Opinion issued May 2, 2017




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00814-CV
                           ———————————
          TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
                                        V.
                                J.A.M., Appellee


                   On Appeal from the 149th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 86578-CV



                         MEMORANDUM OPINION

      The Texas Department of Public Safety appeals from an order of expunction

of criminal records granted to J.A.M., contending that the trial court abused its

discretion in failing to grant its motion for new trial. The Department claims that
J.A.M. failed to prove her entitlement to an expunction because, pursuant to a plea

agreement, the State dismissed two state jail felony charges in exchange for her

guilty plea to a Class A misdemeanor charge, and the court ordered deferred

adjudication community supervision arising out of the same arrest. The Department

further contends that the expunction order is not supported by legally sufficient

evidence and that the trial court erred in failing to hold a hearing on J.A.M.’s petition

before ruling. We reverse and remand.

                                  BACKGROUND

      On February 20, 2014, J.A.M. was arrested in Brazoria County for conduct

that led to grand jury indictments on two charges of criminal mischief resulting in

pecuniary loss of $2,500 or more but less than $30,000, a state jail felony. See TEX.

PENAL CODE ANN. § 28.03(b)(4)(A) (West Supp. 2016).                Pursuant to a plea

agreement, those charges, which were pending in the 300th District Court of

Brazoria County, were dismissed. Also pursuant to the plea agreement, the State

then filed an information alleging a single Class A misdemeanor charge of criminal

mischief in Brazoria County Court at Law Number 4, to which J.A.M. pleaded

guilty. The trial court accepted her plea, deferred the proceedings without an

adjudication of her guilt, and placed J.A.M. on 15 months’ deferred adjudication

community supervision. See TEX. R. CRIM. PROC. ANN. art. 42.12, § 5 (West. Supp.




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2016). The conditions required J.A.M. to pay a $500 fine; pay $5,300 in restitution

in full when she entered her plea; and perform 80 hours of community service.

       On May 13, 2016, J.A.M. petitioned to expunge the records of the two state

jail felony criminal mischief charges.        The petition does not mention the

misdemeanor charge. In its answer to the petition, the Department denied that

J.A.M. was entitled to an expunction because she served a term of community

supervision stemming from her arrest.

       The trial court signed an order granting the expunction on July 12, 2016. The

Department then moved for a new trial, renewing its contention that J.A.M. was

ineligible for an expunction and including copies of, among other things, the County

Court at Law Number 4’s order deferring adjudication of her guilty plea to the

misdemeanor charge and ordering community supervision.             That motion was

overruled by operation of law on September 25, 2016, and the Department timely

filed this appeal.1



1
       The Department’s brief describes this appeal as a restricted appeal pursuant
       to Texas Rule of Appellate Procedure 30. A restricted appeal is available for
       a party who did not participate in the hearing that resulted in a judgment or
       order and who did not timely file a post-judgment motion or request findings
       of fact and conclusions of law within six months after the judgment or order
       if the appellate complaint arises from error apparent on the record’s face. See
       TEX. R. APP. P. 25.1(d)(7), 26.1(c), 30; Alexander v. Lynda’s Boutique, 134
       S.W.3d 845 (Tex. 2004). The Department, however, timely filed a motion for
       new trial and filed her notice of appeal on the 90th day after the judgment was
       signed, making its appeal timely. See TEX. R. APP. P. 26.1(a)(1).
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                                    DISCUSSION

I.    Standard Of Review

      The Department challenges the propriety of the trial court’s order granting

J.A.M.’s petition for expunction. This Court reviews a trial court’s grant or denial

of a petition for expunction for an abuse of discretion. In re Expunction, 465 S.W.3d

283, 286 (Tex. App.—Houston [1st Dist.] 2015, no pet.). A trial court abuses its

discretion if it renders a decision that is arbitrary, unreasonable, or without reference

to guiding rules and principles. Mercedes–Benz Credit Corp. v. Rhyne, 925 S.W.2d

664, 666 (Tex. 1996); In re Expunction, 465 S.W.3d at 286.

      A trial court has no discretion in determining what the law is or applying the

law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). We therefore

review the trial court’s legal conclusions de novo and will uphold those conclusions

if the judgment is sustainable on any legal theory supported by the evidence. State

v. Heal, 917 S.W.2d 6, 9 (Tex. 1996); In re Expunction, 465 S.W.3d at 286.

II.   The Expunction Statute

      Chapter 55 of the Texas Code of Criminal Procedure sets forth the

requirements and procedures governing the expunction of criminal records. See

generally TEX. CODE CRIM. PROC. ANN. arts. 55.01–55.06. The legislative intent

behind the statute is to permit the expunction of records of wrongful arrests. Harris

Cty. Dist. Att’y’s Off. v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). Expunction is a


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statutory privilege, not a constitutional or common-law right. In re Expunction, 465

S.W.3d at 286. The petitioner seeking an expunction carries the burden of proving

that all statutory requirements have been satisfied. Id. The petitioner must satisfy

those requirements for all criminal charges arising from an arrest. Id. at 288.

        A petitioner may prove entitlement to expunction based on one of three

reasons, each subject to certain restrictions. TEX. CODE CRIM. PROC. art 55.01(a)

(West Supp. 2016); In re Expunction, 465 S.W.3d at 287. The petitioner must show

that:

        (1)   The petitioner has been arrested and placed on trial, but either was
              acquitted or was convicted and subsequently pardoned;
        (2)   The petitioner 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 for the offense; or
        (3) The petitioner was tried for and convicted of the offense for which
             he was arrested, but was acquitted on appeal.

TEX. CODE CRIM. PROC. art 55.01(a); In re Expunction, 465 S.W.3d at 287. J.A.M.’s

petition relies on the second reason. To be entitled to expunction, J.A.M. thus was

required to prove that (1) she has been released; (2) the charge, if any, has not

resulted in a final conviction and is no longer pending; and (3) there was no court-

ordered community supervision under article 42.12 of the Texas Code of Criminal

Procedure for the offense. TEX. CODE CRIM. PROC. art. 55.01(a)(2). The Department

challenges the trial court’s denial of its motion for new trial, contending that


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J.A.M.’s evidence, which does not address the misdemeanor charge, does not meet

the statutory conditions that would entitle her to expunction.

      Courts have interpreted article 55.01 as requiring an “arrest-based” approach

to expunction because it authorizes expunction of records concerning an arrest,

rather than distinct charges arising from an arrest. See In re Expunction, 465 W.S.3d

at 289–90 (citing Tex. Dep’t of Pub. Safety v. Dicken, 415 S.W.3d 476 (Tex .App.—

San Antonio 2013, no pet.)); S.J. v. State, 438 S.W.3d 838, 841–42 (Tex. App.—

Fort Worth 2014, no pet.). As a practical matter, this approach means that if

expunction is not available for all charges stemming from an arrest, it is not available

for any of those charges. Ve v. Travis Cty. Dist. Att’y, 500 S.W.3d 652, 656 & n.18

(Tex. App.—Austin—2016, no pet.). Under the plain language of the statute, a

petitioner is ineligible to expunge a charge for which she was arrested if the

petitioner served community supervision for any charge stemming from the arrest,

even if the charge for which the community supervision is served differs from the

one for which the person was originally arrested. See generally T. H. v. Tex. Dep’t

of Pub. Safety, 03-15-00304-CV, 2016 WL 5874869 (Tex. App.—Austin Oct. 6,

2016, no pet.) (declaring that all charges arising from arrest must meet article 55.01’s

requirements).




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III.   The Petition Does Not Satisfy Article 55.01(A)(2)’s Requirements
       for Expunction of the Dismissed State Jail Felony Cases

       J.A.M. was arrested for criminal mischief and subsequently was charged with

two counts of that offense. Pursuant to a plea agreement, the State dismissed those

charges and filed an information charging misdemeanor criminal mischief based on

the same arrest. Also pursuant to the plea agreement, J.A.M. pleaded guilty to the

criminal mischief charge and received deferred adjudication community

supervision.

       Until In re Expunction of R.H., No. 08-15-00288-CV, 2016 WL 5404772

(Tex. App.—El Paso 2016, no pet.), no Texas court of appeals appears to have

addressed whether expunction is permitted from dismissal of an indictment pursuant

to a plea agreement on another charge. See id. at *2. The R.H. court noted, however,

that expunction on that basis would not comport with the purpose of the expunction

statute, because the indictment’s dismissal under those circumstances would result

from “a plea bargain with the State and not because the indictment was based upon

mistake, false information, or other reason indicating absence of probable cause, as

required under the Texas Code of Criminal Procedure.” Id. at *1.

       In R.H., the petitioner sought expungement of a charge containing two counts

of aggravated assault with a deadly weapon which, at the State’s request, were

dismissed. Id. At the hearing on his petition, R.H. admitted that the trial court

granted dismissal because R.H. pleaded guilty to nine counts of criminal mischief in
                                         7
exchange for the State’s agreement to dismiss the aggravated assault charges. Id.

Likewise in this case, J.A.M. entered a guilty plea to a reduced charge of criminal

mischief in exchange for the State’s dismissal of the state jail felony charges against

her. The only distinction between R.H.’s situation and that of J.A.M. is that R.H.’s

plea agreement did not involve deferred adjudication community supervision, unlike

J.A.M.’s. But the statutory language requiring the petitioner to show she received

no court-ordered community supervision arising from the arrest makes this a

distinction without a difference. See TEX. CODE CRIM. PROC. art 55.01(a)(2). All of

the charges in each case stemmed from one arrest. Because the State’s motion for

new trial showed that J.A.M. did not qualify for expunction under article 55.01(a)(2),

we hold the trial court erred in failing to grant a new trial.

                                   CONCLUSION

      We reverse the judgment of the trial court and remand the case for new trial.




                                                Jane Bland
                                                Justice

Panel consists of Justices Keyes, Bland, and Huddle.




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