Texas Department of Public Safety v. Armendariz, David

NUMBER 13-99-173-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

________________________________________________________________________

TEXAS DEPARTMENT OF PUBLIC SAFETY

, Appellant,

v.

DAVID ARMENDARIZ

, Appellee.

________________________________________________________________________

On appeal from the 107^th District Court of Cameron County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Yañez Opinion by Chief Justice Seerden

This is an appeal from the trial court's expunction order related to the arrest of David Armendariz, appellee, on August 7, 1997.

Armendariz was arrested for misdemeanor assault. Tex. Pen. Code Ann. §22.01(a) (Vernon 1999). Armendariz pleaded no contest to the charge on May 1, 1998, in county court at law number two of Cameron County, and received deferred adjudication, which required him to, among other things, report to a supervision officer. The deferred adjudication extended from May 1, 1998 until November 1, 1998. On September 18, 1998, Armendariz filed a Petition for Expunction of Records in the 107th District Court of Cameron County. On October 28, 1998, the Cameron County District Attorney filed its original answer in the proceeding, generally denying all of the allegations set forth in Armendariz's petition. Similarly, on November 2, 1998, the Texas Department of Public Safety ("TDPS"), appellant, filed its original answer, also generally denying all of the allegations in Armendariz's petition. A hearing on Armendariz's petition was held on January 25, 1999. At the conclusion of that hearing, the trial court signed an order providing that any record of Armendariz's arrest be expunged.

On March 5, 1999, the trial court filed its findings of fact and conclusions of law. In pertinent part, the court found that it had jurisdiction over the adjudication of Armendariz's petition; that Armendariz went to court on the assault charge on May 1, 1998; and that the county court at law number two of Cameron County dismissed Armendariz's case on September 10, 1998. The court concluded that Armendariz was wrongfully arrested in this case due to either an accident or mistake and that Armendariz was not involved in the assault which provided the basis for his arrest.

The code of criminal procedure delineates the method by which expunction may be accomplished. Article 55.01 of the code of criminal procedure provides, in pertinent part:

(a) A person who has been arrested for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if:

* * *

(2) each of the following conditions exist:

(A) an indictment or information charging him with commission of a felony has not been presented against him for an offense arising out of the transaction for which he was arrested or, if an indictment or information charging him with commission of a felony was presented, it has been dismissed and the court finds that it was dismissed 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 it was void;

(B) he 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 probation under Article 42.12, Code of Criminal Procedure, nor a conditional discharge under Section 481.109, Health and Safety Code; and

(C) he has not been convicted of a felony in the five years preceding the date of the arrest.

Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon 1999).

In its third and fourth issues, TDPS contends that article 55.01(a)(2)(B) precludes the possibility that an individual who has been placed on deferred adjudication for an offense may subsequently have his record expunged. See Tex. Code Crim. Proc. Ann. art 42.12, §5 (Vernon 1999). Several courts, including this one, have previously concluded that deferred adjudication probation constitutes "court ordered probation" for the purposes of article 55.01(a)(2)(B).⁽¹⁾ See Texas Dept. of Pub. Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.--Corpus Christi 1997, no writ); see also Texas Dept. of Pub. Safety v. Moran, 949 S.W.2d 523, 527 (Tex. App.--San Antonio 1997, no pet.); State v. Knight, 813 S.W.2d 210, 212 (Tex. App.--Houston [14th Dist.] 1991, no writ); Texas Dept. of Pub. Safety v. P.E., 794 S.W.2d 604, 608 (Tex. App.--Austin 1990, no writ). This conclusion has obtained even when the conditions of deferred adjudication probation are minimal. P.E., 794 S.W.2d at 608 (no requirement that petitioner report to probation officer or pay monthly probation fee). A petitioner who has been placed on deferred adjudication is not eligible for expunction. Butler, 941 S.W.2d at 321.  Even after completing deferred adjudication probation and obtaining the consequent dismissal, the bar to expunction persists. Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991).

Here, the record conclusively establishes that Armendariz was placed on deferred adjudication. The record of the hearing on the motion to expunge Armendariz's record shows that the county court at law number two subsequently dismissed the charges against Armendariz. Dismissal is concomitant with the imposition of deferred adjudication. See Tex. Code Crim. Proc. Ann. art. 42.12, §5(c) (Vernon 1999) (upon completion of community supervision period, judge shall dismiss the proceedings against the defendant and discharge him). We find nothing in the record which vitiates the fact that Armendariz was placed on court ordered probation, as that term is defined in article 55.01(a)(2)(B). We hold that Armendariz was not eligible for expunction. TDPS's third, fourth, and fifth⁽²⁾ issues are sustained.

Furthermore, TDPS argues in its sixth and seventh issues that there is no evidence in the record to substantiate the third evidentiary element required for expunction: that the petitioner has not been convicted of a felony in the five years preceding the date of the arrest. Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C) (Vernon 1999). Expunction is a civil proceeding. Butler, 941 S.W.2d at 320. The burden of proving all of the elements necessary for expunction falls on the petitioner. Ex Parte Scott, 818 S.W.2d 226, 227 (Tex. App.--Corpus Christi 1991, no writ). The record reflects that Armendariz included a statement in his petition that he had met the requirement in subsection (C), but all allegations in his petition were generally denied by the State. Tex. R. Civ. P. 92. At the expunction hearing, Armendariz did not adduce any evidence to substantiate his pleadings on this matter. See Tex. R. Civ. P. 92; Moran, 949 S.W.2d at 526. Thus, we find that there was no evidence to show that Armendariz had not been arrested for a felony offense in the five years preceding the date of the arrest for which he seeks expunction. TDPS's sixth and seventh issues are also sustained.

In a similar regard, by its first and second issues, TDPS argues that Armendariz did not prove that the offense for which he was arrested occurred in Cameron County, the county in which Armendariz sought expunction. A petitioner who files for expunction under article 55.01(b) "may file an ex parte petition for expunction in a district court for the county in which the person was arrested or in the county where the offense was alleged to have occurred." Tex. Code Crim. Proc. Ann. art. 55.02, §2(a) (Vernon 1999). In Moran, the court of appeals held that a petitioner must prove the county of his arrest as one of the elements required for expunction. Moran, 949 S.W.2d at 526. In that case, Moran had filed a verified petition alleging that he was arrested in Bexar County, but TDPS filed a general denial. Moran did not adduce any further evidence regarding the county of his arrest and the court held that he had failed to establish this element. Id. The present case is indistinguishable from Moran in that regard. We sustain TDPS's first and second issues.

In light of our holding, we need not reach TDPS's eighth issue regarding notice of the January 25, 1999 hearing. Tex. R. App. P. 47.1.

The court's expunction order is REVERSED and judgment is RENDERED denying Armendariz's petition for expunction. Pursuant to DPS' request, we also order all documents that were turned over to the court or Armendariz be returned to the submitting agencies.

ROBERT J. SEERDEN, Chief Justice

Do not publish

.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 27th day of July, 2000.

1. TDPS asserts in its fifth issue that, because Armendariz was arrested after September 1, 1989, and assessed deferred adjudication after that date, he is equally not eligible for expunction. This distinction is important only because article 55.01 was revised on September 1, 1989 to include what is now section (a)(2)(B). See Texas Dept. of Pub. Safety v. Moran, 949 S.W.2d 523, 527 (Tex. App.--San Antonio, 1997, no pet.). The Moran court determined that the revised provisions of article 55.01 make all persons placed on deferred adjudication after September 1, 1989 automatically ineligible for expunction under the now-current provisions of article 55.01. We have reached the same conclusion. See Texas Dept. of Pub. Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.--Corpus Christi 1997, no writ).

2. See supra note 1.