Affirmed and Opinion filed August 27, 2015.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-14-00930-CV

                          EX PARTE BRETT SCOTT

                   On Appeal from the 164th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2013-62041

                                   OPINION

      In this appeal from an order denying a petition for expunction, the question
is whether a person may have his arrest record expunged if the only basis for the
person’s arrest is that he was apprehended in Texas as a fugitive from another
state. We hold that Texas law does not currently allow for such relief. Because the
trial court reached the same conclusion, we affirm the order denying the petition
for expunction.

                                BACKGROUND

      Appellant pleaded guilty to a felony assault charge in the state of California,
where he received a suspended sentence of three years’ probation. With the
permission of California authorities, appellant was allowed to relocate to the state
of Texas and complete his probation here. The transfer placed appellant under the
supervision of Texas law enforcement officials and the Interstate Commission for
Adult Offender Supervision.

      At some point after appellant’s relocation to Texas, California authorities
received information that appellant had violated the terms of his probation. A
California court issued a warrant for appellant’s arrest, which was abstracted and
faxed to the Houston Police Department. The fax requested appellant’s extradition
to California. The fax did not indicate how appellant had violated the terms of his
probation, nor did it suggest that he had committed a new offense while in Texas.

      Upon his arrest in Houston, appellant was brought before a magistrate and
presented with an offer to waive his right to a formal extradition proceeding. When
appellant refused to waive that right, he was booked into the Harris County Jail.
The Harris County District Attorney’s Office subsequently moved to dismiss the
extradition proceeding because appellant’s case was transferred to the Interstate
Commission for new processing.

      Several months after the transfer, appellant reached an agreement with the
state of California regarding his pending extradition. The agreement included a
partial dismissal of the underlying felony charge. A California court ordered that
appellant’s guilty plea be withdrawn and that a plea of not guilty be entered in its
stead. The order released appellant of all penalties and disabilities resulting from
his former conviction, with certain limited exceptions. One of the exceptions
provided that appellant’s conviction would remain “a part of the court file which
can be viewed by the public.”

      Appellant then filed a petition in Texas to expunge the record of his fugitive
arrest. The Harris County District Attorney’s Office opposed the expunction for
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several reasons, one of which was that the arrest did not qualify as a type of arrest
that was subject to expunction. The trial court denied appellant’s petition after
concluding that the expunction statute was not “on point.” This appeal followed.

                                    ANALYSIS

      Article 55.01 of the Texas Code of Criminal Procedure governs the
expunction of criminal records. Although this statute is organized under a criminal
code, an expunction proceeding is actually civil in nature. See Tex. Dep’t of Pub.
Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no
pet.). The petitioner accordingly bears the burden of proving that all statutory
requirements have been met. See Harris Cnty. Dist. Att’ys Office v. Hopson, 880
S.W.2d 1, 3 (Tex. App.—Houston [14th Dist.] 1994, no writ). Because an
expunction is a statutory privilege rather than a constitutional or common law
right, the statutory requirements are mandatory and exclusive. See Harris Cnty.
Dist. Att’y v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.]
1997, no pet.). The trial court has no power to extend equitable relief beyond the
clear meaning of the expunction statute. See Ex parte Reed, 343 S.W.3d 306, 308
(Tex. App.—Houston [14th Dist.] 2011, no pet.).

      Article 55.01 sets forth many requirements before a petitioner may be
entitled to relief. As a threshold matter, the statute provides that it may only be
used to expunge records of a “custodial or noncustodial arrest for commission of
either a felony or misdemeanor.” See Tex. Code Crim. Proc. art. 55.01(a).
Appellant contends that his fugitive arrest falls within the scope of this language,
but the District Attorney’s Office disagrees. Because this disagreement concerns
the scope of a statute, which is a question of law, we apply a de novo standard of
review. See Ex parte S.C., 305 S.W.3d 258, 262 (Tex. App.—Houston [14th Dist.]
2009, no pet.).

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       Appellant argues that his fugitive arrest amounts to an arrest for the
commission of a felony because the arrest “was directly related to a felony
prosecution in California.” This argument lacks merit. Article 55.01 does not
authorize the expunction of an arrest record simply because the arrest is “related
to” the commission of an offense. Instead, the statute provides a strict requirement
that the arrest must have been “for” the commission of an offense. See Tex. Code
Crim. Proc. art. 55.01(a). We must give effect to the plain meaning of this text. See
Presidio Indep. Sch. Dist. v. Scott, 309 S.W.3d 927, 930 (Tex. 2010); Boykin v.
State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

       Here, appellant produced no evidence that he was actually arrested for the
commission of an offense. Rather, the evidence established that appellant was
arrested pursuant to an interstate compact regarding the extradition of fugitives.
See id. art. 51.13.

       Case law makes clear that a fugitive arrest for extradition purposes is not
akin to an arrest effectuated under the Texas Penal Code for the commission of
either a felony or misdemeanor. See Ex parte Clubb, 447 S.W.2d 185, 187 (Tex.
Crim. App. 1969). During the extradition process, two states are involved: the
demanding state that requests the arrest, and the asylum state that makes the arrest.
The role of the asylum state is essentially administrative. See Michigan v. Doran,
439 U.S. 282, 288 (1978) (indicating that interstate extradition should be a
“summary” process). After making the arrest, the asylum state may only consider
such limited matters as whether the extradition documents are valid on their face
and whether the arrestee is the same person named in the request. See Lott v. State,
864 S.W.2d 152, 153 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d, untimely
filed). The asylum state is not concerned with more substantive matters such as the
guilt or innocence of the arrestee or the presence of probable cause because those

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are issues to be resolved by the courts of the demanding state. See Ex parte Flores,
548 S.W.2d 31, 32 (Tex. Crim. App. 1977); Rentz v. State, 833 S.W.2d 278, 280
(Tex. App.—Houston [14th Dist.] 1992, no pet.).

      Because Texas is the asylum state in this case, it would have no basis for
prosecuting appellant in Texas for the commission of either a felony or
misdemeanor, absent a showing that he committed an offense while he was here.
As stated above, there has been no such showing. Appellant could not be
prosecuted simply for being a fugitive as there is no penal statute establishing such
an offense.

      In an alternative argument, appellant claims that the record of his fugitive
arrest should be expunged because “the manner of his arrest and subsequent
detention were in all other aspects like any ordinary arrest for a felony or
misdemeanor crime committed in Texas.” This argument is also unpersuasive.
Under a plain reading of Article 55.01, it is the type of arrest that qualifies a
person’s entitlement to relief, not the manner in which the person was processed.

      We hold that Article 55.01, as currently written, does not permit the
expunction of a fugitive arrest record. It permits only the expunction of an arrest
record when the arrest was made for the commission of either a felony or
misdemeanor. Because the evidence is undisputed that appellant was not arrested
for the commission of either a felony or misdemeanor, the trial court did not err
when it concluded that appellant was not entitled to relief under Article 55.01.




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                                 CONCLUSION

      The trial court’s order denying the petition for expunction is affirmed.




                                       /s/       Tracy Christopher
                                                 Justice




Panel consists of Justices Christopher, Brown, and Wise.




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