I respectfully disagree with the majority's holding.
An individual arrested for either a felony or misdemeanor is entitled to have all records expunged if he (1) has been released, (2) the charge did not result in a final conviction, (3) there was no court-ordered community supervision for any offense other than a Class G misdemeanor, (4) the person has not been convicted of a felony in the five years preceding the date of arrest, and (5) the limitations period has expired. TEX. CODE CRIM. PROC. ANN. art. 55.01(a) (Vernon 2006); Inre J.H., 224 S.W.3d 260, 262 (Tex.App.-El Paso 2005, no pet.). Once an applicant who has been acquitted of criminal charges shows that he is eligible under the expunction statute, the trial court has no discretion to refuse the expunction. TEX. CODE CRIM. PROC. ANN. art. 55.01(a); Matter ofWilson, 932 S.W.2d 263, 266 (Tex.App.-El Paso 1996, no writ); Bargas v. State, 164 S.W.3d 763, 770 (Tex.App.-Corpus Christi 2005, no pet.).
Texas law has long established that even though a defendant is a minor, he may still legally enter a plea of guilty to a criminal charge. Ex parte White, 50 Tex.Crim. 473,474, 98 S.W. 850, 851 (1906). However, a contract made in violation of a statute is illegal. City of Denton v.Municipal Administrative Services, Inc., *Page 775 59 S.W.3d 764, 769 (Tex.App.-Fort Worth 2001, no pet.). Further, a court can refuse to enforce a contract or a contractual provision if it is against public policy and unconscionable.Hoover Slovacek, LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006). A contractual provision goes against public policy if it is illegal or inconsistent with the public's best interest. Montgomery v. Browder, 930 S.W.2d 772, 778 (Tex.App.-Amarillo 1996, writ denied).
Here, Appellee has satisfied all the requirements in his petition for and to receive an expunction of his arrest.See TEX. CODE GRIM. PROC. ANN. art. 55.01(a); In reJ.H., 224 S.W.3d at 262. However, the District Attorney for the 34th Judicial District has a policy requiring defendants, including Appellee, to waive their right to an expunction if they want to enroll in the Pre-Trial Diversion Program. I believe such a policy is inconsistent with the public's best interest because it affects the statutory right to an expunction of not only adults, but also minors. SeeMontgomery, 930 S.W.2d at 778. As such, the trial court correctly refused to enforce the waiver of Appellee's expunction right that constituted part of his pre-trial diversion agreement. See generally Walton,206 S.W.3d at 562. This does not render Appellee's entire pre-trial diversion agreement void, however, because a minor may properly enter a guilty plea. See generally Ex parte White,50 Tex.Crim. at 474, 98 S.W. at 851.
Texas courts have held that contracts entered into by a minor who has not been emancipated are not binding on the minor if he chooses to disallow those contracts. See Swain v. WileyCollege, 74 S.W.3d 143, 146-47 (Tex.App.-Texarkana 2002, no pet.). The contract of a minor whose disability has not been judicially removed is not void but only voidable at the minor's choice. Pioneer Casualty Company v. Bush,457 S.W.2d 165, 168 (Tex.Civ.App.-Tyler 1970, writ ref d n.r.e.).
In the instant case, Appellee entered into the pre-trial diversion agreement with the State when he was seventeen years old, and so his minority disability was still intact at that time. As such, the waiver of his statutory right to an expunction is voidable, and he has the option to disallow it.See Swain, 74 S.W.3d at 146-47; Bush,457 S.W.2d at 168. By filing his Original Petition for Expunction, Appellee has exercised his option to disallow the waiver and rightfully seek his right to an expunction.
Finally, the local District Attorney policy requirement that a minor defendant waive his right to an expunction in order to enroll in the Pre-Trial Diversion program seems to contradict the legislative intent behind the expunction statutes. The right to an expunction is statutory in nature, and the legislature could not have intended for an individual to give up such a right by agreeing to enter into a deferred adjudication program when the individual is a minor.See TEX. CODE CRIM. PROC. ANN. art. 55.01(a).
For the foregoing reasons, I respectfully dissent.