### 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. 03-10-00707- CV
C. S. S., App ellant
v. Texas Depart m ent of Public Saf ety, A ppellee

F ROM TH E DISTRI CT COURT O F H AY S CO UNTY, 274 TH JUDICI AL DISTRICT NO. 10- 0314 , H ONO RAB LE WI LLIAM H ENRY, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
This is an expunction case . We will aff irm the trial court’s order deny ing expunction.
F ACTUAL AND P ROCEDURAL BACK GR OUND Appellant C.S.S
. pleade d nolo conten dere to the char g e of unlawful restra int on Fe bruar y 2, 2006. The trial court defe rre d an adjudication of g uilt during a period of g ood behavior by C.S.S
. and place d him on u n s u p er v i s ed community supervision for six months. The defe rra l order require d C.S.S
. to abide by cer tain terms and conditions and to do or ref rain from doing cer

tain acts. Among his conditions, C.S.S
. was order ed to pay a $300 fine and court costs of $220. By order
s ig n e d Au g u s t 1 6 , 2006, without further adjudication, C.S.S
. was favor ably and succe ssfully rele a s e d from community

supervision. C.S.S
. filed a petition for expunction on Fe bruar y 25, 2010. The trial court found that under the terms of the defe rra l order , C.S.S
. “wa s place d on unsupervised defe rre d adjudication fora term of si x (6) mon t hs for the offe nse of UNL AWFUL RESTRAI NT, and require d to pay court costs of $220, pay a fine of $300, and comply wit h t h e other terms and conditions set out in the judgme nt . . . .” Ther efor e, the tria l c ourt conclude d that C.S.S
. was ineligible for expunction as a matter of la

w bec ause he had ser

ved a term of court ordere d community supervision—in the form of unsupervised defe rre d adjudication—for a period of time and was order ed to comply with conditions. C.S.S
. appea ls from the order deny ing expunction (her eaf ter “the denial order ”). He repr esents himself on appe al pro se.

We have attempted t o discern C.S .S.’s complaints and is su es on appea l, which are difficult to construe. C.S.S. a ppear s to a

rg ue that he is e ligible and entitled to e x punction beca use he was not in fac t place d on community supervisio n beca use his community supervision was unconditional and unsupervised. The substance of C.S.S .’s complaints appea rs to be that there wer e conditions omitted from his supe rvision or der which the court could have order ed, that he was not order ed to pay a supervision fee , and that he was not order ed to perf orm require d community service
. Fur ther, he arg ues, beca

use he was not order ed to repor t to a supervision office r, “as a matter of logic ” without supervision there can be no community supervision. We disag ree . C.S.S
. has failed to satisfy his burden of proving that he did not serve a term of court-or dere d community supervision in connec tion with his criminal cha rg e.
DISCUSSIO N Ex punction is not a constitutional or comm on law rig ht, but purely a statutory privileg e. Texas Dep’t of Pub. Safety v . Nail , 305 S.W .3d 673, 675 (Tex. App.—Austin 2010, no pet.) ; He ine v. Texas Dep’ t of Pub. Safety , 92 S.W .3d 642, 648 (Tex. App.—Austin 2002, pet. 2denied)
. There is no absolute rig ht to expunction, and the trial court has no equitable p o wer to

expand t h e re m ed y . T.C.R. v Bell Cnty. Dist. Attorney’s Office, 305 S.W .3d 661, 663-64 (Tex. App.—Austin 2009, n o p et.). We revie w a trial court’s order g ranting or deny ing expunction for abuse of discretion. See Nail , 305 S.W .3 d at 6 7 8
. Howeve r, to the extent expunction turns on a question of law, we revie w it de novo, beca use a trial court has no discretion in deter mining the law or apply ing it to the fa cts at hand. Id
.

The code of criminal proce dure provides an avenue by which a person can establish elig ibilit y and entitlement to expunction. See Tex. Code Crim. Proc. Ann. art. 55.01(a) (West Supp. 2011). Article 55.01 require s one seeking expunction to prove a number of elements; eac h element must be proven, and the burden of proving eac h element is on the petitioner. See T.C.R. , 305 S.W .3d at 663. Among these elements, the petitioner must prove that he or she “has been rele ased and the char g e, if any , has not resulted in a final conviction and is no longe r pending and there was no court ordered community supervision under 42.12 for any offe nse ot her than a C lass C misdemeanor.” Tex. Code Crim. Proc. Ann. art. 55.01(a) (2) (empha sis added)
. Absent such proof, expunction must be denie d. See T.C.R. , 305 S.W .3d at 663. Ar t i cle 42.12 g overns “community supervision,” which is the statutory term for what i s
comm only known as “proba tion.” Tex. Code Crim. Proc. Ann. art. 42.12 (West Supp. 2011). Communi ty supervision, as rele vant here , is define d as judicial place ment of a def en d an t u nder a continuum of prog rams and sanctions, with conditions imposed by the court for a specifie d period,

3during which criminal proce eding s are defe rre d without an a d j u d ication of g uilt. Id
. § 2(2); Nail , 305 S.W .3d at 680 (re fer ring to this situation as “def err ed adjudication community s u p ervision or proba tion”).

Section 11 of article 42.12 provides that the court shall deter mine the rea sonable conditions with which a defe ndant m ust comply during a period of co m m unity supervision. Tex. Code Crim. Proc. Ann. art. 42.12, § 11(a)
. Section 11 lists a number of conditions consi dere d
rea sonable, but the court has the discretion to choose, and is not limit ed to, those examples expressly listed. See id
. § 11(a) (1)- (24). Whil e some of the conditions listed in Section 11 involve lite ral active supervision by the state, community supervision do es not require the court to impose such conditions. See i d
. at § 11(a) (4) (re quiring repor ting to supervision office r); Nail , 305 S. W. 3 d a

t 6 8 0 ( “‘c ommunity supervision’ clea rly does not require the imposit ion of these [active supervisory ] conditi ons”).

Texas courts have uni fo rm ly held that court order s that provide for defe rre d
a d ju d ic a tion impose “cour

t order ed community supervision under Article 42.12” within the meaning
o f article 55.01 (a) (2), espec ially when the order imposes one or more of the conditions found i n article 42.12 section 11. See Texas Dep’ t of Pub. Safety v. Jacobs , 250 S.W .3d 209, 211 (Tex. App.—Dallas 2008, no pet.); Texas De p ’t o f Pub. Safety v. W

allace , 63 S.W .3d 805, 807 (Tex. App.—Austin 2001, n o p et.). There fore , succe ssful completion of misdemeanor defe rre d adjudication rende rs a defe ndant ineligible for expunction of arr est rec ords. See Nail , 305 S.W .3d at 674 (apply ing this rea soning to defe ndant who, like C
. S .S., pleade d nolo contende re to misdemeanor offe nse, succe ssfully completed defe rre d adjudi cation, and had his criminal char g e

4dismiss ed); W allace , 63 S.W .3d at 807. Def err ed adjudication constitutes community supervision
even when the only conditions order ed are to pay a fine and court costs. Texas Dep’ t of Pub. Safety

v. Moran , 949 S.W .2d 523, 527 (Tex. App.—San Antonio 1997, no writ); see also State v. Knight , 813 S.W .2d 210, 212 (Tex. App.—Houston [14t h Dist.] 1991, no writ) (cour t order ed unsupervised probation enc ompasses def err ed adjudication). C.S.S
. repe atedly states that his community supervision was unconditional as well
as unsupervised. Howeve r, the finding s of the trial court are to the contra ry . The defe rra l order 1 defe rre d C.S.S .’s final adjudication of g uilt and place d him on community supervision for a term of six months. The order conditioned defe rra l of adjudication of g uilt on C.S.S .’s g ood behavior
. The order contained further conditions, including that C.S.S
. pay a fine of $300, pay court costs of $220, commit no offe nse ag ainst the laws of this or any other state or of the United States, avoid injurious and vicious habits, avoid persons a nd place s of disreputable or harmful char acte r, obtain and keep g ainful employ

ment, and support any depende nts. These conditions mirror many of those found in Section 11. As a result, the trial court conclud ed that C.S.S
. had been place d under community supervision and wa s thereby not eligible f

or expunction and denied the reque st.

We note that the fac ts here are much differ ent from those in State v. R.B. , 600 S.W .2d 296 1 (Tex. App.—Dallas 1985, no writ), upon which C.S.S
. seems to rely
. There , the ord er defe rring R.B.’s adjudication contained no conditions of probation and the order expressly stated that “ther e shall be no court order ed supervision or probation of Def endant under Arti cl e 42.13” (the prede cessor statute). Fur

ther, it appea

rs that the rea soning in R.B. has been superse ded by statute and is no longe r authoritative. See Tex as Dep’t of Pub. Safety v. N ail , 305 S.W .3d 673, 681 n.8 (Tex. App.—Austin 2010, no pet.) (providing detailed discussion of statutory provisions); see also Texas Dep’ t of Pub. Safety v. Moran , 949 S.W .2d 523, 527 (Tex. App.—San Antonio 1997, no writ); State v. Knight , 813 S.W .2d 210, 212 (Tex. App.—Houston [14t h Dist.] 1991, no writ). 5C.S.S
. had the burden of adducing evidenc e that the county court’s d ef erral order imposed no court orde red c ommunity supervision under A rticle 42.12, a nd he fa iled to do so. CONCLUSION The fa cts as found by

the trial cour

t w ere sufficie nt to support a finding that C.S.S
. completed a term of court order ed community supervision. As a re s u l t , C.S.S
. is not elig ible for e x punction.

We overr

ule al l o f C.S.S .’s issues. We aff irm the order of the trial court deny ing e x punction.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Marily n Aboussie, J ustice Be fore Chief J ustice Jones, J ustices Henson a nd Aboussie* Affir med Filed: Jul y

24, 2012 * Be fore Marily

n Aboussie, Chief J ustice (re tired), Third Court of Appea ls, sitti ng by assig nment. See Tex. Gov’t Code Ann. § 74.003(b) ( West 2005).

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