State v. S.M. ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00242-CV
___________________________
THE STATE OF TEXAS, Appellant
V.
S.M., Appellee
On Appeal from County Criminal Court No. 4
Tarrant County, Texas
Trial Court No. 1353168
Before Gabriel, Pittman, and Bassel, JJ.
Memorandum Opinion by Justice Gabriel
MEMORANDUM OPINION
Appellant the State of Texas appeals from the trial court’s order granting
appellee S.M.’s petition for the nondisclosure of his prior conviction for driving while
intoxicated (DWI). The State argues that because S.M. was punishable for a Class A
misdemeanor based on his alcohol-concentration level of 0.17, he was statutorily
ineligible for nondisclosure. We conclude that at the time S.M. pleaded guilty under a
plea-bargain agreement, he was not punishable for a Class A misdemeanor. Thus, the
trial court did not err by ordering the nondisclosure of S.M.’s criminal-history record
information.
I. BACKGROUND
On December 23, 2013, S.M. was charged by information with the Class A
misdemeanor offense of DWI with an alcohol concentration of 0.15 or more. See
Tex. Penal Code Ann. § 49.04(a), (d). Under a charge-bargain agreement with the
State, S.M. pleaded guilty to the Class B misdemeanor offense of driving while
intoxicated with no punishment recommendation based on the State’s agreement to
proceed on the lesser-included, Class B offense. See id. § 49.04(b). See generally Harper
v. State, No. 02-17-00016-CR, 2019 WL 165986, at *2–3 (Tex. App.—Fort Worth
Jan. 10, 2019, no pet.) (explaining differences between charge bargain and sentence
bargain). On the plea-agreement papers, the punishment range for the offense was
listed as that for a Class B misdemeanor DWI—a fine not to exceed $2,000;
confinement for a minimum term of 72 hours but not to exceed 180 days; or both.
2
See Tex. Penal Code Ann. §§ 12.22, 49.04(b). In other words, the trial court
admonished S.M. before accepting his guilty plea that the applicable punishment
range was that for a DWI where there would be no showing that the defendant’s
alcohol-concentration level was 0.15 or more.1 See id. § 49.04(b), (d); see also Tex. Code
Crim. Proc. Ann. art. 26.13(a)(1). However, those same plea papers noted that S.M.’s
breath-alcohol-concentration level had been 0.17.
On May 30, 2014, the trial court adjudged S.M. guilty “of the offense of
DRIVING WHILE INTOXICATED a class B misdemeanor,” sentenced him to a
fine of $1,250 and twenty days’ confinement, and suspended his driver’s license for
four months. The trial court allowed S.M. to serve his confinement time on weekend
labor detail, which the State had opposed during the plea-bargain discussions. The
judgment made no reference to S.M.’s alcohol-concentration level, to section 49.04(d),
or to a Class A misdemeanor.
On June 6, 2014, S.M. filed a verified petition for an occupational driver’s
license to allow him to travel to his job as an auditor and affirmed that his car was
equipped with an interlock device. See Tex. Transp. Code Ann. §§ 123.009, 521.242(a).
The trial court granted the petition and required S.M. to have an interlock device on
1
We do not have a reporter’s record from the guilty-plea proceeding; however,
we may rely on the documents pertinent to S.M.’s charge and conviction. Cf. Scott v.
State, 86 S.W.3d 374, 375–76 (Tex. App.—Fort Worth 2002, no pet.) (concluding
guilty plea was voluntary based on documents in clerk’s record because no reporter’s
record of guilty-plea proceeding was filed).
3
his car while his driver’s license was suspended—between June 8 and July 8, 2014. See
id. §§ 521.244, .246.
On November 21, 2017, after S.M. completed his sentence and paid all ordered
fines and fees,2 S.M. filed a verified petition for the nondisclosure of his criminal-
history record information. See Tex. Gov’t Code Ann. § 411.0736; see also id.
§ 411.0716(a) (providing nondisclosure chapter extends to non-deferred “offense[s]
committed before, on, or after September 1, 2017” (emphasis added)). A
nondisclosure order is available “only to a person who . . . is convicted of an offense
under Section 49.04, Penal Code, other than an offense punishable under Subsection
(d) of that section.” Id. § 411.0736(a)(1). In short, the nondisclosure statute
regarding certain DWI convictions does not apply to a defendant who was punishable
for Class A misdemeanor DWI based on his alcohol-concentration level. S.M. alleged
that he had pleaded guilty “to the misdemeanor offense of [DWI] (NOT OVER
0.15).” S.M. further alleged that he had maintained an interlock device on his car for
more than six months as part of his sentence. See id. § 411.0736(c) (providing
nondisclosure petition must include evidence that petitioner “entitled” to file
petition), § 411.0736(f)(1) (allowing nondisclosure petition to be filed on or after the
third anniversary of sentence’s completion date if conditions of sentence included an
interlock device for at least six months).
The State does not dispute that S.M. completed his sentence and satisfied his
2
payment obligations.
4
The State answered and argued that S.M. had been punishable under section
49.04(d) because he pleaded “to facts showing the [DWI] conviction involved a Blood
Test showing a blood-alcohol concentration of 0.17, over the . . . statutory limit.”3
The State asserted that its position was in line with the legislative history and intent in
enacting section 411.0736—“to only allow for nondisclosure for [DWI] convictions
for offenses with a blood-alcohol concentration less than 0.15.” The State did not
specifically respond to S.M.’s allegation that he had complied with an interlock-device
condition for six months as a condition of his sentence. The State attached the plea
agreement and S.M.’s breath-test results as an exhibit to its answer, indicating that the
breath-test results were the second page of the plea agreement; but the record
provided to this court does not show that the actual test results were part of the plea
proceeding.4
The trial court held a hearing on the petition, and S.M. testified that he had
pleaded guilty to Class B misdemeanor DWI, not to Class A misdemeanor DWI with
an alcohol-concentration level of 0.15 or more. He also stated that he had an
interlock device on his car before his guilty plea, without explaining why, and that he
“kept it on after” as required for his occupational license. He assumed the interlock-
The record shows that S.M.’s alcohol-concentration level was based on a
3
breath specimen, not blood.
The results show that S.M. first blew a 0.18 and three minutes later blew a
4
0.17.
5
device requirement for his license was “to ensure that [he] wasn’t drinking and
driving.” The trial court, at the State’s request, took judicial notice of the legislative
history of section 411.0736. The trial court then granted S.M.’s petition and signed an
order of nondisclosure. No party requested the trial court to enter findings of fact
and conclusions of law, and none were entered. See Tex. R. Civ. P. 296.
The State filed a notice of appeal from the nondisclosure order and now argues
that S.M. failed to prove his eligibility for nondisclosure because (1) S.M. was
punishable under section 49.04(d) and (2) S.M. did not satisfy the statutory waiting
period before he sought nondisclosure. S.M. responds substantively to these
arguments but also argues that this court does not have jurisdiction to hear the State’s
appeal.
II. JURISDICTION
A. AMOUNT IN CONTROVERSY: OUR JURISDICTION
We begin, as we must, with our subject-matter jurisdiction to hear the State’s
appeal, which S.M. challenges. Nondisclosure orders are considered civil matters, and
our jurisdiction is determined by reference to provisions governing civil appeals. See
Harris v. State, 402 S.W.3d 758, 760–61, 760 n.2 (Tex. App.—Houston [1st Dist.] 2012,
no pet.). The Texas Constitution confers jurisdiction on this court over original and
appellate matters “as may be prescribed by law” and over “all cases of which the
District Courts or County Courts have original or appellate jurisdiction, under such
restrictions and regulations as may be prescribed by law.” Tex. Const. art. V, § 6(a).
6
Accordingly, our jurisdiction must be based on either (1) a specific statutory grant of
jurisdiction over the matter at hand or (2) the general constitutional grant, subject to
any legislative limits. See State v. L.P., 525 S.W.3d 418, 419 (Tex. App.—Fort Worth
2017, no pet); Harris, 402 S.W.3d at 760.
The statutes governing nondisclosure orders confer no right to appeal. L.P.,
525 S.W.3d at 420. But the legislature has granted the courts of appeals general
jurisdiction “of all civil cases within its district of which the district courts or county
courts have jurisdiction when the amount in controversy or the judgment rendered
exceeds $250, exclusive of interest and costs.” Tex. Gov’t Code Ann. § 22.220(a); see
also Tex. Civ. Prac. & Rem. Code Ann. § 51.012.
At the nondisclosure hearing, the State elicited S.M.’s opinion regarding the
value of a nondisclosure order:
[State’s attorney] So because you’re a financial [analyst], I want to
break it down into numbers. Do you agree that getting this
nondisclosure would be worth more than $250 to you and maybe the
cost of lower insurance, a higher paying job, things of that nature?
[S.M.] Absolutely.
S.M. further testified that he sought nondisclosure because of his job and his concern
that his clients or employer would discover his criminal history. S.M. contends that
this evidence was speculative and therefore insufficient to confer jurisdiction over the
State’s appeal. But “[t]he subjective value of a privilege, if asserted in good faith,
7
establishes jurisdiction if that value meets the requisite amount in controversy.” Tune
v. Tex. Dep’t of Pub. Safety, 23 S.W.3d 358, 362 (Tex. 2000).
Here, S.M. testified that the value to him of a nondisclosure order was
“absolutely” worth more than $250. Even though subjective, this evidence was
sufficient to meet the required amount in controversy to confer jurisdiction on this
court to consider the State’s appeal. See Harris, 402 S.W.3d at 761–63; cf. L.P.,
525 S.W.3d at 419 (finding no appellate jurisdiction under general constitutional grant
because parties did not address amount in controversy at nondisclosure hearing or on
appeal); Guinn v. State, No. 05-09-01295-CV, 2010 WL 22817, at *1 (Tex. App.—Dallas
Jan. 6, 2010, no pet.) (mem. op.) (“The only amount involved was the filing fee for the
petition, which cannot be used to satisfy the amount in controversy requirement.”);
Huth v. State, 241 S.W.3d 206, 208 (Tex. App.—Amarillo 2007, no pet.) (finding no
jurisdiction over nondisclosure appeal because “the record here contains no basis,
other than the trial court’s filing fee, on which to assign a value to Huth of the non-
disclosure order he sought”). We conclude that we have jurisdiction over the State’s
appeal.
B. STATUTORY WAITING PERIOD: TRIAL COURT’S JURISDICTION
The State argues for the first time on appeal that because S.M. did not satisfy
the statutory five-year waiting period before seeking nondisclosure, the trial court did
not have subject-matter jurisdiction to hear S.M.’s petition. S.M. responds that
8
because the State failed to raise this issue in the trial court, it is not preserved for our
review. See Tex. R. App. P. 33.1(a).
A trial court’s lack of subject-matter jurisdiction cannot be waived and may be
raised for the first time on appeal; but a party’s failure to raise a procedural complaint
in the trial court will result in waiver of that complaint. See Tellez v. City of Socorro,
226 S.W.3d 413, 414 (Tex. 2007) (per curiam); cf. AC Interests, L.P. v. Tex. Comm’n on
Envtl. Quality, 543 S.W.3d 703, 714 (Tex. 2018) (“Failure to comply with a directory
provision has consequences, but they are not always fatal.”). Mandatory statutory
requirements, however, are presumed not to be jurisdictional. See City of DeSoto v.
White, 288 S.W.3d 389, 394 (Tex. 2009); cf. Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958,
961 (Tex. 1999) (per curiam) (“[J]ust because a statutory requirement is mandatory
does not mean that compliance with it is jurisdictional.”). This presumption may be
“overcome only by clear legislative intent to the contrary.” DeSoto, 288 S.W.3d at 394.
We look to the plain language of the statute to discern legislative intent. Tex. Health
Presbyterian Hosp. of Denton v. D.A., No. 17-0256, 2018 WL 6713207, at *7 (Tex. Dec.
21, 2018); DeSoto, 288 S.W.3d at 395.
Here, the applicable waiting period is either three or five years, depending on
whether the person complied with an interlock-device sentencing condition:
A person may petition the court that imposed the sentence for an order
of nondisclosure of criminal history record information under this
section on or after:
9
(1) the third anniversary of the date of completion of the
person’s sentence, if the person successfully complied with a
condition of the sentence that, for a period of not less than six
months, restricted the person’s operation of a motor vehicle to a
motor vehicle equipped with an ignition interlock device; or
(2) the fifth anniversary of the date of completion of the person’s
sentence, if the court that imposed the sentence did not order the
person to comply with a condition described by Subdivision (1)
for the period described by that subdivision.
Tex. Gov’t Code Ann. § 411.0736(f). There is nothing in the language of the waiting
period indicating that the legislature intended the waiting period to be jurisdictional.
See id. § 311.016. Mandatory perhaps, but not jurisdictional. See Albertson’s, 984 S.W.2d
at 961; cf. Wills v. State, No. 09-14-00373-CV, 2015 WL 6520924, at *2 (Tex. App.—
Beaumont Oct. 29, 2015, no pet.) (mem. op.) (“Because Wills has not shown that he is
statutorily eligible to file a petition for nondisclosure, we conclude the trial court did
not abuse its discretion in denying his petition.”). And it includes no specific
consequences for noncompliance. See Park v. Escalera Ranch Owners’ Ass’n, Inc.,
457 S.W.3d 571, 588 (Tex. App.—Austin 2015, no pet.). The statutory, procedural
waiting periods for nondisclosure orders applicable to certain DWI convictions,
similar to statutes of limitation, are phrased in terms of a petitioner’s ability to seek
such an order based on a condition precedent and are not phrased as a bar to the trial
court’s subject-matter jurisdiction. See Tex. Gov’t Code Ann. § 411.0736(b) (granting
court that imposed sentence subject-matter jurisdiction to determine nondisclosure
petition), § 411.0736(f) (providing “[a] person may petition the court . . . for an order
10
of nondisclosure” after the waiting period expires); cf. Davis v. Fort Bend Cty., 893 F.3d
300, 306–07 (5th Cir. 2018) (concluding Title VII’s exhaustion-of-administrative-
remedies requirement is condition precedent to filing suit, not jurisdictional, and is
subject to waiver because the requirement is “not expressed in jurisdictional terms in
the statute and . . . there is nothing in the statute to suggest that Congress intended
for this requirement to be jurisdictional” (citation omitted)), cert. granted, (U.S. Jan. 11,
2019) (No. 18-525). As such, the waiting period is not jurisdictional and by failing to
raise the issue in the trial court, the State failed to preserve it for our review.
III. PUNISHABLE
We review a trial court’s ruling on a nondisclosure petition for an abuse of
discretion. See Goodson v. State, Nos. 09-18-00018-CV, 09-18-00019-CV, 09-18-00020-
CV, 09-18-00021-CV, 09-18-00022-CV, 2018 WL 5060432, at *2 (Tex. App.—
Beaumont Oct. 18, 2018, no pet.) (mem. op.) (collecting cases). However, if the trial
court’s ruling turned on a question of law, we review it de novo because a trial court
has no discretion in determining what the law is or in applying the law to the facts.
See S.J. v. State, 438 S.W.3d 838, 841 (Tex. App.—Fort Worth 2014, no pet.). And
because no party requested findings and conclusions, we must uphold the trial court’s
order under any legal theory supported by the record. See id.
The State’s main argument is that because S.M.’s alcohol-concentration level
was noted on the plea agreement, he was punishable as a Class A misdemeanor DWI
defendant. The State asserts that we may infer S.M.’s knowledge that his DWI was so
11
punishable by his failure to make a contrary notation on the plea agreement as he had
on other notations.5 At the time S.M. pleaded guilty before the trial court, he
specifically pleaded to a Class B misdemeanor, which the plea agreement noted was a
lesser-included offense and had a Class B punishment range. The trial court’s docket
sheet, which was signed by the trial judge and S.M., noted that S.M. was charged with
“Driv W/Intox-Bac [breath-alcohol concentration] O/0.15”; however, the docket
sheet also specified that “Defendant Pled Guilty To Count One, A Class B
Misdemeanor. . . . Pled to Lesser Included Offense: Driving While Intoxicated, Class
B Dwi.” Several sentencing recommendations were listed on the plea agreement,6
including that S.M. perform forty hours of community service, participate in a victim-
impact panel, and receive some form of probated sentence. But these
recommendations and the State’s noted opposition to allowing S.M. to serve his
sentence on labor detail were apparently rejected because none were part of the trial
court’s sentence and judgment included in the clerk’s record.
The State asserts that the trial court implicitly “found” that S.M.’s alcohol-
concentration level was 0.17 because it required S.M. as part of his sentence to put an
5
The plea agreement contains several handwritten notations but there is no
evidence who made the 0.17 notation.
6
S.M.’s plea was styled as an “open plea,” which in this instance indicated that
the State and S.M. had entered into a charge bargain, not a sentence bargain. See
generally Harper, 2019 WL 165986, at *2–3 (noting imprecision of “open plea” and
defining charge and sentence bargains).
12
interlock device on his car, which the State contends with no supporting authority is
“common[ly]” imposed in Tarrant County only if the defendant’s alcohol-
concentration level is over 0.15. The only interlock-device requirement clearly
reflected in the record is the one imposed as a condition of S.M.’s occupational
license, not as part of his DWI sentence.7 “INTLK COP” was circled and checked
on the plea agreement, but the parties’ plea agreement was a charge bargain and not a
sentence bargain; and as we noted before, the trial court seemingly rejected other
noted recommendations. Further, even if the trial court required S.M. to install an
interlock device as part of his sentence, there is no statutory limitation on the trial
court’s ability to impose an interlock-device requirement as part of a non-probated
DWI sentence. See Tex. Code Crim. Proc. Ann. art. 42.033(a); cf. id. art. 42A.408(b)
(formerly article 42.12, section 13(i)) (allowing court to impose interlock device as
community-supervision condition with no alcohol-content finding required).
Therefore, we disagree with the State that an interlock-device requirement “would not
be necessary” absent “a high breath test result,” rendering S.M. implicitly punishable
under section 49.04(d). See generally Janet Dewey-Kollen & Angela Downes, Shattering
Misconceptions About First-Time Drunk Driving Offenders, 42 Prosecutor 14, 18 (Jan.–Mar.
7
S.M. verified in his nondisclosure petition that he had an interlock device on
his car at that time, but there is no indication in the record why he had the device.
The State admitted S.M.’s lease for the device into evidence at the nondisclosure
hearing, but the handwritten information on the form is illegible. In his verified
petition for nondisclosure, S.M. stated that the lease was attached as Exhibit B to the
petition but that exhibit is not included in the clerk’s record.
13
2008) (noting research showing effectiveness of imposition of interlock-device
condition on first-time DWI offenders).
Again, this was a charge bargain, not a sentence bargain, and the trial court was
free to impose any sentence within the available punishment range for a Class B
misdemeanor and could attach any condition to that sentence allowed by statute. We
decline to impart conclusive meaning to the 0.17 note on the plea agreement such that
no matter what charge S.M. pleaded guilty to, S.M. could not seek nondisclosure
because the indicted offense fell within section 49.04(d). The State argues that S.M.
“accepted the benefit” of the plea agreement, but so did the State. We do not believe
the State can offer to proceed on a lesser-included offense that is eligible for
nondisclosure and later oppose nondisclosure based on the greater, indicted offense,
especially when the 0.17 notation on the charge bargain is not tethered to and is not
reflected in the admonished punishment range or the trial court’s judgment. See
generally Ex parte De Leon, 400 S.W.3d 83, 89 (Tex. Crim. App. 2013) (holding terms of
plea agreement determined based on written agreement and “formal record,”
implying terms only as necessary to “effectuate the intention of the parties”). The
record here does not show that at the time he pleaded guilty under a charge bargain,
S.M. was punishable as a Class A misdemeanor DWI defendant based on his alcohol-
concentration level. See generally Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex.
1990) (per curiam) (“The burden is on the appellant to see that a sufficient record is
presented to show error requiring reversal.”). Clearly, S.M. was convicted of an
14
offense under section 49.04, but he was not convicted of an offense that was
punishable under section 49.04(d). S.M. was, therefore, eligible to seek a
nondisclosure order under the plain terms of the statute. See Tex. Gov’t Code Ann.
§ 411.0736(a)(1).
The State contends that this conclusion ignores the legislative bill analyses that
show the legislature’s intent to not allow defendants such as S.M. to be eligible for
nondisclosure. The supreme court has clearly held that the surest way to deduce
legislative intent in enacting an unambiguous statute8 is its plain language:
To the extent our objective in construing a statute is to determine the
legislature’s intent, we discover that intent within the language the
legislature enacted. A statute’s unambiguous language ‘is the surest guide
to the Legislature’s intent,’ because ‘the Legislature expresses its intent by
the words it enacts and declares to be the law.’
D.A., 2018 WL 6713207, at *7 (citations omitted) (quoting Sullivan v. Abraham,
488 S.W.3d 294, 299 (Tex. 2016) and Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex.
2011)). We decline the State’s invitation to determine legislative intent from section
411.0736’s bill analyses, floor debates, or other extratextual aids.
Because S.M. pleaded guilty to Class B misdemeanor DWI and was
admonished as such, S.M. was not punishable under section 49.04(d) at the time he
pleaded guilty and was subject to punishment. Therefore, section 411.0736 did not
No party argues that section 411.0736 is ambiguous, and we conclude that it is
8
not. Indeed, the State concedes that “the applicable nondisclosure statute is
unambiguous,” and S.M. agrees.
15
preclude S.M. from seeking nondisclosure. Cf. McMullen v. State, No. 2-08-059-CR,
2009 WL 976011, at *1 (Tex. App.—Fort Worth Apr. 9, 2009, no pet.) (mem. op., not
designated for publication) (concluding defendant’s guilty plea was voluntary because
he pleaded to Class B misdemeanor DWI under plea-bargain agreement where the
State agreed to waive the section 49.04(c), open-container enhancement and trial court
admonished him of correct minimum range of punishment for Class B misdemeanor
DWI with no open-container enhancement).
IV. CONCLUSION
The evidence adduced at the nondisclosure hearing sufficiently shows an
amount in controversy that meets this court’s constitutional and statutory grant of
general jurisdiction. We overrule S.M.’s jurisdictional argument. Nothing in the
governing statutes indicates that S.M.’s alleged failure to meet the waiting-period
requirement was jurisdictional in the trial court. Accordingly, the State’s failure to
raise this issue in the trial court results in waiver of its appellate waiting-period
complaint. We overrule the State’s second issue. Finally, because S.M. pleaded guilty
to Class B misdemeanor DWI and was admonished as such, he was at that time
punishable under section 49.04(b) and was subsequently eligible to seek nondisclosure
of his criminal-history record information. The plain language of section 411.0736
does not dictate a different result. Thus, we defer to the trial court’s ruling on these
legal bases, which are supported by the record, and conclude that the trial court did
not abuse its discretion—or did not err to the extent its ruling turned on a question
16
of law—by granting S.M.’s nondisclosure petition. We overrule the State’s first issue.
Having overruled all issues raised for our consideration, we affirm the trial court’s
June 28, 2018 order of nondisclosure.
/s/ Lee Gabriel
Lee Gabriel
Justice
Delivered: March 14, 2019
17