Opinion filed December 16, 2021
In The
Eleventh Court of Appeals
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No. 11-20-00048-CV
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IN THE MATTER OF THE EXPUNCTION OF A.L.
On Appeal from the 441st District Court
Midland County, Texas
Trial Court Cause No. CV56100
MEMORAND UM OPI NI ON
Appellant, A.L., sought an expunction of all criminal records and files related
to her arrest for the offense of aggravated assault with a deadly weapon, family
violence. In two issues, Appellant asserts that the trial court erred when it denied
her petition for expunction. We reverse.
I. Factual Background
In 2018, the State charged Appellant with the felony offense of aggravated
assault with a deadly weapon, family violence. In accordance with the terms of her
negotiated plea bargain agreement with the State, Appellant was assigned to a
pretrial diversion (PTD) program for a period of nine months. Her felony charge
was later dismissed after Appellant successfully completed the PTD program.
Appellant subsequently filed her petition for expunction. At her expunction
hearing, Appellant testified that she had completed and satisfied all requirements of
the PTD program, that the felony charge for which she was arrested did not result in
a final conviction, and that there was no case pending against her. During its cross-
examination, the State attempted to question Appellant about a condition of the plea
bargain agreement, in which Appellant had allegedly waived her right to seek an
expunction of the felony charge and all matters related to it. Her trial counsel
objected to the State’s inquiry on the grounds that the State had failed to plead and
allege the affirmative defense of waiver prior to the hearing. Nevertheless, the trial
court overruled Appellant’s objection, admitted the State’s proffered evidence, and
ultimately denied her petition for expunction.
Appellant raises two issues on appeal; because the issues are intertwined, we
will consider them together. Essentially, Appellant contends that the trial court
abused its discretion when it denied her petition for expunction because (1) she had
satisfied all of the statutory requirements to obtain an expunction of the charged
offense and all related matters and (2) it based its decision on the evidence presented
by the State that pertained only to the State’s unpleaded affirmative defense of
waiver.
II. Standards of Review
We review a trial court’s ruling on a petition for expunction under an abuse of
discretion standard. Ex parte R.P.G.P., 623 S.W.3d 313, 317 (Tex. 2021). However,
to the extent that the trial court’s ruling depends on a question of law, we review the
ruling de novo. Ex parte E.H., 602 S.W.3d 486, 489 (Tex. 2020) (“[A] trial court
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has no ‘discretion’ in determining what the law is or applying the law to the facts.”
(quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
Further, we review a trial court’s decision to admit or exclude evidence for
abuse of discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220
(Tex. 2001).
III. Analysis
Article 55.01 of the Code of Criminal Procedure governs an individual’s right
to an expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2021).
In relevant part, a person who has been arrested for the commission of a felony
offense is entitled to have all records and files relating to the arrest expunged if:
(1) the person has been released; (2) the charge, if any, has not resulted in a final
conviction and is no longer pending; (3) there was no court-ordered community
supervision for the offense; (4) an indictment charging the person with the
commission of any felony offense arising out of the same transaction for which the
person was arrested, if presented at any time following the arrest, was dismissed or
quashed; and (5) the trial court finds that the indictment was dismissed or
quashed because the person completed a pretrial intervention program. Id.
§ 55.01(a)(2)(A)(ii)(c). Here, there is no dispute that Appellant satisfied all of the
statutory requirements to obtain an expunction of the records, files, and other
relevant information that was related to her arrest for the charged offense.
The record before us shows that (1) Appellant had been released from the
charged offense; (2) the charged offense did not result in a final conviction and was
no longer pending; (3) Appellant had not been placed on community supervision for
the charged offense; (4) the indictment for the charged offense had been dismissed;
and (5) the charged offense was dismissed because the trial court found that
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Appellant had successfully completed her PTD program. As we have said, the State
does not dispute that Appellant proved her entitlement to an expunction under
Article 55.01. Rather, the State maintains that the trial court properly admitted and
considered the evidence presented by the State concerning Appellant’s alleged
waiver of her right to seek an expunction. We disagree.
Although the expunction statute is codified in the code of criminal procedure,
one’s entitlement to an expunction is clearly a civil remedy. Ex parte R.P.G.P., 623
S.W.3d at 316 (citing Ex parte E.H., 602 S.W.3d at 489). Therefore, because an
expunction proceeding is civil in nature, the rules of civil procedure apply to and
govern expunction hearings. Carson v. State, 65 S.W.3d 774, 784 (Tex. App.—Fort
Worth 2001, no pet.).
Under Rule 94, waiver is an affirmative defense that must be specifically
pleaded. TEX. R. CIV. P. 94. Thus, if a party fails to plead and allege the affirmative
defense of waiver, that party is precluded from relying on or asserting the waiver
defense at trial. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223
(Tex. 1992); Security Self Storage LLC v. Pauling, No. 11-09-00103-CV, 2010 WL
3170670, at *2 (Tex. App.—Eastland Aug. 12, 2010, no pet.) (mem. op.) (citing
Bracton Corp. v. Evans Constr. Co., 784 S.W.2d 708, 710 (Tex. App.—Houston
[14th Dist.] 1990, no pet.)). In this case, the State did not file any pleadings in
response to Appellant’s petition for expunction. As such, the State failed to properly
raise the affirmative defense of waiver prior to the commencement of the expunction
hearing. Despite its failure to plead or assert the affirmative defense of waiver in
advance of the hearing, as a defense to Appellant’s expunction request the State
nonetheless presented evidence, which the trial court admitted, that Appellant had
allegedly waived her entitlement to an expunction. In fact, over the objections
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asserted by Appellant’s trial counsel, the trial court permitted the State to question
Appellant about the substance of the plea agreement in which she purportedly
waived her right to seek and obtain an expunction of the charged offense and other
related matters.
In light of the State’s failure to comply with the pleading requirements of
Rule 94, it was prohibited from relying on or asserting a waiver defense at trial.
Therefore, the trial court should have neither admitted nor considered the evidence
presented by the State in support of this defense. Because it did in both respects, we
hold that the trial court abused its discretion when it (1) permitted the State to
develop an unpleaded and unasserted waiver defense to Appellant’s expunction
request and (2) admitted the evidence offered by the State on that issue.
Moreover, in its findings of fact and conclusions of law, the trial court recited
and referred to language from the parties’ plea agreement and found that Appellant
had waived her right to an expunction. However, unlike the waiver evidence
discussed above, the plea agreement was neither offered by the State nor admitted
into evidence by the trial court. Therefore, because the plea agreement is not a part
of or included in the appellate record, it is not before us and cannot support the trial
court’s finding.
The State concedes that the trial court’s decision to admit the evidence that
Appellant had allegedly waived her right to an expunction contributed to the trial
court’s judgment. We agree that the trial court’s erroneous admission of this
evidence probably caused the rendition of an improper judgment. See TEX. R.
APP. P. 44.1(a)(1). This is particularly true when, as in this case, the erroneously
admitted evidence was pertinent to a crucial issue in the case. See Reliance Steel &
Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008); Nissan Motor Co. v.
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Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). Here, Appellant conclusively proved
her entitlement to an expunction of the charged offense and all records, filings, and
other information related to it. The record before us does not contain any admissible
evidence to the contrary. Consequently, we hold that the trial court abused its
discretion when it denied Appellant’s petition for expunction.
IV. This Court’s Ruling
We sustain Appellant’s first and second issues on appeal. Accordingly, we
reverse the order of the trial court and remand this cause to the trial court with
instructions to grant Appellant’s petition for expunction.
W. STACY TROTTER
JUSTICE
December 16, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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