G. R. v. Texas Department of Public Safety ( 2020 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-20-00090-CV
G. R., Appellant
v.
Texas Department of Public Safety, Appellee
FROM THE 450TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-EX-19-000928, THE HONORABLE BRAD URRUTIA, JUDGE PRESIDING
MEMORANDUM OPINION
G.R., appearing pro se,1 appeals from the denial of his petition for an expunction.
See Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(ii)(c) (allowing expunction of certain charges
upon completion of a “pretrial intervention” program and subsequent dismissal of the charges).
We will affirm.
BACKGROUND
In October of 2017, officers from the Austin Police Department arrested G.R. for
a prostitution offense. See Tex. Penal Code § 43.02(c-l). He subsequently completed what he
describes as a “john school” intervention program operated by the Travis County commissioners
1 G.R. has filed a brief that includes only a cursory overview of his arguments and
related authority. We will address his arguments to the extent we can discern them. See Tex. R.
App. P. 38.1(i); United Copper Indus., Inc. v. Grissom, 17 S.W.3d 797, 805 n.6 (Tex. App.—
Austin 2000, pet. dism’d) (holding pro se litigants to same standards as litigants represented by
counsel).
court. Upon completion of that program, prosecutors moved to have the charges dismissed, and
the trial court dismissed the charges.
G.R. then filed a petition for expunction in a Travis County district court, alleging
that he is eligible for expunction under article 55.01(a)(2)(A)(ii)(c), which provides, “A person
who has been placed under a custodial or noncustodial arrest for commission of either a felony or
misdemeanor is entitled to have all records and files relating to the arrest expunged” if the
charges were dismissed because the person “completed a pretrial intervention program
authorized under Section 76.011, Government Code, other than a veterans treatment court
program created under Chapter 124, Government Code, or former law, or a mental health court
program created under Chapter 125, Government Code, or former law.” The district court held a
hearing on the petition. There is no record of that hearing or of any evidence the litigants might
have presented during the hearing because G.R., when asking the district court’s clerk to prepare
a record for appeal, indicated that a reporter’s record was “not necessary.”2 After the hearing,
the district court denied the petition. G.R. then perfected this appeal.
DISCUSSION
G.R. challenges the denial of his petition, arguing, “The court didn’t correctly
follow the statute but instead denied G.R.’s petition for expunction on a statement and lack of
evidence . . . .” We review a trial court’s ruling on a petition for expunction for an abuse of
discretion. Heine v. Texas Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002,
pet. denied). A court abuses its discretion if it acts unreasonably or arbitrarily or acts without
2 When requesting the record from the clerk’s office, G.R. asked for a clerk’s record but
not a reporter’s record, explaining that a “reporter’s record is not necessary for this appeal
because this is an appeal based on Statutory Interpretation.”
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regard to governing legal principles. Travis Cty. Dist. Att’y v. M.M., 354 S.W.3d 920, 922 (Tex.
App.—Austin 2011, no pet.). In determining whether there was an abuse of discretion, we look
only to the evidence before the trial court when the trial court rendered its decision. In re N.V.R.,
580 S.W.3d 220, 226 (Tex. App.—Tyler 2019, pet. denied).
“Although section 55.01, the expunction statute, is included in the code of
criminal procedure, an expunction proceeding is a civil proceeding; thus, the petitioner carries
the burden of proving compliance with the statutory requirements.” Heine, 92 S.W.3d at 646
(citing Ex parte Guajardo, 70 S.W.3d 202, 205 (Tex. App.—San Antonio 2001, no pet.), and
Kendall v. State, 997 S.W.2d 630, 631 (Tex. App.—Dallas 1998, pet. denied)). “The petitioner
is entitled to expunction only if all of the statutory requirements have been satisfied.” Id. (citing
Quertermous v. State, 52 S.W.3d 862, 864 (Tex. App.—Fort Worth 2001, no pet.)). As relevant
here, those requirements include that (1) eligible charges (2) were dismissed or quashed
(3) because the petitioner completed a qualifying pretrial intervention program. See Tex. Code
Crim. Proc. art. 55.01(a)(2)(A)(ii)(c).
In this case, G.R. has not shown how the district court abused its discretion by
denying the petition for expunction. To the contrary, the record does not reflect that, at the time
of the ruling on his petition, G.R. had produced any evidence that he meets the statutory
prerequisites for expunction. G.R. argues that the district court erroneously failed to consider
evidence submitted with his petition for expunction, but the record reflects no evidence appended
to that petition. A letter from the clerk of court indicates that G.R. appended certain documents
to a proposed order; however, the clerk of court also reports that those documents were not
before the court when the petition was adjudicated. G.R. appended several documents to his
appellant’s brief, but those documents are not part of the record on appeal. See Bencon Mgmt. &
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Gen. Contracting, Inc. v. Boyer, Inc., 178 S.W.3d 198, 210 (Tex. App.—Houston [14th Dist.]
2005, no pet.) (“The attachment of documents as exhibits or appendices to briefs is not formal
inclusion in the record on appeal and, therefore, the documents cannot be considered.” (citing
Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.—Houston [14th Dist.] 2002, no pet.))).
And to the extent G.R. argues that certain evidence was properly before the district court but was
not preserved by reporter’s record, we would deem that argument waived by G.R.’s decision not
to request a reporter’s record. See Tex. R. App. P. 37.3(c)(1) (establishing waiver for failure to
request); In re K.K., No. 02-17-00357-CV, 2018 WL 1630767, at *3 (Tex. App.—Fort Worth
Apr. 5, 2018, no pet.) (mem. op.) (“Appellants bear the burden to present a record showing error
requiring reversal.”); In re Berry, 105 S.W.3d 665, 667 (Tex. App.—Beaumont 2003, no pet.)
(“Where a reporter’s record is not requested . . . we presume that sufficient evidence was
introduced to support the findings and the judgment.” (citation omitted)).
In short, G.R. has not identified any authority allowing a trial court to grant a
petition for expunction in absence of evidence the statutory requirements are satisfied. Instead,
courts require strict compliance with the provisions of the statute. See, e.g., Collin Cty. Criminal
Dist. Att’y’s Office v. Dobson, 167 S.W.3d 625, 627 (Tex. App.—Dallas 2005, no pet.). We
must assume that the district court acted in accordance with governing legal principles in
denying the petition for an expunction, see Berry, 105 S.W.3d at 667, and we will affirm on
that basis.
CONCLUSION
We affirm the district court’s order denying the petition for an expunction.
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__________________________________________
Edward Smith, Justice
Before Justices Goodwin, Kelly, and Smith
Affirmed
Filed: August 26, 2020
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