NUMBER 13-16-00534-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
Ex parte J.C.D.
On appeal from the 85th District Court of
Brazos County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Longoria and Hinojosa
Memorandum Opinion by Justice Longoria
Appellant, the Texas Department of Public Safety (“the Department”), argues on
appeal that the trial court erred by granting appellee J.C.D.’s petition for expunction. We
reverse and render.
I. BACKGROUND1
On November 14, 2006, J.C.D. was arrested for robbery and was later charged by
indictment with both robbery and assault causing bodily injury. See TEX. PENAL CODE
ANN. §§ 22.01, 29.02 (West, Westlaw through Chapter 49, 2017 R.S.). Pursuant to a plea
agreement, the robbery charge was dismissed, and J.C.D. pleaded guilty to the assault
charge and was sentenced to two years deferred adjudication community supervision.
On February 8, 2016, J.C.D. filed his first amended petition to expunge the records
of his arrest for robbery. In response, the Department filed an answer denying that J.C.D.
was entitled to an expunction of the arrest because he served a term of community
supervision for the arrest. The trial court signed an order granting the expunction on
March 11, 2016. The Department then filed this restricted appeal.
II. STANDARD OF REVIEW
Although expunction proceedings are typically reviewed under an abuse of
discretion standard, when the trial court’s ruling turns on a question of law, it is reviewed
de novo. See Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 678 (Tex. App.—Austin
2010, no pet.); see also Ex parte T.C., No. 12-13-00138-CV, 2014 WL 4104806, at *3
(Tex. App.—Tyler Aug. 20, 2014, no pet.) (mem. op.). Under this standard, we conduct
an independent analysis of the record, giving no deference to the trial court’s conclusions.
See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998). Statutory construction is also
a question of law that requires de novo review. McIntyre v. Ramirez, 109 S.W.3d 741,
745 (Tex. 2003).
1This case is before this Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001
(West, Westlaw through Chapter 49, 2017 R.S.).
2
III. DISCUSSION
On appeal, the Department argues that the trial court improperly expunged
J.C.D.’s record of arrest. Specifically, the Department argues that: (1) the trial court
misinterpreted the expungement statute; (2) J.C.D. failed to present legally sufficient
evidence that he was entitled to expunction; and (3) the trial court failed to hold a hearing.
We agree with the Department.
A. Restricted Appeal
To prevail on a restricted appeal, a party must show: (1) it filed notice of appeal
within six months after the judgment was signed; (2) it was a party to the underlying action;
(3) it did not participate in the hearing that resulted in the judgment complained of 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. TEX. R. APP. P. 26.1(c), 30;
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).
The Department filed its notice of restricted appeal on September 9, 2016, which
was less than six months after the order was signed on March 11, 2016. Thus, the
Department timely filed its notice of appeal. See TEX. R. APP. P. 26.1(c). The Department
was a party to the case and filed an answer, but it did not participate in the hearing that
resulted in the judgment complained of or file any post-judgment motions. See Alexander,
134 S.W.3d at 848. Therefore, the only remaining question is whether error is apparent
on the face of the record. See id.
B. The Expunction Statute
It is constitutionally presumed that judicial records are open to the public. See,
e.g., Nixon v. Warner Commc’n, Inc., 435 U.S. 589, 597 (1978); Dallas Morning News v.
3
Fifth Court of Appeals, 842 S.W.2d 655, 663 (Tex. 1992). The expunction statute
provides a narrow exception to this principle and is intended to eradicate records of
wrongful arrests. In re State Bar, 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding).
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 (West, Westlaw through Chapter 49, 2017 R.S.). Under
Article 55.01:
(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:
...
(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 Chapter 42A for the
offense, unless the offense is a Class C misdemeanor . . . .
Id. at art. 55.01(a)(2) (emphasis added). “[F]or a petitioner to be entitled to expunction
under article 55.01, all charges arising from the arrest must meet that article’s
requirements.” S.J. v. State, 438 S.W.3d 838, 845 (Tex. App.—Fort Worth 2014, no pet.)
(emphasis added). In other words, “individual charges within an arrest” are not subject
to expunction; an arrest can only be expunged if every offense arising from that arrest
meets the requirements of article 55.01. Id.; see Ex Parte Vega, 510 S.W.3d 544, 548
(Tex. App.—Corpus Christi 2016, no pet.); Travis County Dist. Atty. v. M.M., 354 S.W.3d
920, 927 (Tex. App.—Austin 2011, no pet.); see also Ex parte M.R.L., No. 10–11–00275–
CV, 2012 WL 763139, at *3 (Tex. App.—Waco Mar. 7, 2012, pet. denied) (mem. op.)
(rejecting a party’s argument that “the expunction statute should apply to each charge or
offense for which a person is arrested separately”).
4
It is undisputed that the robbery charge in the present case was dismissed and
resulted in no final conviction. However, it is also undisputed that J.C.D. pled guilty to the
offense of assault causing bodily injury, which arose out of the same arrest, and he was
placed on two years deferred adjudication community supervision. J.C.D. seeks to
expunge records of his robbery charge, but the unit of expunction is the entire arrest, not
the individual robbery charge. See S.J., 438 S.W.3d at 845; Ex Parte Vega, 510 S.W.3d
at 551. Because J.C.D.’s arrest resulted in court-ordered community supervision,
expunction is not available. See id. The trial court’s error in expunging J.C.D.’s arrest
record is apparent on the face of the record. See Alexander, 134 S.W.3d at 848. We
sustain the Department’s first issue. Because we agree with the Department on its first
issue, we need not reach its subsequent issues. See TEX. R. APP. P. 47.1.
V. CONCLUSION
We reverse the trial court’s order, and render judgment denying J.C.D.’s petition
for expunction.2
NORA L. LONGORIA
Justice
Delivered and filed the
3rd day of August, 2017.
2 We note that the Texas Supreme Court's holding in Ex parte Elliot provides that the 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).
5