EX PARTE v. << (2020)

OPINION

Appellant S.T. brings this appeal from the denial of his petition for expunction. Appellant filed a pro se petition for expunction of records pursuant to article 55.01 of the Texas Code of Criminal Procedure. The trial court denied the petition in an order signed September 16, 2019 and Appellant timely appealed.

The People of Texas are statutorily “entitled to have all records and files relating to [their] arrest expunged” if they satisfy specific conditions. Tex. Code. Crim. P. art. 55.01 (a); see also Tex. Dep't of Pub. Safety v. G.B.E., 459 S.W.3d 622, 625 (Tex. App.—Austin 2014, pet. denied). Expunction proceedings are civil rather than criminal in nature, and the petitioner bears the burden of proving that all statutory requirements have been satisfied. Ex parte Cephus, 410 S.W.3d 416, 419 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Appellant was arrested for two charges and tried for neither; therefore, in order to be entitled to expunction, he was required to demonstrate (1) he was released; (2) the charge did not result in a final conviction; (3) the charge is no longer pending; (4) there was no court-ordered community service under Chapter 42A; and (5) the statute of limitations has expired. Compare id. at (a)(2) with id. at (a)(2)(B).¹

In his first issue, Appellant claims the records of his July 18, 2015 arrest for possession of drug paraphernalia, a Class C misdemeanor, should be expunged. The record before this court contains neither a petition to expunge that arrest nor an order ruling on such a petition.² Accordingly, that issue is not properly before us and we may not address it.

In his second issue, Appellant argues the trial court erred when it denied his petition to expunge his July 18, 2015 arrest for possession of less than two ounces of marijuana (a Class B misdemeanor). Appellant alleged he was entitled to expunction because he had been released, the charge had not resulted in a final conviction and was no longer pending, and there was no court-ordered community supervision under Article 42.12 of the Texas Code of Criminal Procedure. The record of the offense (provided by both Appellant and the State below) shows each of these facts is true and that there is no evidence to the contrary. The record also reveals Appellant was arrested on July 18, 2015. The statute of limitations for Appellant's Class B misdemeanor was two years (Tex. Crim. Proc. Code Ann. art. 12.02(a)) and this period had lapsed by the time he filed his petition for expunction on July 29, 2019. Therefore, Appellant affirmatively demonstrated his statutory entitlement to expunction under Texas Code of Criminal Procedure Chapter 55 and the trial court abused its discretion in denying Petitioner's request.

Appellant's second issue is sustained, the order of the trial court is reversed, and we remand this case to the trial court with the instruction to enter a judgment consistent with this opinion.

FOOTNOTES

1.   (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, provided that:* * *(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

2.   Appellant/Petitioner included a discussion about his Class C misdemeanor and argument that it was eligible for expunction in his “Objection to Respondent Texas Department of Public Safety Original Answer & General Denial”, but it was not included in his Petition for Expunction and was not properly presented to the trial court.

Meagan Hassan, Justice