Ex Parte J.C.F., Jr. ( 2022 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-21-00085-CV
EX PARTE J.C.F. Jr.
From the 81st Judicial District Court, Atascosa County, Texas
Trial Court No. 20-07-0624-CVA
Honorable Walden Shelton, Judge Presiding 1
Opinion by: Patricia O. Alvarez, Justice
Sitting: Rebeca C. Martinez, Chief Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: March 9, 2022
REVERSED AND RENDERED
In this restricted appeal, the Texas Department of Public Safety argues the trial court erred
by granting J.C.F.’s petition for expunction because J.C.F. received court-ordered community
supervision. J.C.F. contends that (1) the Department did not qualify for a restricted appeal and
(2) because the trial court granted him judicial clemency, it could also order the records of his
arrest expunged. Because the Department met the requirements for a restricted appeal and the face
of the record shows J.C.F. was not entitled to have all records relating to his arrest expunged, we
reverse the trial court’s Order of Expunction and render judgment denying J.C.F.’s petition.
1
The Honorable Lynn Ellison is the presiding judge of the 81st District Court. The Honorable Walden Shelton, sitting
by assignment, signed the expunction order.
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BACKGROUND
In 2018, J.C.F. was arrested and charged by information with securing the execution of
documents by deception where the value of the pecuniary interest was more than $2,500 and less
than $30,000; the offense is a state jail felony. See TEX. PENAL CODE ANN. § 32.46.
In March 2019, J.C.F. pled nolo contendere, and the trial court 2 placed him on deferred
adjudication with a three-year period of community supervision, a fine of $2,000.00, court costs
of $220.00, and restitution of $20,193.74.
In May 2020, J.C.F. moved for early discharge from his community supervision. His
motion stated that he had immediately paid the entire amount for restitution and, over the ensuing
months, he paid all court costs, fees, and fines, and he successfully completed all the terms of his
community supervision. The trial court 3 granted J.C.F.’s motion and ordered his early discharge
from community supervision.
In July 2020, J.C.F. petitioned for expunction of all records and files relating to his arrest.
The trial court 4 granted his petition, and the Department filed this restricted appeal.
PARTIES’ ARGUMENTS
The Department argues J.C.F. was not entitled to expunction of the records relating to his
arrest because he did not meet the statutory requirements. Specifically, the trial court ordered
community supervision for J.C.F., and article 55.01(a)(2) excludes J.C.F. from the privilege of
expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). Therefore, the Department argues,
the trial court misconstrued the statute, and it erred when it granted J.C.F.’s petition for expunction.
2
The Honorable Russell Wilson, presiding judge of the 218th District Court, signed the March 25, 2019 order of
deferred adjudication.
3
The Honorable Lynn Ellison, presiding judge of the 81st District Court, signed the June 2, 2020 order of early
discharge from community supervision.
4
The Honorable Walden Shelton, a visiting judge, signed the October 27, 2020 expunction order.
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In response, J.C.F. contends that (1) the Department did not qualify for a restricted appeal
and (2) because the trial court granted him judicial clemency, it could also order the records and
files relating to his arrest expunged.
Before we address the order granting J.C.F.’s petition for expunction, we will address our
jurisdiction in this restricted appeal.
RESTRICTED APPEAL
A restricted appeal is a direct attack on a judgment or order which is available under certain
conditions. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per
curiam).
To sustain a proper restricted appeal, the filing party must prove: (1) she filed notice
of the restricted appeal within six months after the judgment was signed; (2) she
was a party to the underlying lawsuit; (3) she did not participate in the hearing that
resulted in the judgment complained of, and [she] did not timely file any post-
judgment motions or requests for findings of fact and conclusions of law; and (4)
error is apparent on the face of the record.
Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam) (citing Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004)); accord Ex parte E.H., 602 S.W.3d 486, 495 (Tex.
2020); see also TEX. R. APP. P. 30.
“[A]lthough the first three requirements for a restricted appeal are jurisdictional, the fourth
is not. An appellant who satisfies the first three requirements establishes the court’s jurisdiction
and must then establish error from the face of the record to prevail in the restricted appeal.” Ex
parte E.H., 602 S.W.3d at 497; accord Sherrard v. SignAd, Ltd., 637 S.W.3d 192, 195 (Tex.
App.—Houston [14th Dist.] 2021, no pet.).
Here, the record conclusively establishes the three jurisdictional requirements for a
restricted appeal. See Ex parte E.H., 602 S.W.3d at 497 (holding that only “the first three
requirements for a restricted appeal are jurisdictional”).
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First, the trial court signed the expunction order on October 27, 2020, and the Department
filed its notice of restricted appeal on March 10, 2021, which was within six months after the order
was signed. See Pike-Grant, 447 S.W.3d at 886.
Second, the Department was a party to the underlying lawsuit. See id.
And third, the Department did not participate in the hearing on J.C.F.’s petition for
expunction. See id.
We have jurisdiction in this appeal.
PETITION FOR EXPUNCTION
We turn now to the trial court’s order granting J.C.F.’s petition for expunction.
A. Standard of Review
“We review a trial court’s ruling on an expunction petition under an abuse-of-discretion
standard.” Ex parte E.H., 602 S.W.3d at 489; accord State v. T.S.N., 547 S.W.3d 617, 620 (Tex.
2018). However, “[u]nder the abuse of discretion standard, appellate courts afford no deference
to the trial court’s legal determinations because a court has no discretion in deciding what the law
is or in applying it to the facts.” T.S.N., 547 S.W.3d at 620; accord Ex parte E.H., 602 S.W.3d at
489 (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
B. Expunction as a Statutory Civil Remedy
“Expunction is a civil remedy governed by Article 55.01 of the Texas Code of Criminal
Procedure.” Ex parte R.P.G.P., 623 S.W.3d 313, 316 (Tex. 2021); accord Ex parte E.H., 602
S.W.3d at 489. Article 55.01(a) establishes specific requirements for the privilege:
(a) 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:
...
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(2) the person 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
community supervision under Chapter 42A for the offense . . . .
TEX. CODE CRIM. PROC. ANN. art. 55.01(a) (emphasis added); accord Ex parte R.P.G.P., 623
S.W.3d at 316.
To qualify for the privilege, the petitioner must prove he has met all the statutory
requirements. Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston
[14th Dist.] 2008, no pet.); Ex parte Guajardo, 70 S.W.3d 202, 205 (Tex. App.—San Antonio
2001, no pet.).
“Because the remedy is a privilege defined by the Legislature, and not a constitutional or
common-law right, the statutory requirements are mandatory and exclusive and cannot be
equitably expanded by the courts.” Ex parte R.P.G.P., 623 S.W.3d at 316; accord Ex parte E.H.,
602 S.W.3d at 489.
C. Discussion
The Department does not argue that the trial court lacked authority to grant “judicial
clemency” under article 42A.701, but it contends the trial court had no corresponding equitable
authority to grant J.C.F.’s petition for expunction. It insists that because the record conclusively
establishes that J.C.F. was subject to court-ordered community supervision, and article 55.01(a)(2)
expressly excludes from the expunction privilege anyone—such as J.C.F.—who was subject to
court-ordered supervision, the trial court erred when it granted J.C.F.’s petition for expunction.
We agree.
1. Grant of Judicial Clemency
In the hearing on J.C.F.’s request for early discharge from community supervision, the trial
court granted J.C.F.’s request, and then it added the following:
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I’m also going to grant you judicial clemency, which means that you will be
relieved of any liabilities that may result of—from being placed on deferred
adjudication.
And so, Probation Department, when you prepare his discharge order . . . check
off the right box on the termination order and you will have complied with my
granting of judicial clemency.
The trial court’s order discharged J.C.F. from community supervision and added the following:
The Court FURTHER ORDERS that the Defendant’s plea be withdrawn and the
verdict be set aside. The Court FURTHER ORDERS that the accusation,
complaint, information, or indictment be dismissed, and that the Defendant be
released from all penalties and disabilities resulting from the conviction or plea in
the case, except that (1) proof of the Defendant’s conviction or plea shall be made
known to the judge if the Defendant is convicted of any subsequent offense, and
(2) if the Defendant is an applicant for or the holder of a license issued by the
Department of Family and Protective Services (hereinafter “Department”), the
Department may consider the fact that the Defendant previously received probation
in issuing, renewing, denying, or revoking a license under Chapter 42, Human
Resources Code.
The order closely tracks the statutory language for “Reduction or Termination of Community
Supervision Period.” See TEX. CODE CRIM. PROC. ANN. art. 42A.701. 5
2. Effects of Grant
The judicial clemency provision releases a defendant “from all penalties and disabilities
resulting from the offense of which the defendant has been convicted or to which the defendant
5
The relevant portion reads as follows:
(f) If the judge discharges the defendant under this article, the judge may set aside the verdict or permit
the defendant to withdraw the defendant’s plea. A judge acting under this subsection shall dismiss the
accusation, complaint, information, or indictment against the defendant. A defendant who receives a
discharge and dismissal under this subsection is released from all penalties and disabilities resulting from
the offense of which the defendant has been convicted or to which the defendant has pleaded guilty,
except that:
(1) proof of the conviction or plea of guilty shall be made known to the judge if the defendant is
convicted of any subsequent offense; and
(2) if the defendant is an applicant for or the holder of a license under Chapter 42, Human Resources
Code, the Department of Family and Protective Services may consider the fact that the defendant
previously has received community supervision under this chapter in issuing, renewing, denying, or
revoking a license under Chapter 42, Human Resources Code.
TEX. CODE CRIM. PROC. ANN. art. 42A.701.
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has pleaded guilty.” See id.; State v. Brent, 634 S.W.3d 911, 916 (Tex. Crim. App. 2021); J.H.J.,
274 S.W.3d at 809. But the provision does not end there.
The remainder of the provision effectively prohibits expunction based on the judicial
clemency provision because it requires the arrest records to be maintained for at least two
instances. Cf. J.H.J., 274 S.W.3d at 808–09.
First, so that “proof of the conviction or plea of guilty [may] be made known to the judge
if the defendant is convicted of any subsequent offense.” TEX. CODE CRIM. PROC. ANN.
art. 42A.701(f)(1); see J.H.J., 274 S.W.3d at 809.
Second, so that “if the defendant is an applicant for or the holder of a license under Chapter
42, Human Resources Code, the Department of Family and Protective Services may consider the
fact that the defendant previously has received community supervision under this chapter in
issuing, renewing, denying, or revoking a license under Chapter 42, Human Resources Code.”
TEX. CODE CRIM. PROC. ANN. art. 42A.701(f)(2); see J.H.J., 274 S.W.3d at 809.
3. J.C.F. Excluded from Expunction Privilege
It was J.C.F.’s burden to prove he met the statutory requirements, see J.H.J., 274 S.W.3d
at 806; Ex parte Guajardo, 70 S.W.3d at 205, but he did not.
The face of the record shows J.C.F. received court-ordered community supervision, and
the expunction provision expressly excludes him from the privilege of expunction. See TEX. CODE
CRIM. PROC. ANN. art. 55.01(a)(2) (requiring, to obtain relief, that “there was no court-ordered
community supervision under Chapter 42A for the offense”); J.H.J., 274 S.W.3d at 809 (“[W]e
hold that a person’s release from the ‘penalties and disabilities’ of a criminal offense does not
entitle that person to expunction, which is a civil privilege granted to eligible citizens.”).
Nevertheless, the trial court granted J.C.F.’s petition. See Ex parte R.P.G.P., 623 S.W.3d
at 316 (citing Ex parte E.H., 602 S.W.3d at 489) (addressing expunction and stating that “the
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statutory requirements [under article 55.01] are mandatory and exclusive and cannot be equitably
expanded by the courts”). However, the trial court had no discretion “to extend the expunction
statute beyond its stated availability.” See J.H.J., 274 S.W.3d at 811; see also Ex parte E.H., 602
S.W.3d at 489 (no equitable expansion); T.S.N., 547 S.W.3d at 620.
Having reviewed the entire record, we conclude the trial court’s order granting J.C.F.’s
petition for expunction did not comply with article 55.01(a)(2), and it was an abuse of discretion.
See Ex parte E.H., 602 S.W.3d at 489; T.S.N., 547 S.W.3d at 620. The trial court’s expunction
order constitutes error on the face of the record. See TEX. R. APP. P. 30; Ex parte E.H., 602 S.W.3d
at 495; Pike-Grant, 447 S.W.3d at 886.
CONCLUSION
The Department met the three jurisdictional requirements for its restricted appeal, and we
have jurisdiction in this matter. Further, the face of the record shows J.C.F. was subject to court-
ordered community supervision, and the judicial clemency provision does not excuse J.C.F. from
complying with all the requirements for expunction—including not having been subject to court-
ordered community supervision. We reverse the trial court’s order and render judgment denying
J.C.F.’s petition for expunction.
Patricia O. Alvarez, Justice
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