Opinion filed December 16, 2021



### In The 

# Eleventh Court of Appeals

__________ No. 11

- 20

- 00048

- CV

__________ IN THE MATTER OF THE EXPUNCTION OF A.L.

On Appeal from the 441st District Court Midland County , Texas Trial Court Cause No. CV 56100

M E M O R A N D U M O P I N I O N Appellant, A.L., sought an expunction of all criminal records and files related
to her arrest for the offense of aggravated assault with a deadly weapon, family
violence

. In two issues, Appellant asserts that the trial court erred when it denied her petition for expunctio n. We reverse

. I. Factual Background In 2018, t he State charged Appellant with the felony offense of aggravated assault with a deadly weapon , family violence. In accordance with the terms of her negotiated plea bargain agreement with the State , Appellant was assigned to a2 pretrial diversion (PTD) program for a period of nine months. Her felony charge

was later dismissed after Appellant successfully completed the PTD program

. Appellant subsequently filed her petition for expunction. At her expu nction hearing, Appellant testified that she had completed and satisfied all requirements of
the PTD program , that the felony charge for which she was arrested did not result in
a final conviction , and that there was no case pending against her. During it s cross
examination, the State attempted to question Appellant about a condition of the plea bargain agreement , in which Appellant had allegedly waived her right to seek an expunction of the felony charge and all matters related to it . Her trial counsel objected to the State’s inquiry on the grounds that the State had failed to plead and allege the affirmative defense of waiver prior to the hearing. Nevertheless, t he trial

court over ruled Appellant’s objection , admitted the State’s proffered evidence, and ultimately denied her petition for expunction. Appellant raises two issues on appeal ; because the issues are intertwined , we will consider them together. Essentially, A ppellant con tends that the trial court abused its discretion when it denied her petition for expunction because (1) she had satisfied all of the statutory require ments to obtain an expunction of the charged
offense and all related matters and (2) it based its decision on the evidence present ed by the State that pertained only to the State’s unpleaded affirmative defense of
waiver.
II. Standard s of Review We review a trial court’s ruling on a petition for expunction under an abuse of
discretion standard. Ex parte R.P.G.P. , 623 S.W.3d 313, 317 (Tex. 2021). However, to the extent that the trial court’s ruling depends on a question of law, we review the ruling de novo. Ex parte E.H. , 602 S.W.3d 486, 489 (Tex. 2020) (“[A] trial court3 has no ‘discretion’ in determining what the law is or applying the law to the facts.” ( quot ing Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992)). Further, we review a trial court’s decision to admit or exclude evidence for
abuse of discretion. Interstate Northborough P’ship v. State , 66 S.W.3d 213, 220 (Tex. 2001)

. III. Analysis
Article 55.01 of the Co de of Criminal Procedure governs an individual’s right to an expunction

. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 55.01 (West Supp. 2021 ). In relevant part , a person who has been arrested for the commission of a felony
offense is entitled to have all records and files relating to the arrest expunged if: (1) the person has been released ; (2) the charge , if any, has not resulted in a final
conviction and is no longer pending; ( 3 ) there was no court

- ordered community supervision for the offense; (4) an indictment charging the person with the commission of any felony offense arising out of the same transac tion for which the person was arrested, if presented at any time following the arrest, was dismissed or quashed; and ( 5 ) the trial court finds that the indictment was dismissed or quashed because the person completed a pretrial intervention program. Id. § 55.01(a)(2)(A)(ii)(c). Here, there is no dispute that Appellant satisfied all of th e statutory requirements to obtain an expunction of the records , files, and other
relevant information that was relat ed to her arrest for the charged offens e

. The record before us shows that (1) Appellant had been released from the charged offense ; (2) the charge d offense did not result in a final conviction and was no longer pending; (3) Appellant had not been placed on community supervision for
the charged offense ; (4) the indictment for the charged offense had been dismissed ; and (5) the charged offense was dismissed be cause the trial court found that4 Appellant had successfully completed her PTD program. As we have said, t he State does not dispute that Appellant proved her entitlement to an expunction under
Article 55.01

. Rather , the State maintains that the trial cour t properly admitted and
considered the evidence presented by the State concerning Appellant’s alleged
waiver of her right to seek an expunction . We dis agree. Although th e expunction statute is codified in the code of criminal procedure,
one’s entitlement to an expunction is clearly a civil remedy. Ex parte R.P.G.P. , 623
S.W.3d at 31 6 (citing Ex parte E.H. , 602 S.W.3d at 489). Therefore, b ecause an expunction proceeding is civil in nature, the rules of civil procedure apply to and

govern expunction hearings. Carson v. State , 65 S.W.3d 774, 784 (Tex. App.

— Fort
Worth 2001 , no pet. )

. Under Rule 94, w aiver is an affirmative defense that must be specifically pleaded

. T EX

. R. C IV

. P. 94. Thus, i f a party fails to plead and allege the affirmative defense of waiver, that party is precluded from relying on or asserting the waiver
defense at trial. T.O. Stanley Boot Co. v. Bank of El Paso , 847 S.W.2d 218, 223 (Tex. 1992); Security Self Storage LLC v . Pauling , No. 11

- 09

- 00103

- CV, 2010 WL
3170670 , at *2 (Tex. App.

— Eastland Aug. 12, 2010, no pet.) (mem. op.) (citing Bracton Corp. v. Evans Constr. Co. , 784 S.W.2d 708, 710 (Tex. App.

— Houston [14th Dist.] 1990, no pet.)). In this case , the State did not f ile any pleadings in response to Appellant’s petition for expunction

. As such, the State failed to properly raise the affirmative defense of waiver prior to the commencement of the expunction hearing . D espite its failure to plead or assert the affirmative defense of waiver in advance of the hearing, as a defense to Appellant’s expunction request the State
nonetheless present e d evidence , which the trial court admitted, that Appellant had alleged ly waive d her entitlement to an expunction

. In fact, o ver the objections5 asserted by Appellant’s trial counsel , the trial court permitted the State to question Appellant about the substance of the plea agreement in which she purportedly
waived her right to seek and obtain an expunction of the charged offense and other
related matters

. In light of the State’s failure to comply with the pleading requirements of
Rule 94 , it was prohibited from relying on or asserting a waiver defense at trial.
Therefore , the trial court should have neither admitted nor considered the evidence presented by the State in support of this defense. Because it did in both respects, we hold that the trial court abused its discretio n when it (1) permitted the State to develop an unpleaded and unasserted waiver defense to Appellant’s expunction request and (2) admitted th e evidence offered by the State on that issue

. Moreover, i n its findings of fact and conclusions of law, the trial court recit ed
and referred to language from the parties’ plea agreement and found that Appellant had waived her right to an expunction. However, unlike the waiver evidence
discussed above , t he plea agreement was neither offered by the State nor admitted
into evidence by the trial court

. Therefore, because the plea agreement is not a part of or included in the appellate record , it is not before us and cannot support the trial court’s finding.
The State concedes that the trial court’s decision to admit the evidence that Appellant had allegedly waived her right to an expunction contributed to the trial court’s judgment. We agree that the trial court’s erroneous admission of this evidence probabl y caused the rendition of an improper judgment. See T EX

. R.
A PP

. P. 44.1(a)(1). This is particularly true when, as in this case, the erroneously admitted evidence was pertinent to a crucial issue in the case. See Reliance Steel &
Aluminum Co. v. Sevcik , 267 S.W.3d 867, 871 (Tex. 2008); Nissan Motor Co. v.6 Armstrong , 145 S.W.3d 131, 144 (Tex. 2004). Here, Appellant conclusively proved
her entitlement to an expunction of the charged offense and all records, filings, and
other information related to it. The record before us do es not contain any admissible evidence to the contrary

. Consequently , we hold that the trial court abused its
discretion when it denied Appellant’s petition for expunction

. IV. This Court’s Ruling
We sustain Appellant’s first and second issues on appeal. Accordingly, we
reverse the order of the trial court and remand t his cause to the trial court with
instructions to grant Appellant’s petition for expunction

.

W. STACY TROTTER
JUSTICE
December 16, 2021 Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.