Ex Parte Argentina Marie Kapp ( 2010 )

MEMORANDUM OPINION
No. 04-10-00264-CV
EX PARTE KAPP
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-01221
Honorable Larry Noll, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: November 24, 2010
REVERSED AND RENDERED
This appeal arises from a trial court’s order expunging Argentina Marie Kapp’s records.
The Bexar County District Attorney’s Office contends that the trial court erred because each of
Kapp’s arrests resulted in a final conviction. We reverse the order of the trial court and render
judgment denying expunction.
BACKGROUND
Kapp was arrested and convicted five times in her youth for several offenses: (1) driving
while intoxicated in 1977; (2) disorderly conduct in 1979; (3) driving while intoxicated in 1985;
(4) driving while intoxicated in 1986; and (5) failure to present identification in 1990. Kapp
filed a petition for expunction in 2010.
04-10-00264-CV
At the hearing on her petition, Kapp testified to the convictions, stated that they
prevented her from traveling to Canada to visit loved ones, and implored the court to expunge
her record. The court granted her request over the Bexar County District Attorney’s objection
that the expunction statute does not permit expunction of arrests resulting in convictions.
A. Standard of Review
An appellate court reviews a trial court’s grant of an expunction for an abuse of
discretion. Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex. App.—San Antonio 2001, no pet.). A
trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any
guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985). Accordingly, an appellate court must reverse an order granting an expunction if the
applicant fails to meet the statutory requirements. See State v. Beam, 226 S.W.3d 392, 393–95
(Tex. 2007).
B. Kapp Failed to Meet the Statutory Requirements for an Expunction
Expunction is a statutory privilege governed by article 55.01 of the Texas Code of
Criminal Procedure, which provides that an arrested person is entitled to have the records of an
arrest expunged if (1) she was acquitted or pardoned; or (2) there was no indictment or the
indictment was dismissed, and several other requirements are met, including that the applicant
was not convicted. TEX. CODE CRIM. PROC. ANN. art. 55.01 (West 2006 & Supp. 2010). The
purpose of the expunction statute is to allow the record of a wrongful arrest to be expunged, not
to allow a person who was convicted to expunge the record of a righteous arrest. See Harris
County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). Thus, the statute does
not permit an expunction of records relating to a conviction unless the conviction was pardoned.
See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1) & 55.01(2)(B). A court has no equitable
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power to extend the expunction statute. Smith v. Millsap, 702 S.W.2d 741, 743 (Tex. App.—San
Antonio 1985, no writ). The record shows that all of Kapp’s arrests resulted in convictions, and
Kapp does not argue that she is otherwise entitled to the expunction. Thus, Kapp was not
entitled to an expunction of records related to her prior convictions.
CONCLUSION
Because Kapp was ineligible to have her prior convictions expunged, the trial court
abused its discretion and its judgment is, therefore, reversed. This holding applies to all agencies
addressed in the expunction order because they are interwoven and have identical interests for
the purposes of maintaining criminal records. See Ex parte Elliot, 815 S.W.2d 251, 252 (Tex.
1991).
Rebecca Simmons, Justice
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