IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

EX PARTE:                                    §              APPEAL FROM THE 115TH

                                             §              JUDICIAL DISTRICT COURT

JESSICA LYNN HILL                            §              UPSHUR COUNTY, TEXAS

                                  MEMORANDUM OPINION
       This is an appeal from an order of expunction.          In two issues, Appellant, Texas
Department of Public Safety, contends that Appellee, Jessica Lynn Hill, was not entitled to an
expunction order because she had entered a plea of guilty and served a term of community
supervision for the offense she sought to have expunged. We reverse and render.


                                         BACKGROUND
       On December 31, 2007, Jessica Lynn Hill was arrested for misdemeanor possession of
marijuana. She pleaded guilty to the offense. The trial court, however, deferred a finding of
guilt and placed Hill on community supervision for twelve months.            A month before the
termination of the twelve month period of community supervision, the district attorney filed a
motion for early termination of Hill‟s community supervision and asked the court to allow her to
withdraw her plea of guilty. The trial court granted the motion.
       On August 21, 2009, Hill filed her petition for expunction. The Department of Public
Safety filed its answer in opposition to Hill‟s petition. In its answer, the Department contended
that Hill‟s request should be denied, because she had pleaded guilty to the offense and had
received deferred adjudication under Texas Code of Criminal Procedure, Article 42.12, Section
5(a). Therefore, the expunction of the records of her arrest and conviction was barred by statute.
       At the hearing on Hill‟s motion, the district attorney noted that Hill could not satisfy the
requirements for expunction under the Code of Criminal Procedure. He also called the trial
court‟s attention to the Department‟s answer objecting to expunction. Nevertheless, he asked the
court to grant the expunction. The trial court granted the expunction and the Department
appealed.


                                          EXPUNCTION
       In two issues, the Department contends that the trial court erroneously granted Hill‟s
petition for expunction.
Standard of Review
       We review a trial court‟s ruling on a petition for expunction under the abuse of discretion
standard. Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.–Austin 2002, pet.
denied). A trial court abuses its discretion if it acts without reference to guiding rules or
principles or if its actions are arbitrary and unreasonable. Downer v. Aquamarine Operators,
701 S.W.2d 238, 241-42 (Tex. 1985). We review a trial court‟s factual findings for sufficiency
of the evidence, using the same standards that are applied in reviewing the evidence to support a
jury‟s finding. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). Where, as here, the trial
court makes no separate finding of facts, we will draw every reasonable inference that is
supported by the record in favor of the trial court‟s judgment. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990). A trial court‟s legal conclusions are reviewed de novo. BMC Software
Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002).
Applicable Law
       An expunction proceeding is civil rather than criminal in nature, although the expunction
statute is located in the Texas Code of Criminal Procedure. Tex. Dep’t of Pub. Safety v. J.H.J.,
274 S.W.3d 803, 806 (Tex. App.–Houston [14th Dist.] 2008, no pet.). Expunction is neither a
constitutional nor a common law right, but a statutory privilege. McCarroll v. Tex. Dep’t of
Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.–Fort Worth 2002, no pet.). The petitioner has the
burden of proving that all the statutory requisites have been satisfied. Id. The trial court must
strictly comply with the statutory requirements, and has no equitable power to extend the
protections of the expunction statute beyond its stated provisions.         Harris County Dist.



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Attorney’s Office v. M.G.G., 866 S.W.2d 796, 798 (Tex. App.–Houston [14th Dist.] 1993, no
writ).
         In this case, Hill sought expunction under Article 55.01(a)(2) of the Texas Code of
Criminal Procedure. This article provides, in relevant part, that 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) 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 . . . ;

                  (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 for any offense other than a Class C misdemeanor; and

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

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (Vernon Supp. 2010) (emphasis added).
Discussion
         Hill is entitled to expunction only if she establishes, among other conditions, that she did
not receive court-ordered community supervision under Texas Code of Criminal Procedure,
Article 42.12. It is undisputed that Hill entered a plea of guilty to the marijuana charge, and that
the trial court deferred adjudication and placed her on community supervision for twelve months.
See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 5(a) (Vernon Supp. 2010). Therefore, Hill cannot
satisfy the statutory requirements that would entitle her to expunction. Before filing her petition
for expunction, Hill had obtained a discharge of her community supervision under Texas Code of
Criminal Procedure, Article 20(a), the accusation against her had been dismissed, she had been
discharged, and she had been allowed to withdraw her plea of guilty.                     This, however, did not
alter her ineligibility to have the record of her arrest and plea expunged. An order granting a
discharge under Article 42.12, Section 20(a) does not override the provision of Article 55.01
barring expunction of an offense for which the court had ordered community supervision.
J.H.J., 274 S.W.3d at 808-09 (holding that “a person‟s release from the „penalties and
disabilities‟ of a criminal offense does not entitle that person to expunction, which is a civil




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privilege granted to eligible citizens”). Despite her discharge under Article 42.12, Section 20(a),
Hill remains ineligible to obtain expunction.
         We sustain the Department‟s first issue. Because this issue is dispositive, we need not
address the Department‟s remaining issue. See TEX. R. APP. P. 47.1.


                                                   DISPOSITION
         We reverse the judgment of the trial court and render judgment denying expunction.


                                                                BILL BASS
                                                                   Justice



Opinion delivered May 25, 2011.
Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.




                                                    (PUBLISH)




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