Texas Department of Public Safety v. Alberto Solis Lopez ( 2007 )

NUMBER 13-05-619-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant,

v.

ALBERTO SOLIS LOPEZ, Appellee.

On appeal from the 357th District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Rodriguez

This is an appeal of an order of expunction. Appellee, Alberto Solis Lopez, petitioned the trial court to expunge records of his arrest for aggravated assault. The charge for aggravated assault was later dismissed and refiled as a Class A misdemeanor. The trial court granted the expunction. The Texas Department of Public Safety (the Department) appeals from that order.

By a single issue, the Department contends the court erred in granting expunction because Lopez admitted he was placed on probation as a result of an arrest and, thus, cannot prove that all statutory conditions have been met. See Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon 2006). We reverse and render.  

I. Background ⁽¹⁾

Lopez petitioned the trial court to expunge records of his arrest for aggravated assault, which was re-filed as a misdemeanor assault. Lopez admits in his petition that he did "plead in County Court and was sentenced to twelve months deferred adjudication." The Cameron County Criminal District Attorney and the Department answered and specifically complained that Lopez was not entitled to expunge these records because he served probation. Lopez amended his petition, but continued to assert that he did "plead in County Court and was sentenced to twelve months deferred adjudication." At the hearing on his petition, after Lopez admitted he served probation as a consequence of his arrest, the trial court granted the expunction.

II. Standard of Review and Relevant Case Law

We review a trial court's ruling on a petition for expunction under an abuse-of-discretion standard. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.-Austin 2002, pet. denied). A trial court abuses its discretion if it acts without reference to guiding rules and principles or if its actions were arbitrary and unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

A petitioner is entitled to expunction only on proof of satisfaction of each statutory requirement found in article 55.01 of the Texas Code of Criminal Procedure. See Tex. Dep't of Pub. Safety v. Williams, 76 S.W.3d 647, 650 (Tex. App.-Corpus Christi 2002, no pet.); see also See Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon 2006). When an individual has been placed on deferred-adjudication community supervision for an offense, the records pertaining to that offense are not eligible for expunction. Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B) (Vernon 2006); see id. at art. 42.12, § 5 (Vernon 2006). It is well settled that deferred-adjudication community supervision constitutes "court ordered probation" for the purposes of article 55.01(a)(2)(B). See Tex. Dep't of Pub. Safety v. Butler, 941 S.W.2d 318, 321 (Tex. App.-Corpus Christi 1997, no writ); see also Tex. Dep't of Pub. Safety v. Moran, 949 S.W.2d 523, 527 (Tex. App.-San Antonio 1997, no writ); Tex. Dep't of Pub. Safety v. P.E., 794 S.W.2d 604, 608 (Tex. App.-Austin 1990, no writ). This bar to expunction remains even if the deferred-adjudication community supervision has been completed and consequent dismissal obtained. Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991).

III. Analysis

By a single issue, the Department contends that because Lopez admitted he was placed on probation as a result of an arrest, he is not entitled to an expunction of records related to that arrest. We agree. Lopez's statement that he completed his twelve months deferred adjudication probation is a judicial admission, see Mendoza v. Fidelity & Guar. Ins., 606 S.W.2d 692, 694 (Tex. 1980) (describing a judicial admission), and conclusively establishes he suffered probation as a consequence of the arrest he desires to expunge.

Texas courts have uniformly held the expunction statute was not intended to allow a person who is arrested, pleads to an offense, and receives probation pursuant to a plea, to expunge arrest and court records concerning that arrest. In this case, Lopez was arrested for aggravated assault, was charged and pleaded to a misdemeanor, and received deferred adjudication probation. Because he was placed on probation under article 42.12, he is not entitled to expunge records related to this arrest and probation. Tex. Code Crim. Proc. art. 55.01(a)(2)(B) (Vernon 2006); Butler, 941 S.W.2d at 321. The trial court abused its discretion when it entered an order expunging Lopez's records because Lopez did not establish each statutory requirement set out in article 55.01 of the Texas Code of Criminal Procedure. We sustain the Department's sole issue.  

IV. Conclusion

Accordingly, we reverse the trial court's order and render judgment denying the expunction. Pursuant to the Department's prayer for relief, we order all documents that were turned over to the trial court or Lopez returned to the submitting agencies. See Ex parte Elliott, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of the order of expunction applies to all respondents, even if they did not participate in the appeal).

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 5th day of July, 2007.

1. The statement of facts set out in appellant's brief, if supported by record references, will be accepted as true unless another party contradicts them. Tex. R. App. P. 38.1(f). Because Lopez filed no brief, we will take as true the Department's fact statement that is supported by record references.