                             NUMBER 13-08-00398-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                            Appellant,

                                            v.

JIMMY HAROLD STATON,                                                           Appellee.


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


                          MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Chief Justice Valdez

       This is an appeal of an order of expunction. Appellee, Jimmy Harold Staton,

petitioned the trial court to expunge records of his arrest for driving while intoxicated, a

Class B misdemeanor. See TEX . PENAL CODE § 49.04 (Vernon 2003). The trial court

granted the expunction. In two issues, the Texas Department of Public Safety (the

Department) challenges the legal sufficiency of the evidence to support the order of
expunction. The Department argues that Staton failed to establish that he did not receive

court-ordered probation under article 42.12 of the Texas Code of Criminal Procedure and,

therefore, the trial court abused its discretion in granting Staton’s expunction. See TEX .

CODE CRIM . PROC . ANN . art. 42.12 (Vernon Supp. 2008). Because Staton fails to meet the

statutory expunction requirements, and because we have no equitable power to extend the

protections of the expunction statute, we reverse and render.

                                            I. BACKGROUND

       On January 10, 1965, Staton was arrested for the offense of driving while

intoxicated. See TEX . PENAL CODE § 49.04. On July 14, 1966, the court reopened and

dismissed Staton’s indictment after finding that he had successfully completed probation.

On March 11, 2008, Staton filed a petition for expunction, and attached the July 14, 1966

order dismissing the indictment upon the completion of probation.1 The Department filed

an answer containing a general denial, special exceptions, and an affirmative defense

contending that because Staton had received probation, he was not entitled to an

expunction. At Stanton’s expunction hearing, he argued that “[t]he Texas statute allows

for an expunction at that time [July 14, 1966], even if the defendant did serve probation.”

Although the trial court noted the Department’s objections, it granted the expunction,

considering that “[s]omething that was that old, and that was dismissed under current law

back then” should be expunged.


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           The order states:

       On this the 14th day of July, 1966, cam e on to be heard the petition of the Defendant, Jim m y
       H. Staton, for reopening and dism issing the indictm ent against him , in this cause and it
       appearing that the provision of the Adult Probation law have been complied with and
       Defendant [is] thereby entitled to such relief, it is accordingly

       Ordered that this cause against the Defendant, Jim m y H. Staton is hereby reopened and the
       indictm ent against him be, and is hereby dism issed. (Em phasis added.)
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                                 II. EXPUNCTION OF RECORDS

       By two issues, the Department contends that the trial court erred in granting Staton’s

petition for expunction because Staton presented no evidence that he did not receive

probation. We agree.

A.     Standard of Review

       A trial court’s ruling on an expunction is reviewed under an 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 when it acts without reference to guiding

rules and principles or if its actions are arbitrary and unreasonable. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

       When reviewing a challenge to the legal sufficiency of the evidence, we “view the

evidence in the light most favorable to the verdict, crediting favorable evidence if

reasonable jurors could, and disregarding contrary evidence if reasonable jurors could not.”

City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). The test for legal

sufficiency is whether the evidence would enable reasonable and fair-minded people to

reach the judgment being reviewed. Id. at 827-28.

B.     Requirements for Expunction

       Expunction is neither a constitutional nor 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 trial court must strictly comply with the statutory procedures for expunction,

and it commits reversible error when it fails to comply.” Tex. Dep’t of Pub. Safety v.

Fredricks, 235 S.W.3d 275, 281 (Tex. App.–Corpus Christi, 2007, no pet.). The applicable

rules a trial court applies in determining a person’s right to expunction are set out in article

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55.01 of the Texas Code of Criminal Procedure. See TEX . CODE CRIM . PROC . ANN . art.

55.01 (Vernon 2006). Article 55.01 sets out that a person is entitled to expunction of an

arrest record 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) of this
       section; or

       (B) convicted and subsequently pardoned; or


       (2) each of the following conditions exist:

       ....

       (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 . . . .

Id. The only clause of the statutory expunction provision at issue in this appeal is article

55.01(a)(2)(B).

C.     Analysis

       At the expunction hearing, Staton argued that, even if he did receive probation, “the

Texas statute allow[ed] for an expunction at that time.” Article 55.01 was not enacted until

August 29, 1977. Act of Aug. 29, 1977, 65th Leg., R.S., ch. 747, § 1, 1977 Tex. Gen. Laws

1880 (current version at TEX . CODE CRIM . PROC . ANN . art. 55.01). Prior to the enactment

of article 55.01, there was no law authorizing the expunction of criminal records. State v.

Arellano, 801 S.W.2d 128, 133 (Tex. App.–San Antonio 1990, no writ). We, therefore,

retroactively apply the current expunction statute to determine whether the trial court

properly expunged Staton’s criminal record. See id. at 129, 132-34.
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       A person’s entitlement to expunction arises only after all statutory conditions have

been met. Tex. Dep’t of Public Safety v. Butler, 941 S.W.2d 318, 320 (Tex. App.–Corpus

Christi 1997, no writ). “The trial court must strictly comply with the statutory procedures for

expunction, and it commits reversible error when it fails to comply.” Fredricks, 235 S.W.3d

at 281. To be entitled to an expunction, Staton has the burden of proving that all of the

statutory requirements have been satisfied. Id. at 282. At the expunction hearing, the

court took judicial notice of the July 14, 1966 order dismissing the indictment upon the

completion of probation. Staton presented no evidence that he did not receive probation;

instead, he simply argued that even if he had received probation, his criminal record should

be expunged. On this record, viewing the evidence in the light most favorable to the trial

court’s ruling, we conclude the evidence is legally insufficient to support the trial court’s

order of expunction. See City of Keller, 68 S.W.3d at 807, 827-28. The Department’s first

issue is sustained.

       Because Staton failed to prove that he was not placed on probation under article

42.12, and because we have no equitable power to extend the expunction statute beyond

its stated availability, Staton is not entitled to expunction of records related to this arrest.

See TEX . CODE CRIM . PROC . ANN . art. 55.01(a)(2)(B); see also Fredricks, 235 S.W.3d at

281. We conclude that the trial court abused its discretion by entering an order expunging

Staton’s records, and we sustain the Department’s second issue.

                                       III. CONCLUSION

       We reverse the trial court’s order and render judgment denying the expunction.

Pursuant to the Department’s prayer for relief, we order all documents that were turned

over to the trial court, or to Staton, to be returned to the submitting agencies. See Ex Parte

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Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of the

expunction applies to all respondents, even if they did not participate in the appeal).


                                                  ROGELIO VALDEZ
                                                  Chief Justice


Memorandum Opinion delivered and
filed on this the 13th day of August, 2009.




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