EX PARTE DAVID YOUNG CHUNG v. <<

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Court of Appeals of Texas, Dallas.

EX PARTE DAVID YOUNG CHUNG

No. 05-15-01477-CV

Decided: March 30, 2017

Before Chief Justice Wright, Justice Lang-Miers, and Justice Myers

MEMORANDUM OPINION

Appellant David Young Chung appeals denial of his petition to expunge his conviction for burglary of a habitation. In one issue, he argues that, because the trial court granted him judicial clemency under article 42.12 of the code of criminal procedure removing all penalties and disabilities, the trial court should have also granted his petition to expunge his conviction under article 55.01 of the code of criminal procedure because his criminal record is a penalty or disability. We affirm.

BACKGROUND

In March 1999, appellant pleaded guilty pursuant to a plea bargain agreement to the offense of burglary of a habitation. The court deferred adjudication of guilt and placed him on community supervision for three years. In December 1999, the State filed an amended motion to proceed with adjudication of guilt against him alleging that he had violated conditions of his probation. He pleaded true to the allegations in the amended motion and went “open” to the court for punishment. The trial court adjudicated him guilty and sentenced him to ten years' imprisonment but suspended the sentence and placed him on community supervision for ten years. As a condition of his community supervision, the trial court ordered him to serve in a substance abuse felony punishment facility (SAFPF) for 365 days. He completed the SAFPF program.

In April 2006, he moved for early release from community supervision and the trial court entered an “ORDER SETTING ASIDE JUDG[ ]MENT OF CONVICTION [,] DISMISSING THE INDICTMENT[,] AND DISCHARGING DEFENDANT FROM PROBATION [.]” The order stated “that the [j]udg[ ]ment of Conviction heretofore entered against the Defendant in this case be and the same is hereby set aside, the indictment dismissed, and the Defendant discharged from said probation, and the Defendant is hereby released from all penalties and disabilities resulting from the Judg[ ]ment of Conviction in this cause.”

In November 2014, he filed a petition requesting expunction of the records and files concerning his arrest for burglary of a habitation. After a hearing in November 2015, the trial court denied the petition. The trial court then entered findings of fact and conclusions of law. The trial court concluded that he “did receive judicial clemency from the 363rd District Court and that court's exercise of clemency was authorized by Article 42.12, § 20 (a).” It also concluded “that under the terms of art. 55.01 (a) (2), as interpreted by the courts of appeals, Petitioner is not entitled to an expunction.” The court concluded that it was “in sympathy with the arguments raised by Petitioner and may well have ruled in Petitioner's favor if the Court believed this was an open question.” But the court concluded that it believed it was “constrained to rule in accord with the court of appeals cases” “Perdue v. Texas Department of Public Safety, 32 S.W.3d 333, 335 (Tex. App.—San Antonio 2000, no pet.)[,] Tex. Dept. of Public Safety v. J.H.J., 274 S.W.3d 803 (Tex. App.—Houston [14th Dist.] 2008, no pet.), and Moore v. Dallas County Dist. Atty's Office, 670 S.W.2d 727 (Tex. App.—Dallas 1984, no writ).” He filed this appeal.

STANDARD OF REVIEW AND APPLICABLE LAW

Expunction is a statutorily-created remedy that allows a person who has been arrested for the commission of an offense to have the records and files relating to the arrest expunged if the person meets the statutory requirements of article 55.01 of the code of criminal procedure. Collin Cty. Dist. Attorney's Office v. Fourrier, 453 S.W.3d 536, 538 (Tex. App.—Dallas 2014, no pet.). Because the cause of action is created by statute, all of its provisions are mandatory and exclusive and require strict compliance for the action to be sustained. Id. at 539. The trial court has no equitable power to extend the protections of the expunction statute beyond the statute's stated provisions. Id. The expunction statute appears in the code of criminal procedure but an expunction proceeding is civil in nature. Id. The petitioner carries the burden of proving compliance with the statutory requirements. Id.

We review a trial court's ruling on a petition for expunction for an abuse of discretion. Id. But to the extent a ruling on expunction turns on a question of law, we review the ruling de novo because a trial court has no discretion in determining what the law is or applying the law to the facts. Id. “A trial court abuses its discretion if it orders an expunction of records despite a petitioner's failure to satisfy all of the statutory requirements.” Id. (quoting In re O.R.T., 414 S.W.3d 330, 332 (Tex. App.—El Paso 2013, no pet.)). “Thus, regardless of the focus of the parties' briefs,” if appellant “fails to satisfy any of the requisites of the expunction statute, [he] is not entitled to expunction as a matter of law.” Id. (quoting Travis Cty. Dist. Atty. v. M.M., 354 S.W.3d 920, 927 (Tex. App.—Austin 2011, no pet.) (en banc) (op. on reh'g)). And courts have held that court-ordered community supervision precludes expunction. See Tex. Dept. of Public Safety v. Jacobs, 250 S.W.3d 209, 211 (Tex. App.—Dallas 2008, no pet.) (concluding “record establishe[d] Jacobs was not entitled to expunction because the court ordered ‘community supervision’ under article 42.12”); J.H.J., 274 S.W.3d at 809 (stating “one who receives community supervision is not eligible for expunction, regardless of the type of section 20(a) discharge he receives”); Perdue, 32 S.W.3d at 335 (concluding Perdue not entitled to expunction because he was placed on court-ordered community supervision as a result of the arrest he sought to expunge).

ARGUMENTS OF THE PARTIES

Appellant received judicial clemency under article 42.12, section 20(a) of the code of criminal procedure that removed “all penalties and disabilities resulting from” his conviction for burglary of a habitation.1 He argues that the trial court should have also granted his petition for expunction of the conviction because the conviction is a penalty or disability. He contends that, although “judicial clemency is not an explicit ground for expunction under Article 55.01” of the code of criminal procedure, article 42.12 and article 55.01 should “be harmonized to permit expunction where the trial court grants judicial clemency[.]”

Appellee 2 contends that appellant is not entitled to expunction under article 55.01 because the court placed him on community supervision and, under article 55.01, a party placed on community supervision does not qualify for expunction. Appellee argues that appellant's argument for “harmonization” of article 42.12, section 20 and article 55.01 “actually asks this Court to hold that 42.12, section 20 trumps the requirements of article 55.01 and independently creates a separate right to expunction.” Appellee also argues that construing article 42.12, section 20 as creating a right to expunction under article 55.01 brings the two statutes into “irreconcilable conflict” because article 42.12, section 20 requires retention of records and files in certain circumstances and article 55.01 requires destruction of records and files.

ANALYSIS

We agree with appellee that, although appellant received judicial clemency under article 42.12, section 20, he is not entitled to expunction under article 55.01 because not all statutory requirements of article 55.01 have been satisfied. See Fourrier, 453 S.W.3d at 539 (stating all provisions of article 55.01 are mandatory and exclusive and require strict compliance). Article 55.01(a)(2) states that a person “is entitled to have all records and files relating to the arrest expunged if ․ there was no court-ordered community supervision under Article 42.12 for the offense [.]”3 As he admitted during the hearing, in March 1999, the trial court placed him on deferred adjudication community supervision for three years. In addition, in his petition for expunction, appellant stated that, in February 2000, the trial court placed him “on a 10 year commun[ ]ity supervision pursuant to Article 42.12, Section 14(c[ ] ) of the Code of Criminal Procedure[.]”4 Consequently, appellant has not satisfied the statutory requirements for expunction under article 55.01 because the trial court placed appellant on community supervision under article 42.12.5

Additionally, in Moore, 670 S.W.2d at 728, this Court affirmed the trial court's refusal to expunge because we concluded that the appellant failed to satisfy all the statutory requirements for expunction under article 55.01. Moore argued—as appellant does here—that the trial court's refusal to expunge the records of his conviction violated the trial court's order that appellant be released from all penalties and disabilities because “the continued existence of these records is a penalty and disability.” Id. We stated that “Article 55.01 sets forth a number of conditions which must exist before there is right to expunction, including a requirement that ‘there was no court ordered supervision under Article 42.13 Code of Criminal Procedure.’ ”6

Appellant does not address the Moore case. He argues, however, that the conclusion in J.H.J. by the Houston Fourteenth Court of Appeals that the requirement to retain records under article 42.12, section 20(a) “preclude [s]” expunction in judicial clemency cases is incorrect. He focuses his argument on the requirement under article 42.12 that—if after a judge discharges a defendant from community supervision and releases the defendant from all penalties and disabilities from an offense or crime, “the defendant [should] again be convicted of any criminal offense”—“proof of the conviction or plea of guilty shall be made known to the judge.”7 He contends that “[d]estruction of the criminal records would not prevent the conviction from being noted should the specific need arise.”8 But the issue here is not whether conviction information in expunged records subsequently could be “noted” to meet the requirements of article 42.12, section 20(a), but whether appellant has satisfied his burden to prove compliance with the statutory requirements for expunction in article 55.01.9

Appellant recognizes that some courts of appeals have concluded that “judicial clemency cannot form the basis for expunction[,]” citing T.C.R. v. Bell County District Attorney's Office, 305 S.W.3d 661, 663–64 (Tex. App.—Austin 2009, no pet.), and Perdue, 32 S.W.3d at 335. But appellant argues that the “rationales” by the courts “simply fail to convince.” He contends that T.C.R. “holds that community supervision eliminates expunction” and argues that, although this is “normally” the case, “completion of regular community supervision involves no clemency.” The issue before the court in T.C.R., however, was whether T.C.R. fulfilled the requirements of article 55.01(a)(2) that the limitations period for the felony charges he sought to expunge had expired before he filed his petition for expunction. Id. at 663. In addition, appellant states that “Perdue posits that community supervision removes expunction” and that “expunction is a remedy for wrongfully-arrested people” and that Perdue is of doubtful viability because “some rightfully-arrested persons qualify for expunction.”10 But regardless, that is not the issue before the Court.

Appellant also relies upon Cuellar v. State, 70 S.W.3d 815, 819 (Tex. Crim. App. 2002), which concluded that the words in the judicial clemency provision in article 42.12, section 20(a) “are crystal clear”: “If a judge chooses to exercise this judicial clemency provision, the conviction is wiped away, the indictment dismissed, and the person is free to walk away from the courtroom ‘released from all penalties and disabilities' resulting from the conviction.” He argues that if a criminal record is not one of the penalties and disabilities released by judicial clemency under article 42.12, section 20(a), then the statute is not “crystal clear” and removes only some disabilities and penalties. But as the court concluded in J.H.J., 274 S.W.3d at 810, Cuellar is distinguishable because it was not an expunction case. Rather, the Cuellar court concluded that a felony conviction discharged by judicial clemency under article 42.12, section 20 was not a felony conviction for purposes of a statute prohibiting a convicted felon from possessing a firearm. Cuellar, 70 S.W.3d at 820.

Appellant finally argues that, although article 55.01 does not specify judicial clemency as a ground for expunction, it also does not preclude it. But the issue here is whether court-ordered community supervision precludes expunction, not whether judicial clemency is a ground for expunction. The statute specifically precludes expunction under these circumstances and we are not free to read language into the statute that the legislature has not included. See TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011) (“We presume that the Legislature chooses a statute's language with care, including each word chosen for a purpose, while purposefully omitting words not chosen.”).

We conclude that the trial court did not err in denying appellant's petition to expunge his conviction. We overrule appellant's sole issue and affirm the trial court's judgment.

CONCLUSION

We affirm the trial court's judgment.

FOOTNOTES

1.   Act of May 27, 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws. 317, 492 (codifying as sec. 7), amended by Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, sec. 23, 1989 Tex. Gen. Laws 3471, 3516 (recodifying section 7 as section 23), amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, sec. 20, 1993 Tex. Gen. Laws 3586, 3739 (recodifying section 23 as section 20), amended by Act of May 21, 2007, 80th Leg., R.S., ch. 1205, § 6, 2007 Tex. Gen. Laws 4078, 4080–81; amended by Act of May 25, 2011, 82nd Leg., R.S., ch. 961, § 1, 2011 Tex. Sess. Law Serv. 2413, 2413–14. Effective January 1, 2017, the Texas legislature repealed article 42.12 and enacted a new chapter 42A, which is a nonsubstantive revision of the community supervision laws. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, §§ 1.01, 3.01, 4.01–.02, 2015 Tex. Sess. Law Serv. 2320, 2320–64, 2394 (codified at TEX. CODE CRIM. PROC. ANN. ch. 42A); see id. at 2358–59 (codifying article 42.12, section 20(a) as TEX. CODE CRIM. PROC. ANN. art. 42A.701).

2.   Appellee states that it files “on behalf of the Dallas County Respondents[.]”

3.   Act of May 27, 2011, 82nd Leg., R.S., ch. 690, 2011 Tex. Sess. Law Serv. 1651, 1652. Effective January 1, 2017, the legislature amended article 55.01 of the code of criminal procedure to refer to chapter 42A instead of article 42.12. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Sess. Law Serv. 2320, 2373–74. The 2015 amending act was a non-substantive codification. See Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 4.01, 2015 Tex. Sess. Law Serv. 2320, 2394.

4.   In addition, as appellee notes, conditions of appellant's community supervision generally correspond to the basic conditions for community supervision in article 42.12. See Tex. Dept. of Public Safety v. Nail, 305 S.W.3d 673, 681 (Tex. App.—Austin 2010, no pet.) (“Texas courts—including this Court—have uniformly held that court orders that impose deferred adjudication impose ‘court ordered community supervision under Article 42.12” within the meaning of article 55.01(a)(2), at least when the order imposes one or more of the ‘conditions' under article 42.12, section 11.”).

5.   See Act of May 27, 2011, 82nd Leg., R.S., ch. 690, 2011 Tex. Sess. Law Serv. 1651, 1652 (amended 2015); see also Jacobs, 250 S.W.3d at 211 (concluding where appellant served “deferred adjudication probation [,]” the record established he “was not entitled to expunction because the court ordered ‘community supervision’ under article 42.12 of the code of criminal procedure”).

6.   Id.; see Jacobs, 250 S.W.3d at 211. Article 55.01 referred to article 42.13 at the time, instead of article 42.12. Moore, 670 S.W.2d at 728. In addition, we concluded that Moore did not satisfy all conditions because the order setting aside the indictment did not “indicate an absence of probable cause for the issuance of the indictment”—which was a requirement under article 55.01. Id. at 728–29.

7.   Act of May 27, 1965, 59th Leg., R.S., ch. 722, 1965 Tex. Gen. Laws. 317, 492, amended by Act of May 29, 1989, 71st Leg., R.S., ch. 785, § 4.17, 1989 Tex. Gen. Laws 3471, 3516, amended by Act of May 29, 1993, 73rd Leg., R.S., ch. 900, § 4.01, 1993 Tex. Gen. Laws 3586, 3739 (emphasis added).

8.   Appellant cites the distinguishable case, Yazdchi v. State, 428 S.W.3d 831, 833, 837, 841, 844 (Tex. Crim. App. 2014), which did not involve expunction, but the requirement that—if a defendant is convicted of another offense after receiving judicial clemency under article 42.12, section 20(a)(1)—the previously dismissed felony conviction will “resurrect” and must be “made known” to the trial judge.

9.   Act of May 27, 2011, 82nd Leg., R.S., ch. 690, 2011 Tex. Sess. Law Serv. 1651, 1652 (amended 2015).

10.   Appellant cites to code of criminal procedure article 55.01(a)(2)(A)(ii), which provides that an arrested person is entitled to expunction of arrest records if, among other things, an indictment or information was dismissed or quashed because the person completed a pretrial intervention program. Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3010, 3019–20, amended by Act of May 27, 2011, 82nd Leg., R.S., ch. 690, 2011 Tex. Gen. Laws 1651, 1652, amended by Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Sess. Law Serv. 2320, 2372–73.

ELIZABETH LANG-MIERS JUSTICE