Reversed and Rendered, and Opinion Filed March 28, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00525-CV
TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
JORDAN FOSTER, Appellee
On Appeal from the 354th Judicial District Court
Hunt County, Texas
Trial Court Cause No. 76,266
OPINION
Before Justices Moseley, Francis, and Lang
Opinion by Justice Lang
The Texas Department of Public Safety (DPS) brings a restricted appeal of the district
court’s order of expunction granting Jordan Foster’s petition for expunction as to the
misdemeanor offense of assault causing bodily injury and the felony offense of aggravated
sexual assault of a child younger than fourteen years of age. Foster did not file a brief on appeal.
DPS raises three issues arguing the district court erred when it granted Foster’s petition for
expunction because: (1) Foster was not entitled to an expunction of the misdemeanor offense of
assault causing bodily injury because he served a term of deferred adjudication as a result of that
arrest; (2) Foster was not entitled to an expunction of the felony aggravated sexual assault of a
child offense because he served a term of deferred adjudication as a result of that arrest; and (3)
Foster was not entitled to an expunction of the felony aggravated sexual assault of a child offense
because he did not prove (a) the indictment was dismissed for a statutorily authorized reason or
(b) the statute of limitations had expired.
We conclude the district court erred when it granted Foster’s petition for expunction.
The district court’s order of expunction is reversed and an order denying Foster’s petition for
expunction is rendered.
I. FACTUAL AND PROCEDURAL BACKGROUND
Foster was indicted for the felony offense of aggravated sexual assault of a child younger
than fourteen years of age in cause number 23,241. The State filed a motion to dismiss this
cause in the district court. The preprinted motion to dismiss lists possible reasons for the
dismissal. The boxes next to these statements in the motion were checked: “The defendant was
convicted in another cause” and “Other.” In the space provided after the preprinted statement
“and for cause would show the Court the following” the State inserted “Case has been refilled.
[Foster] plead[ed] to CR0602268, Hunt County Court at Law.” The district court granted the
State’s motion to dismiss.
On the same day the State filed its motion to dismiss the felony charge, Foster was
charged by information for the misdemeanor offense of assault causing bodily injury to another
in the county court at law in cause number 0602268. Foster pleaded nolo contendre to the
offense. The county court deferred Foster’s adjudication and ordered that he be placed on
community supervision for twenty-four months. After Foster completed his community
supervision, the county court signed an order of non-disclosure in cause number "CR0602268."
Then, Foster filed a petition for expunction in the district court. The petition requested
expunction of all records and files relating to the felony offense of aggravated sexual assault of a
child in cause number 23,241. In his verified petition, Foster claimed that he was
[E]ntitled to an expunction of all records and files relating to said alleged offense
of Aggravated Sexual Assault of a Child [u]nder Article 55.01(a)(2) of the Texas
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Code of Criminal Procedure, because no indictment or information was presented
against [him] for said offense arising out of the transaction for which [he] was
arrested. [Foster] further states that [he] has been released, that the charge has not
resulted in a final conviction and is no longer pending, and that there was no
court-ordered community supervision under Article 42.12 of the Texas Code of
Criminal Procedure nor a conditional discharge under Section 481.109 of the
Texas Health and Safety Code.
DPS filed an answer generally denying Foster’s claim and asserted an affirmative defense,
contending “Foster is not entitled to expunge his arrest and indictment for Aggravated Sexual
Assault of a Child because his arrest did not result in an indictment or information which was
dismissed for a reason that indicated there is a lack of probable cause to believe he committed
the offenses.” A hearing was held on Foster’s petition for expunction. The State appeared at the
hearing, but DPS did not. Further, at the hearing, Foster did not present any testimony or other
evidence. After the hearing, the district court signed an order that granted Foster’s petition for
expunction with respect to the offense of "Assault Causing Bodily Injury," cause number
"23,241," in the "354th Judicial District Court." The order lists the expunged offense as assault
causing bodily injury that was before the county court at law, but lists the cause number and
court associated with the offense of aggravated sexual assault of a child younger than fourteen
years of age that was before the district court. In the order, the district court found that “Foster is
entitled to expunction as provided by Article 55.01(a)(2). Texas Code of Criminal Procedure.”
The record on appeal does not contain any findings by the district court with regard to the reason
for the dismissal of the felony aggravated sexual assault of a child charge.
Noting the conflict between the offenses identified and the cause numbers on the district
court’s order of expunction, DPS appealed the order of expunction, arguing error as to assault
causing bodily injury, aggravated sexual assault of a child younger than fourteen years of age, or
both. This Court ordered the district court to make findings of fact as to the specific cause
number and offense it expunged, and abated the appeal. The district court made findings of fact
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stating that the records Foster sought to have expunged pertained to the aggravated sexual assault
of a child charge, the order of expunction incorrectly expunges the misdemeanor charge to which
Foster pleaded guilty before the county court at law, and the only records the district court had
the authority to expunge were those pertaining to the aggravated sexual assault of a child. Then,
this Court reinstated the appeal.
II. RESTRICTED APPEAL OF EXPUNCTION ORDER
Initially, we must address whether DPS may complain of the expunction order in a
restricted appeal. All law enforcement agencies that may have records a petitioner wants
expunged are entitled to be represented by counsel at an expunction hearing. TEX. CODE CRIM.
PROC. ANN. art. 55.02, § 2(c-1) (West Supp. 2012); Tex. Dep’t of Pub. Safety v. Jacobs, 250
S.W.3d 209, 210 (Tex. App.—Dallas 2008, no pet.). To successfully attack an order by
restricted appeal, the appealing party must show it was (1) a party who did not participate either
in person or through counsel in the hearing that resulted in the judgment complained of, (2) it
filed a notice of appeal within six months after the order was signed, and (3) error is apparent on
the face of the record. TEX. R. APP. P. 26.1(c), 30; Jacobs, 250 S.W.3d at 210. An agency
protesting an expunction order may appeal the judge’s decision in the same manner as in other
civil cases. TEX. CODE CRIM. PROC. ANN. art. 55.02, § 3(a) (West Supp. 2012); Jacobs, 250
S.W.3d at 210.
As a state agency that has records subject to expunction, DPS is a party to the suit within
the meaning of the requirements of a restricted appeal. Jacobs, 250 S.W.3d at 210. The petition
for expunction was filed on December 14, 2010. The record contains a return receipt showing
DPS was served with a copy of the petition for expunction on December 20, 2010. On February
14, 2011, DPS filed an answer and asserted its affirmative defense. However, DPS did not
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participate in person or through counsel in the expunction hearing. Accordingly, DPS meets the
first requirement for raising a restricted appeal. Jacobs, 250 S.W.3d at 210.
The order of expunction was signed by the district court on December 2, 2011. DPS filed
its notice of restricted appeal on April 18, 2012, within the six-month deadline contemplated in
rule 26.1(c). Because DPS timely filed its notice of restricted appeal, it meets the second
requirement for raising a restricted appeal. Jacobs, 250 S.W.3d at 210. Accordingly, we next
turn to whether error is apparent on the face of the record.
III. STANDARD OF REVIEW
In a restricted appeal, an appellate court is limited to considering only the face of the
record, but its scope of review is otherwise the same as that in an ordinary appeal. Jacobs, 250
S.W.3d at 210. Accordingly, an appellate court reviews the entire case. Jacobs, 250 S.W.3d at
210. In a restricted appeal, the face of the record consists of all papers on file in the appeal,
including the reporter’s record. Jacobs, 250 S.W.3d at 210. An appellate court’s review of the
entire case encompasses the review of the insufficiency claims. See Jacobs, 250 S.W.3d at 210.
IV. ASSAULT CAUSING BODILY INJURY
In issue one, DPS argues the district court erred when it granted Foster’s petition for
expunction as to the misdemeanor offense of assault causing bodily injury because Foster served
a term of deferred adjudication as a result of that arrest. The district court’s subsequent findings
of fact state that “The Order of Expunction incorrectly expunges the misdemeanor charge to
which [Foster] pled guilty (Assault Causing Bodily Injury).” Accordingly, we conclude the
district court erred when it expunged all records and files relating to Foster’s arrest for
misdemeanor assault causing bodily injury in cause no. 0602268.
Issue one is decided in favor of DPS.
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V. AGGRAVATED SEXUAL ASSAULT OF CHILD
In issue three, DPS argues the district court erred when it granted Foster’s petition for
expunction as to the felony offense of aggravated sexual assault of a child younger than fourteen
years of age because Foster did not prove (a) the indictment was dismissed for a statutorily
authorized reason or (b) the statute of limitations had expired.
A. Applicable Law
Expunction is a statutory privilege and the petitioner must prove that all statutory
requirements have been satisfied. Texas Dept. of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806
(Tex. App.—Houston [14th Dist.] 2008, no pet.). Pursuant to article 55.01(a)(2), a person who
has been placed under 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) 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, unless the offense is a
Class C misdemeanor, provided that:
(A) regardless of whether any statute of limitations exists for the
offense and whether any limitations period for the offense has expired, an
indictment or information charging the person with the commission of a
misdemeanor offense based on the person’s arrest or charging the person
with the commission of any felony offense out of the same transaction for
which the person was arrested:
(ii) if presented at any time following the arrest, was dismissed
or quashed, and the court finds that the indictment or information
was dismissed or quashed because the person completed a pretrial
intervention program authorized under Section 76.011,
Government Code, or because the presentment had been made
because of mistake, false information, or other similar reason
indicating absence of probable cause at the time of the dismissal to
believe the person committed the offense, or because the
indictment or information was void; or
TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(A)(ii) (West Supp. 2012).
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B. Application of the Law to the Facts
To be entitled to expunction under the facts of this case, Foster had to establish
that (1) he had been released and the charge, if any, had not resulted in a final conviction
and was no longer pending, (2) there was no court-ordered community supervision under
article 42.12 for the offense, (3) an indictment or information charging him with the
commission of any felony offense arising out the same transaction for which he was
arrested, if presented, was dismissed or quashed, and (4) the court found that the
indictment or information was dismissed or quashed because of mistake, false
information, or some other reason indicating absence of probable cause at the time of the
dismissal to believe he committed the offense. See TEX. CODE CRIM. PROC. ANN. art.
55.01(a)(2)(A)(ii).
Initially, we note that in his verified petition for expunction, Foster alleged that
“no indictment or information was presented against [him]” for the felony offense of
aggravated sexual assault of a child. However, the record contains an indictment against
Foster for the felony offense of aggravated sexual assault of a child younger than fourteen
years of age, as well as the State’s motion to dismiss and an order granting that motion.
Next, a review of the record shows that in its motion to dismiss, the State checked
boxes on a preprinted form that identified it was seeking dismissal of the aggravated
sexual assault of a child younger than fourteen years of age charge because “The
defendant was convicted in another cause” and “Other”. Further, the State indicated in
the motion the “Case has been refiled. [Foster] plead[ed] to CR0602268, Hunt County
Court at Law.” The district court granted the State’s motion to dismiss. There is nothing
in the record on appeal showing the district court made any findings with regard to the
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reason for the dismissal of the felony aggravated sexual assault of a child offense when it
granted the State’s motion to dismiss.
At the hearing on his petition for expunction, Foster did not present any testimony
or other evidence demonstrating he proved all of the statutory requirements for
expunction. See Jacobs, 250 S.W.3d at 211 (“To be entitled to expunction, the person
seeking relief must establish that each of the following conditions exists . . .”); J.H.J., 274
S.W.3d at 860 (expunction statutory privilege and petitioner must prove all statutory
requirements have been satisfied). Further, there is nothing in the record on appeal
showing the district court made any findings with regard to the reason for the dismissal of
the felony aggravated sexual assault of a child offense when it granted the Foster’s
petition for expunction.
Accordingly, we conclude the district court erred when it expunged all records
and files relating to Foster’s arrest for felony aggravated sexual assault of a child younger
than fourteen years of age in cause no. 23,241. The first part of issue three is decided in
favor of DPS. Based on our resolution of the first part of issue three, we need not address
the second part of issue three or issue two.
VI. CONCLUSION
The district court erred when it granted Foster’s petition for expunction.
We reverse the district court’s order of expunction and render an order denying Foster’s
petition for expunction.
/Douglas S. Lang/
120525F.P05 DOUGLAS S. LANG
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TEXAS DEPARTMENT OF PUBLIC On Appeal from the 354th Judicial District
SAFETY, Appellant Court, Hunt County, Texas
Trial Court Cause No. 76,266.
No. 05-12-00525-CV V. Opinion delivered by Justice Lang. Justices
Moseley and Francis participating.
JORDAN FOSTER, Appellee
In accordance with this Court’s opinion of this date, the trial court’s order of expunction
is REVERSED and an order denying appellee JORDAN FOSTER’S petition for expunction is
RENDERED.
It is ORDERED that appellant TEXAS DEPARTMENT OF PUBLIC SAFETY recover
its costs of this appeal from appellee JORDAN FOSTER.
Judgment entered this 28th day of March, 2013.
/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE