### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00451- CV
R. L. M., Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D1- EX-12 -00 0286 , H ONO RAB LE DAVID CRAIN, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
R.L .M. was arr ested in 1999 and char g ed with capital murder. Pursuant to a plea barg ain with the State, R.L .M. pleade d g uilty to the lesser char g e of sexual a ssault, a nd the char g e of ca pital murder wa s dismis sed by the State. R.L .M. subsequently filed a petition fo r expunction pursuant to chapte r 55 of the Texas Code of Crimina l P ro cedur e. See Tex. Code Crim. Proc. arts. 55.01-.06 (expunction of criminal rec ords). I n his petition, R.L .M. soug ht expunction of all rec ords rela ted to his 1999 arr est and to his indictment for capital murder, asser ting t h at he was entitled to expunction beca use the char g e ag ainst him had been dismiss ed. The trial court order ed a hear ing on R.L .M.’s petition and 1

The trial court orig inally denied R.L .M.’s petition without proper ly notify ing him of t he 1 hear ing. R.L .M. appea led, and we held that he was entitled to notice an d re m an d ed t h e case for further proce eding s. See R .L.M. v. Stat e , No. 03-12-00384-CV, 2013 WL 6465936, at *5-9 (T ex. App.—Austin Nov. 27, 2013, no pet.) ( mem. op.).ref

err ed the matter to a mag istrate. See Tex. Gov’t Code § 54.976 (proc eeding s that may be ref err ed to mag istrate in Travis Count y ). After conducting a telephonic hear ing, the mag istrate concluded that R.L .M. was not entitled to expunction of his arr est rec ord beca use he was ultimately convicted of an offe nse arising out of the same arr est and, conseque ntly , rec ommended that the trial court deny R.L .M.’s petition.

The trial court revie wed the rec ord, adopted the mag istrate’s finding s, conclusions, and rec ommendations, and denied R.L .M.’s petition for expunction. Raising two issues, R.L .M. appea ls the judgme nt of the trial cour t. We will affirm.

ANALYSIS I n his first issue on appea l, R.L .M. arg ues that the trial court erred in denying his petition for expunction because the ca pital-murder

char g e ag ainst him was dismiss ed. We revie w a t ri al court’s ruling on a petition for expunction under an abuse- o f- d i s cretion standard. Heine v. Texas Dep’ t of Pub. Safety , 92 S.W .3d 642, 646 (Tex. App.—Austin 2002, pet. denied)

. A trial court abuses its discretion when its decision is (1) arbitra ry , unrea sonable, or without reg ard to g uiding principles; or (2) without supporting evidenc e. Bocque t

v. Herring , 972 S.W .2d 19, 21 (Tex. 1998). To the extent the trial court’s expunction ruling involves questions of law, we revie w t he ruling de novo beca use a “trial court has no ‘discre tion’ in deter mining what the law is or apply ing the law to the fac ts.” See Texas Dep’ t of Pub. Safety v. Nail , 305 S.W .3d 673, 679 (Tex. App.—Austin 2010, no pet.) (citing W alker v. Pack

er , 827 S.W .2d 833, 840 (Tex. 1992)).

2The re medy of ex punction allows a person who has been arre sted for an offe nse to have all information about the arr est remove d from t h e S tate’s rec ords if he meets the statutory require ments set out in chapte r 55 of the Code of Criminal Procedur e. See Tex. Code Crim. Proc

. arts. 55.01-.06; Nail , 305 S.W .3d at 674. I n rele vant part, article 55.01(a) provides that a person who has bee n arr ested is entitled to have a ll recor ds and files re lated to the ar rest expunge d if:
the person has been rele ased and the char g e, if any , has not resulted in a final conviction and is no longe r p ending and there was no court-or dere d community supervision under Article 4 2
. 1 2 f o r th e o f f ense, unless the offe nse is a Class C mi sdemea

nor . . . .
Tex. Code Crim. Proc. art. 55.0 1 (a )( 2 ). This Court, in construing article 55.01, has held that the expunction of a dismiss ed char g e i s unavailable when the dismiss al results in a final conviction of another char g e arising from t h e s am e ar re s t
. Texas Dep’ t of Pub. Safety v. G.B.E. , 459 S.W .3d 622, 629 (Tex. App.—Austin 2014, pet. denied) ( en banc ).

As a result of a single arr est, R.L .M. was char g ed with both capital murder and sexual assault. I n exchang e for R
. L
. M
. ’s gu ilty plea to the char g e of sexual assault, the capital- murder char g e ag ainst him was dismiss ed by the State. Be cause R.L .M. was convicted of sexual assault, he cannot demonstrate that his arr est “has not resulted in a final conviction,” an essential element of his claim for expunction. See id

. at 625 (petitioner bear s burden of showing that he has met all statutory requirem en t s neede d in order to be gra nted ex punction). Acc ording ly , we overrule R.L .M.’s first issue on appea l.

I n his second issue on appea l, R.L .M. comp l ai n s that the mag istrate lacke d any authority to conduct the expunction hear ing and, as a conseque nce, that the trial court’s order
3adopting the mag istrate’s rec ommendation is void

. Assuming without deciding that R.L .M. has

adequately

prese rved this issue for a ppeal, we conclude that R.L .M. has fa iled to demonstrate that the trial cour

t lacked a uthority to refe r the proc eeding s. Section 54.976 of the Texas Gover nment Code expressly provides that a trial court judge in T ravis County “may ref er to a mag istrate any criminal case or matter rela ted to a criminal

case for proce eding s involving

. . . an expunction or a petition for nondisclosure.” Tex. Gov’t Code § 54.976(a) (14). Although civil in nature , an expunction is a matter rela ted to a criminal case . See In re J.S. , 392 S.W .3d 334, 337 (Tex. App.—El Paso 2013, no pet.) (noting that althoug h expunction is g overne d by code of criminal proce dure, expunction proce eding s are civil proce eding s). Be cause 2 the trial court was s t at utorily authorized to ref er the expunction proce eding s to a mag istrate, we
overr ule R.L .M.’s second issue on a ppeal.

CONCLUSION Having overr

uled R.L .M.’s issue s o n a

p p e a l, w e a f

firm the judgme nt of the trial court.

R.L .M. has also filed a motion to strike the State’s brief on the g round that the “trial court 2 judge in appellant’ s case failed to issue an order of ref err al specify

ing the mag istrate’s duties.” See Tex. Gov’t Code § 54.977 (providing that to “ ref er one or more case s or matters to a ma g istrate, a judge must issue an order of ref err al specify

ing the mag istrate’s duties”). The trial court’s order of ref err al states that the mag istrate is “author ized and empower ed to exercise all power s and authority g rante d

. . . by Section 54.971.” I n addition, the order direc ts the mag istrate “[a]t the conclusion of the [ex punction] proce eding s . . . , [t o] m ak e an d fo rward

. . . any appropr iate written finding s, conclusions, order s, reco m m en d ations, or other action taken.” We disag ree that the trial court’s order of ref

err al fails to adequately specify the mag istrate’s duties, and the motion to strike is denied. 4____________________________________ Scott K. Field, Just ice
Be fore Chief J ustice Rose, Jus tices Goodwin a nd Field Affir med Filed: June 30, 2015

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