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providing that the statute is arrest-based and therefore does not permit expunction when the applicant pleaded guilty to one charge in exchange for a dismissal
Summary of this case from Ex parte F.M.J.Opinion
NUMBER 13-15-00202-CV
02-18-2016
EX PARTE VICTOR VILLAREAL DAVILA
On appeal from the 332nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Longoria
Memorandum Opinion by Justice Rodriguez
The Texas Department of Public Safety (the Department) filed this restricted appeal from an order expunging all files and records relating to the charge of attempted sexual assault alleged against appellee Victor Villareal Davila. By three issues, the Department contends that (1) Davila is not entitled to an expunction because the expunction statute is arrest based, not offense based; (2) even assuming the statute is offense based, Davila is not entitled to the expunction of files and records related to the attempted sexual assault charge because he did not establish lack of probable cause for the dismissal of that charge; and (3) whether the statute is arrest based or offense based, Davila failed to present legally sufficient evidence that he was entitled to an expunction of files and records related to the attempted sexual assault charge. We reverse and render.
I. BACKGROUND
On March 7, 2012, Davila allegedly grabbed a woman by her neck, put his hand in her shorts, and touched her breast and buttocks with the intent to commit sexual assault. He also allegedly locked a door in the store, restricting the woman's movements. Davila was arrested, and a grand jury returned an indictment charging him with the offense of attempted sexual assault. See TEX. PENAL CODE ANN. § 22.011 (West, Westlaw through 2015 R.S.) (setting out the elements of sexual assault, which is generally "a felony of the second degree"); see also id. § 15.01 (West, Westlaw through 2015 R.S.) ("An offense under this [criminal-attempt] section is one category lower than the offense attempted . . . ."). It is undisputed that three months later, Davila reached a plea agreement. The State agreed to dismiss the indictment in exchange for Davila's plea of guilty to the offense of unlawful restraint, a Class-A misdemeanor, arising out of the events that occurred on March 7, 2012. See id. § 22.02 (West, Westlaw through 2015 R.S.). It is undisputed that Davila reached a plea agreement with the district attorney's office. The agreement called for Davila to plead guilty to the offense of unlawful restraint, and in return, the State would dismiss the indictment for attempted sexual assault.
On November 8, 2012, following a plea hearing, the trial court accepted the plea agreement, granted the State's motion to dismiss the indictment for attempted sexual assault, and convicted Davila of unlawful restraint. The trial court sentenced Davila to confinement in the Hidalgo County Jail for 180 days and assessed a fine of $100. But, finding that Davila was eligible for community supervision, the trial court suspended his sentence and placed him on community supervision for two years.
On August 26, 2014, Davila filed a petition to expunge all "criminal records and files pertaining to [his] arrest" for the alleged offense of attempted sexual assault. See generally TEX. CODE CRIM. PROC. ANN. arts. 55.01-.06 (West, Westlaw through 2015 R.S.) (governing expunction of criminal records). In his petition for expunction, Davila asserted that he was entitled to an expunction "because an indictment or information was presented, it was dismissed indicating a lack of probable cause." He also alleged that the "charge ha[d] not resulted in a final conviction and [was] no longer pending, and that there was no court-ordered community supervision under Article 42.12[.]" In response, the Department filed an answer asserting that Davila was barred from expunging any arrest records "because the arrest resulted in a final conviction and court-ordered community supervision, the statute of limitations ha[d] not expired, and none of the other statutory [conditions] for an expunction [were] met."
Article 55.01(a) of the expunction statute was amended by the Texas Legislature in 2015. See Act of May 29, 2015, 84th Leg., ch. 770, § 2.23, sec. 55.01, 2015 Tex. Sess. Law Serv. (West, Westlaw), eff. Jan. 1, 2017. All citations in this memorandum opinion are to the current version of the statute.
On October 22, 2014, the trial court heard Davila's motion for expunction. Pursuant to article 55.01(a)(2) of the code of criminal procedure, after hearing arguments, the trial court granted Davila's request for expunction, finding that he was entitled to expunction of all records relating to his arrest for attempted sexual assault. See id. art. 55.01(a)(2). The trial court further found that "the circumstances surrounding the dismissal of said offense indicate that there was an absence of probable cause at the time of such dismissal to believe the person committed the offense or because it was void." See id. art. 55.01(a)(2)(A)(ii). This restricted appeal followed. See TEX. R. APP. P. 26.1(c) (providing that "in a restricted appeal, the notice of appeal must be filed within six months after the judgment or order is signed"); id. R. 30 (setting out the requirements that must be established in a restricted appeal).
The Department did not appear at the hearing on Davila's petition, but an attorney representing the Hidalgo County District Attorney's Office, which was also named in the case, appeared and argued against Davila. The trial court also heard argument of counsel for Davila. The parties offered no testimony and presented no evidence in support of their respective positions.
II. RESTRICTED APPEAL
The Department claims that it established all four requirements of this restricted appeal.
Davila has not filed an appellee's brief to assist us in the resolution of this matter.
A. Applicable Law and Standard of Review for a Restricted Appeal
To prevail on a restricted appeal, the Department must establish that: (1) it filed notice of the restricted appeal within six months after judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the complained-of judgment and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record.Ex parte Vega, No. 13-15-00245-CV, 2016 WL 455327, at *2 (Tex. App.—Corpus Christi Feb. 4, 2016, no pet h.) (citing TEX. R. APP. P. 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004)).
We limit our review in a restricted appeal to the face of the record; we do not consider extrinsic evidence. See Alexander, 134 S.W.3d at 848; Ex parte Vega, 2016 WL 455327, at *3. "[E]rror that is merely inferred [from the record] will not suffice." Ginn v. Forrester, 282 S.W.3d 430, 431 (Tex. 2009) (per curiam); Ex parte Vega, 2016 WL 455327, at *2. For these purposes, the "face of the record," consists of all the papers that were before the trial court at the time it rendered judgment. Ex parte Vega, 2016 WL 455327, at *2.
B. The First Three Requirements of a Restricted Appeal
Regarding the first requirement of a restricted appeal, the record reflects that the trial court signed the order of expunction on October 22, 2014, and the Department filed its notice of restricted appeal on April 22, 2015, within the six-month deadline. See TEX. R. APP. P. 30. So the Department established the first requirement. See id.; Alexander, 134 S.W.3d at 848.
As to the second requirement, Davila filed his petition ex parte, naming the Department as a state agency with records subject to expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(b)(8) (requiring an expunction petition to include the addresses of "law enforcement agencies" or "central state depositories of criminal records" that the petitioner believes might have records subject to expunction). The Department—an agency with records subject to expunction—had the right to be represented by counsel at the expunction hearing. See id. art. 55.02, § 3(c-1). Also, the Department—an agency subject to an expunction order—"may appeal the court's decision in the same manner as in other civil cases." Id. art. 55.02, § 3(a). As such, the Department is a party within the meaning of the statute and so satisfied the second requirement for a restricted appeal. See TEX. R. APP. P. 30; Ex parte Vega, 2016 WL 455327, at *2; Foster, 398 S.W.3d at 890; Tex. Dep't. of Pub. Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.—Dallas 2008, no pet.).
Liberally construing the third requirement—nonparticipation—in favor of the right to appeal, see Ex parte Vega, 2016 WL 455327, at *2 (citing Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam)), we conclude the Department met this requirement. Even though the Department filed an answer in response to Davila's petition, it did not participate in person or through counsel at the hearing that resulted in the expunction order. See TEX. R. APP. 30; Ex parte Vega, 2016 WL 455327, at *2 (citing Foster, 398 S.W.3d at 890 (holding that the Department met the nonparticipation requirement when it filed an answer asserting an affirmative defense but did not participate in person or through counsel in the expunction hearing)). And the Department did not file any timely post-judgment motions or requests for findings of fact and conclusions of law. See Ex parte Vega, 2016 WL 455327, at *2.
Having concluded that the Department established the first three requirements of a restricted appeal, we now turn to the fourth requirement—whether error is apparent on the face of the record. See TEX. R. APP. P. 30; Alexander, 134 S.W.3d at 848; Ex parte Vega, 2016 WL 455327, at *3.
C. The Fourth Requirement of a Restricted Appeal
In its first issue and specific to the fourth requirement of a restricted appeal, the Department asserts that Davila is not entitled to an expunction because the expunction statute is arrest based and not offense based. See TEX. R. APP. P. 30; TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). The Department contends that the statute only allows the expunction of records and files from an entire arrest and all offenses, which flow from that arrest and not the records and files from individual charges resulting from that arrest. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). The Department claims that error is apparent on the face of the record because the trial court misinterpreted the expunction statute as offense based and allowed the destruction of records from Davila's arrest for one charge (attempted sexual assault) after he was convicted and placed on community supervision for another charge (unlawful restraint) stemming from that same arrest. The Department contends that under a correct interpretation of the arrest-based expunction statute, Davila did not satisfy the following condition of article 55.01(a)(2): that "the charge, if any, has not resulted in a final conviction." Id. We agree with the Department.
1. Standard of Review for Construing Expunction Statute
"Statutory construction is a legal question we review de novo." City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). And although expunction proceedings are typically reviewed under an abuse of discretion standard, to the extent the court's ruling on an expunction petition turns on a question of law—in this case, statutory construction—we review that ruling de novo because the trial court has no discretion in determining what the law is or in applying the law to the facts. Ex parte Vega, 2016 WL 455327, at *3 (citing Tex. Dep't of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—Austin 2014, pet. denied) (en banc)); see City of Rockwall, 246 S.W.3d at 625.
"In construing statutes, we ascertain and give effect to the Legislature's intent as expressed by the language of the statute." City of Rockwall, 246 S.W.3d at 625. We assume that the statute's words bear their plain and common meaning unless the Legislature provided a definition or the words have acquired a technical or particular meaning. See Ex parte Vega, 2016 WL 455327, at *3 (citing City of Rockwall, 246 S.W.3d at 625-26). We consider the statute as a whole, reading each word and phrase in context, and interpret the statute to give effect to every part. Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007); Ex parte Vega, 2016 WL 455327, at *3. "[W]e may also consider the consequences of a particular construction." Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 87 (Tex. 2006) (citing TEX. GOV'T CODE ANN. § 311.023(1) (West, Westlaw through 2015 R.S.)).
2. Applicable Law for Expunction Proceeding
The expunction statute allows a person to request the removal of all information about his arrest from the State's records if he meets the statutory conditions set out in chapter 55 of the Texas Code of Criminal Procedure. See G.B.E., 459 S.W.3d at 625 (citing TEX. CODE CRIM. PROC. ANN. arts. 55.01-.06). Article 55.01(a)(2) of the expunction statute provides the following relevant condition:
(a) 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:
TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2).. . . .
(2) 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 the offense . . . .
Although codified by the Texas Code of Criminal Procedure, the expunction process is civil in nature, and the petitioner has the burden to show that he has met all statutory conditions. Ex parte Vega, 2016 WL 455327, at *3. And because expunction is not a right but a statutory privilege, each statutory condition or requirement for expunction is mandatory and exclusive. Id. (citing Ex parte Scott, 2016 WL 5092164, at Ex parte S.D., 457 S.W.3d 168, 171 (Tex. App.—Amarillo 2015, no pet.)). Moreover, the trial court has no equitable power to permit expunction when not allowed by the statute. Ex parte Vega, 2016 WL 455327, at *3 (citing Ex parte Scott, No. 14-14-00930-CV, 2015 WL 5092164, at *1 (Tex. App.—Houston [14th Dist.] Aug. 27, 2015, no pet.)); Ex parte S.D., 457 S.W.3d at 171).
In this case, to prove he was entitled to expunction under article 55.01(a)(2), Davila was required to establish the following conditions: (1) he had been released; (2) the charge, if any, did not result in a final conviction; (3) the charge, if any, is no longer pending; and (4) there was no court-ordered community supervision under article 44.12 of the Texas Code of Criminal Procedure for the offense. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); Ex parte Vega, 2016 WL 455327, at *4; G.B.E., 459 S.W.3d at 626.
3. Discussion
First, it is undisputed that the trial court dismissed the attempted sexual assault charge. Davila was, however, convicted for the refiled charge of unlawful restraint and placed on community supervision. The charge of unlawful restraint stemmed from the same arrest. Therefore, the question of law that we review de novo is whether the expunction statute allows for the expungement of only records related to Davila's charge of attempted sexual assault, when he was convicted and placed on community supervision for a refiled charge of unlawful restraint that arose from the same arrest. SeeEx parte Vega, 2016 WL 455327, at *4; G.B.E., 459 S.W.3d at 626.
The Department asserts "[n]othing in the plain language of [article 55.01(a)] allows records of each individual offense from an arrest to be separately expunged." We agree. Article 55.01(a) begins by providing that "[a] person who has been placed under a custodial or noncustodial arrest" may "have all records and files relating to the arrest" expunged if certain conditions are met. TEX. CODE CRIM. PROC. ANN. art. 55.01(a) (emphasis added). The statutory language contemplates expunging all of the records and all of the files related to the arrest. See id.; see also Ex parte Vega, 2016 WL 455327, at *5 (interpreting this portion of article 55.01(a) in the same manner); S.J. v. State, 438 S.W.3d 838, 843 (Tex. App.—Fort Worth 2014, no pet.) (same). The statute makes no provision for expunging only records related to a particular charge that resulted from an arrest. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a); see also Ex parte Vega, 2016 WL 455327, at *5; S.J., 438 S.W.3d at 843. "If the Legislature wished to permit persons to expunge records related to a particular charge resulting from an arrest without expunging all records of the arrest itself, we presume that it would have included language with that meaning in the statute." Ex parte Vega, 2016 WL 455327, at *5; see S.J., 438 S.W.3d at 843; see also Ex parte S.C., 305 S.W.3d 258, 263 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that an expunction order was overbroad because the Legislature did not include language allowing a person to expunge records "relating to the investigation" or "resulting in" or "contributing to" an arrest).
The expunction statute also provides for expunction of "all records and files relating to the arrest" if "the person has been released" and any charge "has not resulted in a final conviction and is no longer pending and there was no court-ordered community supervision . . . ." TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). The plain language of article 55.01(a)(2) bars expunction if any charge "relating to the arrest"—in this case, a refiled charge arising out of his arrest—resulted in a conviction or community supervision. Id. "The statute does not make the availability of expunction turn on whether a charge was filed following the arrest, but requires that 'the charge, if any' is not still pending and did not have certain results." Ex parte Vega, 2016 WL 455327, at *5 (quoting TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)); see S.J., 438 S.W.3d at 843.
Viewed as a whole, we conclude, as we did in Ex parte Vega, that article 55.01(a) is arrest based. See 2016 WL 455327, at *5. It only contemplates the expungement of all records and files relating to an arrest. See id. It does not contemplate the expungement of specific records and files relating to each individual charge or offense that resulted from an arrest. See id.
This interpretation is consistent with other portions of the expunction statute. Id.; see Ademaj, 243 S.W.3d at 621 (observing that we must interpret statutes as a whole and give effect to every part). For example, article 55.02 provides that when an expunction is granted, each official or agency named in the order shall either return expunged records to the court or, if return is impracticable, each official or agency shall obliterate all portions of the record or file that identify the "person who is the subject of the order." S.J., 438 S.W.3d at 844 (citing TEX. CODE CRIM. PROC. ANN. art. 55.02, § 5(a), (d)); see Ex parte Vega, 2016 WL 455327, at *5. Article 55.02 does not order the official or agency to obliterate all portions of the record or file that identify each individual charge that is subject to the order. S.J., 438 S.W.3d at 844 (citing TEX. CODE CRIM. PROC. ANN. art. 55.02, § 5(a), (d)); see Ex parte Vega, 2016 WL 455327, at *5. In other words, "[a]rticle 55.02 does not appear to allow for selective, content-based redaction or return of records within an arrest file relating to one out of multiple offenses." S.J., 438 S.W.3d at 844 (citing TEX. CODE CRIM. PROC. ANN. art. 55.02, § 5(a), (d)). "Such a standard could lead to inconsistent relief, as officials and agencies each containing expunged records could make varying determinations of what part of the records relate to the expunged offense as opposed to other offenses." Id. at 844 n.7; see Strayhorn, 209 S.W.3d at 87.
In addition, article 55.03 addresses the effect of an expunction order and provides that when expunction is ordered, the person arrested "may deny the occurrence of the arrest and the existence of the expunction order." TEX. CODE CRIM. PROC. ANN. art. 55.03(2); see Ex parte Vega, 2016 WL 455327, at *5; S.J., 438 S.W.3d at 844. This section, while expressly permitting a person who obtains an expunction order to deny that the arrest subject to the order occurred, does not contemplate a more narrow result—that a person may deny that a particular charge resulting from the arrest was filed. Ex parte Vega, 2016 WL 455327, at *5 (citing TEX. CODE CRIM. PROC. ANN. art. 55.03(2)); S.J., 438 S.W.3d at 844.
Further, article 55.04 provides for criminal prosecution of someone who acquires "knowledge of an arrest" through the person's work as an officer or employee of the state, knows of an order "expunging the records and files relating to that arrest," and knowingly "releases, disseminates, or otherwise uses the records or files" subject to the order. Ex parte Vega, 2016 WL 455327, at *5 (citing TEX. CODE CRIM. PROC. ANN. art. 55.04, § 1); S.J., 438 S.W.3d at 844. Article 55.04 makes no mention of the improper use of records and files relating to a particular charge or to only one out of multiple offenses. See Ex parte Vega, 2016 WL 455327, at *5; S.J., 438 S.W.3d at 844.
Finally, "[o]ur interpretation of the expunction statute is also consistent with its purpose." Ex parte Vega, 2016 WL 455327, at *5 n.4. The Texas Supreme Court reaffirmed that the purpose of the expunction statute is to eradicate records of wrongful arrests. In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). The Legislature designed the expunction statute "to protect wrongfully-accused people from inquiries about their arrests." Id. In this case, Davila pleaded guilty to unlawful restraint, a charge that resulted from the arrest at issue. It would be inconsistent with the Legislature's purpose in enacting the expunction statute to permit expunction of records of Davila's arrest when Davila pleaded guilty to unlawful restraint, thus, admitting that his arrest was not wrongful. See Ex parte Vega, 2016 WL 455327, at *5 n.4.
Considering the statute as a whole, reading each word and phrase in context, and interpreting the statute to give effect to every part, see Ademaj, 243 S.W.3d at 621, we cannot conclude that anything in the statutory language addresses expunction of records and files only from any individual charges resulting from an arrest. See In re M.N., 262 S.W.3d 799, 802 (Tex. 2008) (explaining that courts "presume the Legislature included each word in the statute for a purpose" and that "words not included were purposefully omitted"); Ex parte Vega, 2016 WL 455327, at *6 (concluding that the expunction statute is an arrest-based statute); G.B.E., 459 S.W.3d at 629-30 (employing the same reasoning and holding that no records of an arrest for driving while intoxicated could be expunged because the petitioner was convicted of the refiled charge of reckless driving); In re J.O., 353 S.W.3d 291, 294 (Tex. App.—El Paso 2011, no pet.) (holding that the petitioner was not entitled to an expunction because her conviction for disorderly conduct resulted from her arrest for possession of marijuana); see also Tex. Dep't of Pub. Safety v. K.J.H., No. 09-14-00042-CV, 2014 WL 4724441, at *2 (Tex. App.—Beaumont Sept. 4, 2014, no pet.) (mem. op.) (concluding that the petitioner was not entitled to an expunction of any records of her arrest for driving while intoxicated because she was convicted of the refiled charge of obstructing a highway). We reject any argument that expunction is available in this case because the statute contemplates expunction of individual charges rather than the related arrest. Instead, as we concluded in Ex parte Vega, "the expunction statute 'from top to bottom, appears to maintain an arrest as the unit of expunction and provides relief relating to arrests rather than charges.'" 2016 WL 455327, at *5 (quoting S.J., 438 S.W.3d at 843). "Interpreting article 55.01(a) in this manner is consistent with the text of article 55.01(a) and the expunction statute as a whole." Id. at *5; see Ademaj, 243 S.W.3d at 621.
4. Summary
Now, under this arrest-based statute, we conclude that error is apparent on the face of the record because the trial court concluded in its order that expunction of Davila's attempted-sexual-assault records and files was available under article 55.01(a)(2) even though Davila was unable to meet the condition that "the charge, if any, has not resulted in a final conviction." See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); Ex parte Vega, 2016 WL 455327, at *6. The Department has satisfied the fourth requirement of a restricted appeal. See TEX. R. APP. P. 30.
We sustain the Department's first issue. And having determined that the Department has established all requirements of a restricted appeal, we do not address the Department's second and third issues because the resolution of those issues is unnecessary to fully dispose of this appeal. See TEX. R. APP. P. 47.1.
III. CONCLUSION
We reverse the trial court's order and render judgment denying Davila's petition for expunction.
The Texas Supreme Court's holding in Ex parte Elliot provides that relief afforded by our judgment applies equally to all law enforcement agencies named in the expunction order whether or not they participated in this appeal. 815 S.W.2d 251, 251-52 (Tex. 1991) (per curiam) (holding that the reversal of an expunction order applies to all law enforcement agencies named in it even if those agencies did not appeal); Ex parte Vega, No. 13-15-00245-CV, 2016 WL 455327, at *6 n.5 (Tex. App.—Corpus Christi Feb. 4, 2016, no pet h.) (same); Tex. Dep't of Pub. Safety v. G.B.E., 459 S.W.3d 622, 631 (Tex. App.—Austin 2014, pet. denied) (en banc) (same). --------
NELDA V. RODRIGUEZ
Justice Delivered and filed the 18th day of February, 2016.