Texas Department of Public Safety v. Alfred Schuetze ( 2019 )


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  •                           NUMBER 13-17-00661-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    TEXAS DEPARTMENT OF PUBLIC SAFETY,                                         Appellant,
    v.
    ALFRED SCHUETZE,                                                             Appellee.
    On appeal from the 445th District Court
    of Cameron County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Contreras and Justices Benavides, and Longoria
    Memorandum Opinion by Justice Benavides
    By this restricted appeal, appellant, the Texas Department of Public Safety (the
    Department), challenges the trial court’s granting of appellee Alfred Schuetze’s motion to
    expunge his arrest for theft, a class C misdemeanor, public intoxication by a minor, a
    class C misdemeanor, possession of marijuana, a class B misdemeanor, and possession
    of drug paraphernalia, a class C misdemeanor. See TEX. PENAL CODE ANN. §§ 31.03,
    49.02 (West, Westlaw through 2017 1st C.S.); TEX. HEALTH & SAFETY CODE §§ 481. 121,
    481.125 (West, Westlaw through 2017 1st C.S.); TEX. CODE CRIM. PROC. ANN. § 55.01
    (West, Westlaw through 2017 1st C.S). By two issues, the Department alleges that (1)
    Schuetze was not entitled to an expunction of the November 21, 2014 charges because
    one of those charges resulted in a final conviction and (2) Schuetze’s petition for
    expunction was not supported by legally sufficient evidence. We reverse and render.
    I.     BACKGROUND
    On November 21, 2014, Schuetze was arrested for the four underlying offenses to
    this expunction. Pursuant to a plea bargain in which the other three charges were
    dismissed, Schuetze was found guilty of possession of drug paraphernalia and ordered
    to pay a fine on May 7, 2015.
    On January 22, 2016, Schuetze filed this petition for expunction of the four charges
    from November 21, 2014, as well as additional charges from different dates of arrest.
    The Department filed an answer stating that Schuetze was not entitled to the expunction
    of the records from November 21, 2014 due to his conviction on May 7, 2015.
    A hearing was held on April 19, 2016 and the trial court denied the expunction of
    the four charges arising out of the November 21, 2014 arrest, but allowed expunction of
    the arrests from other dates.
    In June 2016, Schuetze filed an agreed motion for Judgment Nunc Pro Tunc
    alleging a clerical error omitted two arrests that should have been expunged.        At a
    hearing regarding the motion for Judgment Nunc Pro Tunc, although the District Attorney
    and Schuetze agreed to expunge the public intoxication and theft charges from November
    2
    21, 2014, the trial court denied the motion because there was a final conviction that
    resulted from the arrest on November 21, 2014.
    Schuetze appealed the trial court’s denial of the motion for Judgment Nunc Pro
    Tunc to this Court. However, we denied his appeal for want of jurisdiction because the
    denial of a motion for Judgment Nunc Pro Tunc was not an appealable order. Ex parte
    Schuetze, No. 13-16-00586-CV, 
    2017 WL 711645
    , *1 (Tex. App.—Corpus Christi
    February 23, 2017, no pet.) (mem. op.).
    Following our dismissal, Schuetze filed a second proposed Order Granting
    Expunction of Criminal Records which included all four offenses from the arrest on
    November 21, 2014.1 Following a subsequent hearing in which the District Attorney and
    Schuetze appeared, the trial court signed the order granting expunction.                             The
    Department filed this restricted appeal.
    II.      RESTRICTED APPEAL
    A.      Standard of Review
    Restricted appeals are governed by Rule 30 of the Texas Rules of Appellate
    Procedure. See TEX. R. APP. P. 30. When a party does not participate in person or
    through counsel in a hearing that results in a judgment, that party may be eligible for a
    restricted appeal. See 
    id. When addressing
    a restricted appeal, our review is limited
    to the face of the record. Ex parte Vega, 
    510 S.W.3d 544
    , 547 (Tex. App.—Corpus
    1 Although Schuetze filed the second proposed Order Granting Expunction of Criminal Records
    in the same district court as before, the now-elected trial judge, Gloria Rincones, conducted the hearing.
    Previous hearings had been held before Judge Rene DeCoss.
    3
    Christi 2016, no pet.). For these purposes, the “face of the record” consists of all papers
    that were before the trial court at the time it rendered judgment. 
    Id. To sustain
    a restricted appeal, the filing party must prove: (1) the party filed notice
    of the restricted appeal within six months after the judgment was signed; (2) the party was
    a party to the underlying lawsuit; (3) the party 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 from the
    fact of the record. TEX. R. APP. P. 26.1(c), 30; Pike-Grant v. Grant, 
    447 S.W.3d 884
    , 886
    (Tex. 2014) (per curiam); Alexander v. Lynda’s Boutique, 
    134 S.W.3d 845
    , 848 (Tex.
    2004).
    B.     Applicable Law and Discussion
    In order to be entitled to a restricted appeal, the Department must meet the criteria
    related to a restricted appeal. We agree that the Department filed a notice of restricted
    appeal within six months of the judgment and that it was a party to the underlying lawsuit,
    thereby meeting the first two prongs required. However, the third prong required the
    Department to show it did not participate in the hearing, file any post-judgment motions,
    or request findings from the trial court. See 
    Pike-Grant, 447 S.W.3d at 886
    .
    We are required to liberally construe the non-participation requirement for
    restricted appeals in favor of the right to appeal. 
    Pike-Grant, 447 S.W.3d at 886
    ; Stubbs
    v. Stubbs, 
    685 S.W.2d 643
    , 644–45 (Tex. 1985). The question is whether the appellant
    participated in the decision-making event that resulted in the judgment adjudication of the
    appellant’s rights. 
    Stubbs, 685 S.W.2d at 644
    ; In re B.H.B., 
    336 S.W.3d 303
    , 305 (Tex.
    4
    App.—San Antonio 2010, pet. denied).                     A restricted appeal is not an equitable
    proceeding. Texaco, Inc. v. Central Power & Light Co., 
    925 S.W.2d 586
    , 590 (Tex.
    1996). An appellant [in a restricted appeal] “is not required to show diligence or lack of
    negligence before its complaints will be heard . . . [because] it is the fact of
    nonparticipation, not the reason for it, that determines the right to [a restricted appeal].”
    Id.; see In re Marriage of Butts, 
    444 S.W.3d 147
    , 152 (Tex. App.—Houston [14th Dist.]
    2014, no pet.); Midstate Envtl. Servs., LP v. Peterson, 
    435 S.W.3d 287
    , 291 (Tex. App.—
    Waco 2014, no pet.); Orgoo, Inc. v. Rackspace US, Inc., 
    341 S.W.3d 34
    , 40 (Tex. App.—
    San Antonio 2011, no pet.); see also McBride v. Mail Sys. Coordinator’s Panel, 13-05-
    560-CV, 
    2008 WL 2151523
    , at *3 (Tex. App.—Corpus Christi May 22, 2008, pet. denied)
    (mem. op.).
    Even though the District Attorney appeared and agreed to the expunction, the
    Department did not; instead, it filed an answer challenging the original petition for
    expunction.       Because the Department in Schuetze’s case did not agree to the
    expunction, we find it meets the third prong of the requirements for a restricted appeal.2
    2   An entity described in the expunction statute “may be represented by the attorney responsible
    for providing the entity with legal representation in other matters.” See TEX. CODE CRIM. PROC. ANN. art.
    55.01 § 2(c-1) (West, Westlaw through 2017 1st C.S.) (emphasis added). Under this provision, the District
    Attorney does not automatically represent the Department in an expunction proceeding. See, e.g., Tex.
    Dep’t of Pub. Safety v. Smith, 
    533 S.W.3d 488
    , 496 (Tex. App.—Corpus Christi May 4, 2017, no pet.).; Tex.
    Dep’t of Pub. Safety v. J.B.R., 
    510 S.W.3d 610
    , 616 (Tex. App.—El Paso 2016, no pet.); Tex. Dep’t of Pub.
    Safety v. Deck, 
    954 S.W.2d 108
    (Tex. App.—San Antonio 1997, no writ); Tex. Dep’t of Pub. Safety v.
    Katapodis, 
    886 S.W.2d 455
    , 458 (Tex. App.—Houston [1st Dist.] 1994, no writ). Our decision in Texas
    Department of Public Safety v. Espinoza is distinguishable from these cases. See No. 13-08-00393-CV,
    
    2009 WL 2545884
    , at *1 (Tex. App.—Corpus Christi Aug. 20, 2009, no pet.) (mem. op.). In Espinoza, the
    issue was not briefed or raised by the parties and it is not clear from the record whether there was an
    agreement regarding representation between the District Attorney and the Department. See 
    id. In this
    regard, agreements or putative agreements regarding representation of the Department by the District
    Attorney are handled on a case-by-case basis given the discretionary nature of the statute and the differing
    factual scenarios that might be presented. See TEX. CODE CRIM. PROC. ANN. art. 55.02 § 2(c-1).
    5
    Having concluded the Department meets the first three requirements, we now turn
    to whether error is apparent on the face of the record.
    III.   EXPUNCTION
    By two issues, the Department argues Schuetze was not entitled to an expunction
    of the charges from November 21, 2014 because one charge resulted in a final conviction
    and Schuetze’s petition was not supported by legally sufficient evidence.
    A.     Applicable Law
    The remedy of expunction permits a person who has been arrested for the
    commission of a criminal offense and released, and who meets certain other conditions,
    to have all records and files related to that arrest removed from the government’s records.
    See TEX. CODE CRIM. PROC. ANN. art. 55.01; see also Ex parte 
    Vega, 510 S.W.3d at 548
    .
    Although the statute is codified in the Texas Code of Criminal Procedure, an expunction
    proceeding is civil in nature.       Ex parte 
    Vega, 510 S.W.3d at 548
    . As in other civil
    proceedings, it is the petitioner’s burden to show that all the statutory conditions have
    been met. 
    Id. And because
    expunction is not a right but a statutory privilege, each of
    the statutory conditions for expunction are mandatory and exclusive. 
    Id. It is
    an abuse
    of discretion for the trial court to order expunction when the statutory conditions have not
    been met because the court possesses “no equitable power to permit expunction where
    it is not allowed” by statute. 
    Id. Schuetze’s issue
    requires us to interpret the expunction statute. Statutory
    interpretation is a question of law that we also review de novo. City of Rockwall v.
    Hughes, 
    246 S.W.3d 621
    , 625 (Tex. 2008). Our goal in interpreting a statute is to give
    6
    effect to the Legislature’s intent as expressed by the language in the statute. 
    Id. We assume
    that the statute’s words bear their “plain and common meaning” unless the
    Legislature provided a definition or another meaning that is apparent from the context.
    
    Id. at 625–26.
    We consider the statute as a whole, reading each word and phrase in
    context, and attempt to give effect to every part. Mid-Century Ins. Co. of Tex. v. Ademaj,
    
    243 S.W.3d 618
    , 621 (Tex. 2007). If the meaning of statutory language is clear and
    unambiguous, we may not resort to rules of construction or extrinsic aids.          City of
    
    Rockwall, 246 S.W.3d at 626
    . However, we may also consider the object the Legislature
    sought to attain by enacting the statute. Lexington Ins. Co. v. Strayhorn, 
    209 S.W.3d 83
    ,
    87 (Tex. 2006) (citing TEX. GOV'T CODE ANN. § 311.023(1) (West, Westlaw through 2017
    1st C.S.)).
    Article 55.01(a) of the expunction statute governs a petitioner’s right to expunction
    and provides, in relevant part, that:
    (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
    Article 42.12 for the offense, unless the offense is a Class C
    misdemeanor, provided that:
    (A)    regardless of whether any statute of limitations exists
    for the offense and whether any limitations period for
    the offense has expired, an indictment or information
    charging the person with the commission of a
    misdemeanor offense . . .
    7
    (i)    has not been presented against a person at any
    time following the arrest . . .
    . . . or
    (ii)   if presented at any time following the arrest, was
    dismissed or quashed, and the court finds that
    the indictment or information was dismissed or
    quashed because the person completed a
    pretrial intervention program authorized under
    Section 76.011, Government Code, because
    the presentment had been made because of
    mistake, false information, or other similar
    reason indicating absence of probable cause at
    the time of the dismissal to believe the person
    committed the offense, or because the
    indictment or information was void; or
    (B)    prosecution of the person for the offense for which the
    person was arrested is no longer possible because the
    limitations period had expired.
    TEX. CODE CRIM. PROC. ANN. art. 55.01(a).
    C.     Discussion
    To establish entitlement to expunction under article 55.01(a)(2), Schuetze was
    required to prove that: (1) he has been released; (2) the charge, if any, has not resulted
    in a final conviction; (3) the charge, if any, is no longer pending; and (4) there was no
    court-ordered community supervision under article 42.12 of the Texas Code of Criminal
    Procedure. See 
    id. art. 55.01(a)(2)(A);
    see also Tex. Dep’t of Pub. Safety v. G.B.E., 
    459 S.W.3d 622
    , 626 (Tex. App.—Austin 2014, pet. ref’d).
    Schuetze argues that the plea to a Class C misdemeanor does not prevent
    expunction of the charges arising out of the November 21, 2014 arrest. The Department
    argues expunction is prevented because the Class C possession of drug paraphernalia
    8
    arose out of the same arrest and is therefore barred.
    Article 55.01(a) begins by providing that “[a] person who has been placed under a
    custodial or noncustodial arrest” may “have all records and files relating to the arrest”
    expunged if certain conditions are met.          TEX. CODE CRIM. PROC. ANN. art. 55.01
    (emphasis added). The statutory language contemplates expunging all of the records
    related to an arrest but makes no provision for expunging records related to a particular
    charge that resulted from an arrest. See id.; see also Ex parte 
    Vega, 510 S.W.3d at 550
    (interpreting article 55.01(a) in the same manner); 
    G.B.E., 459 S.W.3d at 629
    . If the
    Legislature wished to permit persons to expunge records related to a particular charge
    resulting from an arrest without expunging all records of the arrest itself, we presume that
    it would have included language with that meaning in the statute. See S.J. v. State, 
    438 S.W.3d 838
    , 843 (Tex. App.—Fort Worth 2014, no pet.); see also Ex parte S.C., 
    305 S.W.3d 258
    , 263 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (holding that an
    expunction order was overbroad because the Legislature did not include language
    allowing a person to expunge records “relating to the investigation” or “resulting in” or
    “contributing to” an arrest). Furthermore, the statute does not make the availability of
    expunction turn on whether a charge was filed following the arrest, but requires that “the
    charge, if any” is not still pending and did not have certain results. See TEX. CODE CRIM.
    PROC. ANN. art. 55.01(a)(2); see also 
    S.J., 438 S.W.3d at 843
    .
    Viewing the statute as a whole and keeping in mind its general purpose of
    permitting the expunction of wrongful arrests, we conclude that a person is “not entitled
    to have any arrest records expunged under article 55.01(a)(2) when (1) one or more
    9
    charges result in a conviction (for that particular charge) and (2) any remaining charge is
    dismissed, but that dismissal results in a final conviction of any charge arising from the
    same arrest.” 
    G.B.E., 459 S.W.3d at 629
    (emphasis in original); see In re A.G., 
    417 S.W.3d 652
    , 655 (Tex. App.—El Paso 2013, no pet.) (reversing trial court’s grant of
    expunction of DWI charge, concluding that petitioner failed to show that charge had not
    resulted in final conviction under current version of article 55.01 because petitioner
    pleaded guilty to reckless driving).
    Schuetze was originally arrested for Class C theft, public intoxication by a minor,
    possession of marijuana, and possession of drug paraphernalia. See TEX. PENAL CODE
    ANN. §§ 31.03, 49.02; TEX. HEALTH & SAFETY CODE ANN. §§ 481.121, 481.125. As part
    of a plea agreement, he pleaded guilty to the possession of drug paraphernalia and the
    State dismissed the other offenses. Because of the events that occurred, we hold that
    Schuetze failed to meet the requirements of article 55.01(a). See 
    G.B.E., 459 S.W.3d at 629
    ; In re 
    A.G., 417 S.W.3d at 655
    ; see also Ex parte Almaraz, No. 13-17-00153-CV,
    
    2018 WL 4087737
    , *1 (Tex. App.—Corpus Christi Aug. 28, 2018, no pet.) (mem. op.); Ex
    parte Carlos De La Garza, No. 13-16-00522-CV, 
    2018 WL 1417450
    , *1 (Tex. App.—
    Corpus Christi Mar. 22, 2018, no pet.) (mem. op.).       Schuetze was not tried for the
    offenses and acquitted or pardoned. Therefore, Schuetze did not meet the requirements
    of article 55.01(a)(1). Schuetze also failed to satisfy article 55.01(a)(2) because the
    record shows that, although the three additional charges were dismissed, as part of his
    plea agreement with the State, Schuetze was convicted of a Class C misdemeanor
    offense for possession of drug paraphernalia.       Thus, the charge resulted in a final
    10
    conviction rendering Schuetze’s records ineligible for expunction.                  See Rodriguez v.
    State, 
    224 S.W.3d 783
    , 785 (Tex. App.—Eastland 2007, no pet.); see also Tex. Dep’t of
    Pub. Safety v. Aytonk, 
    5 S.W.3d 787
    , 788 (Tex. App.—San Antonio 1999, no pet.).
    We sustain the Department’s first issue.3
    III.    CONCLUSION
    We reverse the trial court’s order of expunction and render judgment denying
    Schuetze’s petition for expunction regarding his arrest on November 21, 2014.
    GINA M. BENAVIDES,
    Justice
    Delivered and filed the
    10th day of January, 2019.
    3 Since we sustained the Department’s first issue that Schuetze was not entitled to an expunction,
    we do not need to address the second issue as the first issue is dispositive.
    11