Untitled Texas Attorney General Opinion ( 1988 )

THE ATTORNEY GENERAL
OF TEXAS
June 1, 1988
Honorable Jimmy F. Davis opinion No. JR-912
Castro County District Attorney
Castro County Courthouse Re: Expungement of criminal
Dimmitt, Texas 79027-2689 convictions under certain
provisions of the Texas
Code of.Criminal Procedure
(RQ-1325)
Dear Mr. Davis:
You ask:
1. Under Article 45.54, Texas Code of
Criminal Procedure, as amended by S.B. 1422,
- is a Justice of the Peace Court prohibited
from expunging its own records or must an
affected individual file suit in a District
Court under Article 55.01, Texas Code of
Criminal Procedure?
2. Under Article 45.54, Texas Code of
Criminal Procedure, as amended by S.B. 1422,
does a conviction result for purposes of the
Texas Driver's License law under Article
668733, Section 22, whenever the procedures of
Article 45.54, Texas Code of Criminal
Procedure, are applied to a traffic offense
in the Justice of the Peace Court?
3. Should the Texas Department of Public
Safety record a conviction in the applicable
driver's license records of an individual who
has been placed under the terms and
obligations of Article 45.54, Texas Code of
Criminal Procedure, as amended by S.B. 1422,
P since a dismissal and/or expungement could
result within 180'days or thereafter?
Article 45.54 of the Code of Criminal Procedure
provides in pertinent part:
p. 4550
Honorable Jimmy F. Davis - Page 2 (JM-912)
1. Upon conviction of the defendant of a
misdemeanor punishable by fine only, other
than a misdemeanor disposed of by Section
143A, Uniform Act Regulating Traffic
Highways (Article 6701d, V.T.C.S.),l tit:
justice may suspend the imposition of the
fine and defer final disposition of the case
for a period not to exceed 180 days.
[Section (2) sets forth conditions that the
justice may require the defendant to meet
during the deferral period.]
3. At the conclusion of the deferral
period, if the defendant presents satis-
factory evidence that he has complied with
the requirements imposed, the justice may
dismiss the complaint. Otherwise, the
justice may reduce the fine assessed or may
then impose the fine assessed. If the
complaint is dismissed, a special expense not
to exceed the amount of the fine assessed may
be imposed.
4. Records relating to a complaint dis-
missed as provided by this article may be
expunged under Article 55.01 of this code.
In your first question you inquire whether a justice of
the peace may expunge the court's own records under section
(4) or, in the alternative, whether a defendant is required
to file suit in district court under article 55.01 of the
Code of Criminal Procedure.
Chapter 55 of the Code of Criminal Procedure addresses
the matter of expunction of criminal records. Article 55.01
lists circumstances under which an individual is entitled to
have "all records and files relating to the arrest
expunged." Article 55.02 sets forth the procedure for
expunction. The language in section l(a) of article 55.02
1. Section 143A of article 6701d, V.T.C.S., provides
that when a person is charaed with a misdemeanor under this -\
act, the court may defer proceedings to allow the person 90
days to present evidence that he has successfully completed
a defensive driving course. Upon compliance the court shall
dismiss the charge.
p. 4551
Honorable Jimmy F. Davis - Page 3 (JM-912)
appears to prompt your question relative to the court's
possessing jurisdiction to hear an expunction petition.
-/- Section l(a) states:
A person who is entitled to expunction of
records and files under this chapter mav file
an x D rt oetition for exnunction in a
dis&ictacotrt for the countv in which he was
srested(. (Emphasis added.)
In State v. Autumn Hills Centers. Inc., 705 S.W.2d 181
(Tex. App. - Houston [14th Dist.] 1985, no writ), the venue
and jurisdiction of's court to hear expungment cases was an
issue raised on appeal of that cause. In Autumn Hills the
court stated:
In their second point of error, appellants
argue that the expunction of the criminal
records was invalid because the Harris County
court did not have jurisdiction to hear the
case. Article 55.01 of the Code of Criminal
Procedure ar nt the riaht to exounae all
records re1ati.n: to an arrest under certain
conditions. Article 55.02 delineates the
procedure to be followed bv those who meet
the recuirements of 55.01. It provides in
part:
Sec. l(a) A person who is entitled to
expunction of records and files under this
chapter may file an ex parte petition for
expunction in a district court for the
countv n hich he was arrested.
(Emphasis'addei.)
Here the appellees were arrested in Galveston
County, but the expunction petition was filed
and granted in Harris County. Because of
this discrepancy, the expunction is invalid.
The riaht to exounction is neither a
common law nor a constitutional riaht. Cvrus
v. State, 601 S.W.ld 776 (Tex. Civ. App. -
Dallas 1980, writ ref'd n.r.e.); Texas
peoartment of Public Safetv v. Failla, 619
S.W.2d 215 (Tex. Civ. App. - Texarkana 1981,
no writ): Annot. 11 A.L.R. 4th 956 (1982).
Rather, it exists as a statutorv orivileae
which is aranted and. therefore, can be
limited bv the leaislature. Where a cause of
p. 4552
Honorable Jimmy F. Davis - Page 4 (JM-912)
action is derived solelv bv statute. the
statutorv orovisions are mandatorv and
exclusive and must be COmDlied with or the
action is not maintainable. Schwartz V.
Texas Denartment of Public Safetv 415 S.W.2d
12 (Tex. Civ. App. - Waco 1967: no writ);
Me&da v. Texas i&icioal Retirement Svstem,
597 S.W.Zd 55 (Tex. Civ. ADD. - Austin 1980,
no writ): Rowden v. Texas-Catastroohe ProDi
ertv Insurance Association, 677 S.W.Zd 83
(Tex. App. - Corpus Christi [13th Dist.]
1984, writ ref'd n.r.e.). Where a statutorv
privileae exists, it lies within the Dower of
the leaislature to desianate a oarticular
court as the exclusive tribunal to hear the
matter. Winaus
' v. Wadlev, 115 Tex. 551, 285
S.W. 1084 (1926): mha Petroleum Co. v.
Terrell, 122 Tex. 257, 59 S.W.2d 364 (1933).
Appellees did not adhere strictly to the
requirements of Section 55.02.
Aooellees aroue that the word 'mav'
creates a nennissive venue statute. and
therefore, the aeneral rules of venue allow
the oetition to be filed in the countv where
the aonellees resided. Exnunction of a
sirnina record is not a common-law riaht.
Therefore, the statutorv desianation of venue
.iS mandatorv and confers exclusive
iurisdiction. McGreaor v . Clawson, 506
S.W.2d 922 (Tex. Civ. App. - Waco 1974, no
writ): Po vner v. Bowie Indeoendent School
Dist., 627 S.W.2d 517 (Tex. App. - Fort Worth
[2nd Dist.] 1982, no writ). The second point
of error is sustained. (Emphasis added.)
705 S.W.2d 181, 182-83 (Tex. APP- - Houston [14th Dist.]
1985.
The holding in Autumn Hills is that expunction is a
statutory privilege, and compliance with the statute is
mandatory. It follows that a petitioner seeking expunction
under article 55.01 must comply with the requirements
delineated in article 55.02 by filing a petition in the
district court in the county in which the defendant was
arrested. We do not address here any issue regarding record
retention by a governmental body.
p. 4553
.
Honorable Jimmy F. Davis - Page 5 (JM-912)
you ask whether a conviction results for purposes of
section 22 of article 6687b, V.T.C.S., when the procedures
-- outlined in article 45.54 are applied. Section 22 of
article 6687b provides the procedure for suspension of a
license to operate a motor vehicle following a hearing in
which it has been determined that the holder of a license
comes within any of the provisions which may authorize such
suspensions. Undoubtedly, you are referring to the
provision where by suspension is authorized because an
operator comes within the definition of a habitual violator
as the result of the number of convictions arising over a
stated period of time.
In Attorney General Opinion JM-526 (1986), it was noted
that article 45.54 enables 'Ia 'justice' to make a form of
probation available to defendants convicted of offenses with
a maximum punishment of a fine not to exceed $200, i.e.
Class C misdemeanors." Like our probation statute for
higher grades of offenses, article 45.54 provides that ppg~
conviction of the defendant the "justice" may suspend the
imposition of the penalty and "defer final disnosition of
the case." (Emphasis added.) m Code of Crim. Proc. art.
42.12. We believe there is an analogy in convictions
C utilized for the purpose of suspension of licenses under
section 22 of article 668713, V.T.C.S., and convictions used
for enhancement of punishment for habitual offenders under
articles 12.42 (felony) and 12.43 (misdemeanor, class A and
B) of the Penal Code. It is "well established" that a
conviction is not final for enhancement oft punishment under
our habitual offender statutes where there has been a
probation granted, deferring or suspending imposition of
punishment. & D rte Murchison 560 S.W.2d 654 (Tex. Crim.
APP. 1978, no pzt.). Where probation is revoked and a
penalty imposed, the judgment of conviction has then become
final (absent appeal) for purposes of enhancement of
punishment. Ex carte Wurchison. While section 22 of
article 6687b does not provide any express requirement that
convictions must be reflected in the final judgment, it is
unreasonable to think that the legislature intended that a
conviction could be utilized under the habitual violator
statute where there might be a dismissal or expungment of
the case within 180 days. Thus, when the penalty assessed
in an article 45.54 proceeding has been deferred, such con-
viction may not be used in proving a conviction under
n section 22 of article 66872, until such time as the fine has
been imposed and there is a final judgment in the case. In
the event the complaint is dismissed or records of the
arrest expunged, there is nothing available for the purpose
of proving a conviction under the habitual violator
I-- provisions of article 6687b.
p. 4554
Honorable Jimmy F. Davis - Page 6 (JM-912)
In your final question, you ask whether the Texas
Department of Public Safety should record a conviction in
its driver's license records of a person who has been -,
convicted of a class C misdemeanor and has had his penalty
deferred pursuant to article 45.54. Section 152 of article
6701d requires a judge to report a conviction under the
Uniform Act Regulating Traffic on Highways "within ten days
after conviction" to the Department of Public Safety.
Section 152 further provides that the department shall keep
all such records at its main office. The failure of any
judicial officer to comply with the reporting requirement
"shall constitute misconduct in office and shall be grounds
for removal therefrom."
A prior criminal record as defined by section 3(a) of
article 37.07 of the Code of Criminal Procedure includes *Ia
probated or suspended sentence that has occurred prior to
trial." The courts have held that a prior conviction for
which the defendant received a probated sentence is
admissible as part of the defendant's criminal record at the
punishment phase of the trial, even though the conviction
had been set aside following the successful completion of
probation. Vauahn v. State, 634 S.W.2d 310 (Tex. Crim. App.
1982, no pet.); Wavs v. Estell 505 F.2d 116 (5th Cir.
1974). In Attorney General Opinion JM-526 (1986), it was
stated that 'Iaperson must be convicted before article 45.54
of the Code of Criminal Procedure is applicable." It is our
opinion that even though the punishment has been deferred
,under article 45.54, the conviction should be recorded by
the Department of Public Safety. In the event there has
been a deferral of the fine under article 45.54, the records
should reflect this fact. In the event of an expunction,
the use of the record for an purpose is prohibited under
section (1) of article 55.03. Y
2. Section (2) of article 55.03 states that the
petitioner may deny the occurence of arrest following
expunction except as provided in section (3). Section (3) -,
states that when a person is under oat~h in a criminql
proceeding and is questioned about an arrest where the
records have been expunged, he may "state only .that the
matter in qiestion has been expunged."
p. 4555
,
Honorable Jimmy F. Davis - Page 7 (JM-912)
SUMMARY
-- A person seeking expunction of records
relating to a. complaint dismissed under
article 45.54 of -~~
"the Code of Criminal
Procedure must comply with the requirements
delineated in article 55.02 of the Code of
Criminal Procedure by filing a petition in
the district court in the county in which the
defendant was arrested. When the penalty
assessed in an article 45.54 proceeding has
been deferred, such conviction may not be
used in proving a conviction under section 22
of article 6687b until such time as the fine
has been imposed and there is a final
judgment in the case. The Department of
Public Safety should record a conviction even
though the punishment has been deferred under
article 45.54 of the Code of Criminal
Procedure. The record should reflect the
fact that punishment has been deferred.
J ‘/r~h
Very truly yo r ,
&
JIM MATTOX
Attorney General of Texas
MARY KELL;ER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, opinion Committee
Prepared by Tom G. Davis
Assistant Attorney General
p. 4556