1

NO. ________________ 

IN THE 

SUPREME COURT OF TEXAS 

AUSTIN, TEXAS 

J.S. 

Petitioner 

v.

THE STATE OF TEXAS, 

Respondent 

Eighth Court of Appeals 

NO. 08-13-00275-CV

Appeal in Cause No. 2013DCV2701 

PETITION FOR REVIEW

Oral Argument not requested. 

SUBMITTED: 

FOR PETITIONER: 

MATTHEW "MATEO" DEKOATZ 

P.O. BOX 1886 

El Paso, Texas 79950 

T.B.L. No. 05722300 

Phone: 915-626-8833; fax: 915-541-8892 

E-mail: mateodekoatz@yahoo.com 

15-0345

FILED

15-0345

5/11/2015 6:16:08 PM

tex-5239748

SUPREME COURT OF TEXAS

BLAKE A. HAWTHORNE, CLERK
2

IDENTITY OF INTERESTED PARTIES, COUNSEL AND TRIAL JUDGES

FOR RESPONDANT, THE STATE OF TEXAS

Hon. Jo Anne Bernal, El Paso County Attorney

500 E. San Antonio, Room 503

El Paso, Texas 79901

Phone: 915-546-2050; Fax: 915-546-2133

jbernal@epcounty.com

APPELLATE COUNSEL FOR THE STATE:

Amy Monsivais, Esq.

Assistant County Attorney for the El Paso County.

500 E. San Antonio, Room 503

El Paso, Texas 79901

Phone: 915-546-2050; Fax: 915-546-2133

amonsivais@epcounty.com

TRIAL COUNSEL FOR THE STATE OF TEXAS:

Amy Monsivais, Esq.

(Information directly above.)

IDENTITY OF TRIAL JUDGES:

Hon. Sergio Enriquez

448th Judicial District Court

500 East San Antonio, Room 404

El Paso, Texas 79901

Phone: 915-543-3893; Fax: 915-834-8263

senriquez@epcounty.com
3

TABLE OF CONTENTS PAGE NO.

IDENTITY OF INTERESTED PARTIES AND COUNSEL...................................2

TABLE OF AUTHORITIES.....................................................................................4

STATEMENT REGARDING ORAL ARGUMENT.................................................5

PRELIMINARY STATEMENT OF THE CASE......................................................5

PROCEDURAL HISTORY.......................................................................................6

STATEMENT OF JURISDICTION..........................................................6

I. GROUNDS/QUESTIONS PRESENTED FOR REVIEW...................................7

SOLE ISSUE: WHETHER THE COURT OF APPEALS ERRED IN 

UPHOLDING THE JUDGMENT DENYING EXPUNCTION WHEN THE 

STATE FAILED TO PROVE ITS AFFIRMATIVE DEFENSE OF 

WAIVER OF PETITIONER’S STATUTORY RIGHT TO EXPUNCTION?

II. STATEMENT OF THE FACTS........................................................................7

III. SUMMARY OF ARGUMENT..........................................................................8

IV. INTRODUCTION..............................................................................................9

V. THE COURT'S DECISION..........................................................9 [Appendix 1]

VI. ARGUMENT AND AUTHORITY..................................................10-14

VII. CONCLUSION...............................................................................................14

PRAYER FOR RELIEF..........................................................................................14

ACKNOWLEDGMENT OF SERVICE..................................................................15

CERTIFICATE OF COMPLIANCE..........................................................15

APPENDIX .....................................................................................16
4

TABLE OF AUTHORITIES 

STATE CASES PAGE NO.

Davis v. State, 817 S.W. 2d 345, 346 (Crim. App. 1991)........................................14

Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001)................................12

Hicks v. State, 525 S.W.2d 177 (Tex. Crim. App. 1975).........................................13

Hughen v. State, 297 S.W.3d 330, 337 (Crim. App. 2009)......................................14

Light v. State, 15 S.W.3d 104, 105 (Crim. App. 2000)............................................14

Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. App. 1996)...................................12

Resanovich v. State, 906 S.W.2d 40, 42 (Tex. Crim. App. 1995)............................13

Yarborough v. State, 947 S.W.2d 892 (Tex. Crim. App. 1997)...............................13

CONSTITUTIONAL, STATUTES, AND RULES

Texas Code of Criminal Procedure, Section 55.01..............................................9

Texas Rules of Appellate Procedure, Rule 41.1(a)...........................................14

Texas Rules of Appellate Procedure, Rule 47.1...............................................14

Texas Rules of Appellate Procedure, Rule 53.1.................................................6

Texas Rules of Appellate Procedure, Rule 56.1.................................................7
5

J.S.,

Petitioner

v.

THE STATE OF TEXAS,

Respondent

PETITION FOR REVIEW

To the Honorable Texas Supreme Court:

Comes now the Petitioner, J.S. by and through his undersigned counsel, in 

the above-styled and numbered cause, and respectfully urges the Court to 

grant review in this case, pursuant to the Rules of Court.

STATEMENT REGARDING ORAL ARGUMENT: 

Petitioner does seek oral argument.

PRELIMINARY STATEMENT OF THE CASE

Petitioner sought to expunge his misdemeanor case based upon his successful 

completion of pretrial diversion, dismissal of the case, and the fact that limitations 

had expired. Rr1-3-6. The State argued that Petitioner waived his right to 

expunction by participating in the pretrial diversion program. Rr1-9. The trial 

court denied the expunction. Rr1-9. 
6

PROCEDURAL HISTORY:

The Court's Decision: On March 4, 2015, and in a published opinion, the

Honorable Eighth Court of Appeals affirmed the judgment of the trial court which 

denied relief to Petitioner under his petition for expunction of records relating to 

his misdemeanor case. Petitioner timely filed his motion for rehearing, which was 

denied by the Court on April 15, 2015. Accordingly, Petitioner timely files the 

instant petition for review.

STATEMENT OF JURISDICTION:

The Honorable Supreme Court of Texas has jurisdiction to hear the instant petition

pursuant to Rule 53.1, et seq. of the Texas Rules of Appellate Procedure. 
7

I. GROUNDS/QUESTIONS PRESENTED FOR REVIEW:

SOLE ISSUE: WHETHER THE COURT OF APPEALS ERRED IN 

UPHOLDING THE JUDGMENT DENYING EXPUNCTION 

WHEN THE STATE FAILED TO PROVE ITS AFFIRMATIVE 

DEFENSE OF WAIVER OF PETITIONER’S STATUTORY RIGHT 

TO EXPUNCTION?

THE COURT OF APPEALS ERRED IN UPHOLDING THE 

JUDGMENT DENYING EXPUNCTION WHEN THE STATE 

FAILED TO PROVE ITS AFFIRMATIVE DEFENSE OF WAIVER 

OF PETITIONER’S STATUTORY RIGHT TO EXPUNCTION.

Texas Rules of Appellate Procedure, Rule 56.1:

(5) whether the court of appeals appears to have committed an error of law of such 

importance to the state’s jurisprudence that it should be corrected; and

(6) whether the court of appeals has decided an important question of state law that 

should be, but has not been, resolved by the Supreme Court?

Petitioner notes that the Hon. Court of Appeals deemed the instant case sufficiently 

important to Texas jurisprudence by publishing the opinion concerning the issue in 

the case at bar.

II. STATEMENT OF THE FACTS:

Petitioner sought to expunge his misdemeanor case based upon his successful 

completion of pretrial diversion, dismissal of the case, and the fact that limitations 

had expired. Rr1-3-6. The State argued that Petitioner waived his right to 
8

expunction by participating in the pretrial diversion program. Rr1-9. The trial 

court immediately denied the expunction. Rr1-9. 

Petitioner argued that there was no evidence in the record that Petitioner waived 

his right to expunction. Rr1-9. The trial court did not believe that the State was 

required to prove that Petitioner waived his right to expunction. Rr1-9. State’s 

exhibit 1 indicates that Petitioner did not waive his right to expunction. Rr1-10. 

As a point of fact, Petitioner specifically indicated that he did not waive his right to 

expunction. Rr1-11-12. 

Petitioner sought to take testimony of County Attorney employee, Margie Medina. 

Without any explanation, the trial court granted the State’s motion to quash 

subpoena. Rr1-14. Petitioner preserved a bill of exception and indicated that 

Petitioner did not waive his right to expunction and that the County Attorney did 

not oppose Petitioner’s action in not waiving his right to expunction. Rr1-14-15. 

Petitioner reiterated that, in writing, he did not waive his right to expunction. Rr1-

16-17. 

III. SUMMARY OF THE ARGUMENT: 

Petitioner argues that the Court of Appeals erred by upholding the trial court’s 
9

judgment denying expunction. In El Paso County, defendants who participate in 

the pretrial diversion program routinely waive their right to expunction when they 

agree to participate in the pretrial diversion program. In the instant case, Petitioner 

specifically wrote, in the pretrial diversion documents, that he did not waive his 

right to expunction. The State did not prove waiver of Petitioner’s right to 

expunction, and the State did not offer proof to contradict Petitioner’s proof that he 

did not waive his right to expunction.

IV. INTRODUCTION: 

In his sole issue, Petitioner argues that the Honorable Eighth Court of Appeals 

erred by affirming the judgment denying expunction relief when the State failed to 

establish, even by a scintilla of evidence, that Petitioner waived his right to 

expunction by merely participating in the El Paso County pretrial diversion 

program. Petitioner offered evidence that he did not waive his right to expunction. 

Other than the State’s mere assertion that Petitioner waived his right to expunction, 

the State established no proof that Petitioner waived his right to expunction.

V. THE COURT'S DECISION: 

A copy of the lower court’s opinion is attached as Appendix 1. A copy of the 

pertinent statute, Section 55.01 of the Texas Code of Criminal Procedure is 
10

attached as Appendix 2. A copy of the trial court’s judgment denying expunction 

is attached as Appendix 3. A copy of the trial court’s letter denying Petitioner’s 

motion for rehearing is attached as Appendix 4.

VI. ARGUMENT AND AUTHORITY:

SOLE ISSUE: WHETHER THE COURT OF APPEALS ERRED IN 

UPHOLDING THE JUDGMENT DENYING EXPUNCTION 

WHEN THE STATE FAILED TO PROVE ITS AFFIRMATIVE 

DEFENSE OF WAIVER OF PETITIONER’S STATUTORY RIGHT 

TO EXPUNCTION?

THE COURT OF APPEALS ERRED IN UPHOLDING THE 

JUDGMENT DENYING EXPUNCTION WHEN THE STATE 

FAILED TO PROVE ITS AFFIRMATIVE DEFENSE OF WAIVER 

OF PETITIONER’S STATUTORY RIGHT TO EXPUNCTION.

The Hon. Court of Appeals holds:

It is undisputed that the State raised the affirmative defense of 

waiver in its answer. The only question is whether the evidence is 

legally sufficient to prove the defense. J.S. introduced into evidence 

the misdemeanor information showing he was charged with assault 

in cause number 20110C02776 (Petitioner’s Exhibit 1) and the 

motion to dismiss filed by the State (Petitioner’s Exhibit 2). The 

motion specifically recites that the State was moving to dismiss the 

case because J.S. had successfully completed the PTD Program. The 

judge of the County Criminal Court at Law No. 4 signed the order 

dismissing the case on May 29, 2013. The State introduced without 
11

objection the PTD Agreement. The Agreement bears what appears to 

be J.S.’s signature immediately beneath the sentence waiving the 

rights to a speedy trial and expunction. The signature is similar, 

albeit not identical, to the signature at the bottom of the Agreement. 

J.S.’s attorney argued at the hearing that J.S. did not sign the 

document indicating he waived his rights and he instead wrote the 

words “not waived.” We have examined the writing and cannot say 

with any degree of certainty that it states “not waived.” The writing 

appears similar to J.S.’s signature at the bottom of the page. The trial 

court, as the trier of fact, determined this issue of fact and resolved it 

against J.S. Having viewed the evidence in the light most favorable 

to the judgment, we conclude that the evidence is legally sufficient 

to support the trial court’s implied finding that J.S. signed the PTD 

Agreement, including the waiver portion of the Agreement, and 

thereby waived his right to seek an expunction of the criminal 

records related to the assault case.

Opinion, p14-15.

Petitioner notes that the State has offered no proof that Petitioner waived his right 

to expunction. Record-Entire. The Court indicates that it cannot discern whether 

Petitioner wrote “not waived” on the pretrial diversion application instrument. To 

the contrary, there is no proof that Petitioner waived his right to expunction. 

Petitioner did not waive his right to expunction, but the Court fails to address this 

issue, and merely says it can’t tell. The State offered no proof in support of its 

affirmative defense of waiver. Petitioner offered his proof by way of a bill, since 

the trial court did not allow him to offer proof to the trial court. Petitioner’s offer 

of proof was not contradicted by the State. The record and Petitioner’s appellate

brief indicate:
12

Petitioner sought to expunge his misdemeanor case based upon his 

successful completion of pretrial diversion, dismissal of the case, and the 

fact that limitations had expired. Rr1-3-6. The State argued that Petitioner 

waived his right to expunction by participating in the pretrial diversion 

program. Rr1-9. The trial court immediately denied the expunction. Rr1-9. 

Petitioner argued that there was no evidence in the record that Petitioner 

waived his right to expunction. Rr1-9. The trial court did not believe that 

the State was required to prove that Petitioner waived his right to 

expunction. Rr1-9. State’s exhibit 1 indicates that Petitioner did not waive 

his right to expunction. Rr1-10. As a point of fact, Petitioner specifically 

indicated that he did not waive his right to expunction. Rr1-11-12. 

Petitioner sought to take testimony of County Attorney employee, Margie 

Medina. Without any explanation, the trial court granted the State’s motion 

to quash subpoena. Rr1-14. Petitioner preserved a bill of exception and 

indicated that Petitioner did not waive his right to expunction and that the 

County Attorney did not oppose Petitioner’s action in not waiving his right 

to expunction. Rr1-14-15. Petitioner reiterated that, in writing, he did not 

waive his right to expunction. Rr1-16-17. 

Because the State did not controvert Petitioner’s proof that he did not waive his 

right to expunction, the State failed to establish that Petitioner did waive his right 

to expunction. The Court of Appeals has failed to address this point, and Petitioner

believes that the Court was required to address this point. Texas law provides that 

appellate courts accept as true factual assertions made by counsel which are not 

disputed by opposing counsel." Pitts v. State, 916 S.W.2d 507, 510 (Tex. Crim. 

App. 1996). In Hayden v. State, 66 S.W.3d 269, 273 (Tex. Crim. App. 2001), the 

Court of Criminal Appeals said that, because a defendant had neither disputed the 

state's claim before the trial court that witness statements described all of the 

extraneous offenses nor attempted to have the witness statements placed in the 
13

record, "We assume, therefore, that the witness statements are as the State 

represented them to be." In Resanovich v. State, 906 S.W.2d 40, 42 (Tex. Crim. 

App. 1995), in which the defendant failed to dispute the state's submission 

regarding a prior murder sentence, we said, "Because there were no objections 

made to the State's undisputed observations, we hold that those observations 

constitute valid proof in support of the State's submission." There are a long line 

of cases holding that assertions of counsel should be taken as true." Texas courts

have applied this principle allowing appellate courts to accept as fact assertions 

from both prosecutors and defense attorneys. Yarborough v. State, 947 S.W.2d 892

(Tex. Crim. App. 1997); Hicks v. State, 525 S.W.2d 177 (Tex. Crim. App. 1975). 

This issue is an important one to Texas jurisprudence, and would be a worthwhile 

issue to be addressed by the Hon. Supreme Court of Texas.

Petitioner’s counsel’s (bill of exception) statement that Petitioner specifically did 

not waive his right to expunction, coupled with the writing that the Court says it 

has difficulty in accepting, must be accepted as both true and sufficient to preserve

and support this issue for appellate review. Counsel for the State did not deny 

Petitioner’s assertion. Petitioner’s statement, when made in open court without 

being contradicted or disputed by either opposing counsel or the trial court, 

provides evidence of the fact of occurrence that is being asserted. The trial court 
14

did not dispute it because the trial court chose not to hear it.

The Court of Appeals has not addressed this issue. Petitioner contends that the 

Court of Appeals is, by law, required to address this issue, for the courts of appeals 

are required to review every argument raised by a party that is necessary to the 

disposition of that appeal. Hughen v. State, 297 S.W.3d 330, 337 (Crim. App. 

2009); Light v. State, 15 S.W.3d 104, 105 (Crim. App. 2000); TRAP, Rule 47.1, 

41.1(a); Davis v. State, 817 S.W. 2d 345, 346 (Crim. App. 1991). Because the 

Hon. Court of Appeals refused to address this issue, Petitioner respectfully looks to 

the Hon. Supreme Court of Texas to determine this issue.

VII. CONCLUSION:

For the above reasons, Petitioner respectfully moves that his petition for review be 

granted. 

PRAYER FOR RELIEF

For all the above reasons, Petitioner respectfully prays that the Honorable Supreme 

Court of Texas grant his petition for review. Petitioner thanks the Court.
15

Respectfully submitted, 

 /S/ M. DeKoatz 

____________________________

MATTHEW "MATEO" DEKOATZ

PO BOX 1886

El Paso, Texas 79950

T.B.L. No. 05722300

Phone: 915-626-8833; Fax: 915-541-8892

E-mail: mateodekoatz@yahoo.com

CERTIFICATE OF COMPLIANCE: This Writ of Review contains 2,035 words 

printed in a proportionally spaced typeface, Times New Roman, 14. 

ACKNOWLEDGMENT OF SERVICE

Undersigned counsel hereby acknowledges that on this 29th day of April, 2015, a 

copy of the above Petition for Review was sent via the Court’s electronic filing 

system to the Hon. Jo Anne Bernal, County Attorney for El Paso County, Texas.

 /s/ M. DeKoatz

______________________________________

M. DEKOATZ, Attorney at Law
COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER

§

§

No. 08-13-00275-CV

OF THE EXPUNCTION

§

Appeal from the

OF J.S.

§

448th District Court

of El Paso County, Texas

§

§

(TC# 2013DCV2701)

O P I N I O N

J.S. appeals from an order denying his petition for expunction. Finding the evidence 

legally sufficient to support the trial court’s implied finding that J.S. waived the right to seek an 

expunction, we affirm.

FACTUAL SUMMARY

In 2011, J.S. was arrested for and charged with the offense of assault causing bodily 

injury. The State of Texas and J.S. entered into an agreement whereby the State would dismiss 

the charge if J.S. successfully completed the Pre-Trial Diversion Program (PTD). In exchange 

for its promise to dismiss, the State required J.S. to waive his rights to a speedy trial and to seek 

an expunction and both J.S. and the State signed the PTD Agreement. J.S. successfully 

completed PTD and the State dismissed the case in accordance with the Agreement.

J.S. filed a petition for expunction pursuant to Article 55.01(a)(2)(B) of the Texas Code 
- 2 -

of Criminal Procedure alleging that the statute of limitations for the assault offense had expired, 

he had been released, the charge had not resulted in a final conviction and was no longer 

pending, and there was no court-ordered community supervision. See TEX.CODE 

CRIM.PROC.ANN. art. 55.01(a)(2)(B)(West Supp. 2014). The State, represented by the El Paso 

County Attorney, filed a general denial and raised as an affirmative defense J.S.’s written waiver 

of the right to seek an expunction.1

At the hearing on the expunction petition, J.S. introduced copies of the misdemeanor 

information charging him with assault in cause number 20110C02776 (Petitioner’s Exhibit 1) 

and the motion to dismiss filed by the State in the same case (Petitioner’s Exhibit 2). Appellees

introduced a copy of the PTD Agreement filed in cause number 20110C02776 (State’s Exhibit 

1). The PTD Agreement, which is titled, “WAIVER OF SPEEDY TRIAL AND WAIVER OF 

RIGHT OF EXPUNCTION AND VOLUNTARY AGREEMENT TO PARTICIPATE IN THE 

PRE-TRIAL DIVERSION PROGRAM,” states the following in the first section of the 

document:

I understand that I have an absolute right to a speedy trial as provided by 

the Texas Code of Criminal Procedure (T.C.C.P.) Article 1.0 [sic]; Article I, 

Section 10 of the Texas Constitution; and the 6th Amendment of the United States 

Constitution.

I further understand that I have the right in accordance with Article 55.01, 

T.C.C.P., to have any criminal record expunged if I successfully complete the 

Pre-Trial Diversion (PTD) Program in accordance with Article 55.01, T.C.C.P.

 

1

 The El Paso County Attorney filed the answer on behalf of the El Paso County Sheriff’s Office, El Paso County 

Attorney’s Office, El Paso County Clerk’s Office, District Attorney’s Office, District Clerk’s Office, Records 

Management and Archives, West Texas Community Supervision and Corrections Department (Probation), El Paso 

County Court Administration and the Jail Magistrate. On appeal, the El Paso County Attorney has filed a reply brief 

on behalf of “The State of Texas.” The opinion will likewise refer to the Appellees generally as “the State of Texas” 

or simply “the State.”
- 3 -

I hereby agree to voluntarily waive my rights to a speedy trial and 

expunction as set out by Articles 1.05 and 55.01 T.C.C.P., in accordance with 

Article 1.14 T.C.C.P., as a condition of my participation in the PTD 

Program. [Emphasis added].

Immediately beneath these statements is a line for the defendant’s signature. On that line is what 

appears to be a signature in cursive handwriting. The Agreement then sets forth several 

conditions of the PTD Program. It is undisputed that J.S. signed the bottom of the Agreement 

indicating that the waiver and agreement had been read or explained to him and he agreed to the 

conditions of the PTD Program.

J.S.’s attorney argued that J.S. did not waive his right to an expunction because he did not 

sign the portion of the Agreement waiving his right to seek an expunction. He maintained 

instead that J.S. had written the words “not waived.” Counsel asked the trial court to take 

judicial notice that J.S. had signed the words “not waived.” The State responded to this request 

by arguing that the writing on the signature line does not clearly state “not waived.” The trial 

judge did not take judicial notice as requested, stating that the “exhibit speaks for itself” and he 

would “take this into consideration.” At the conclusion of the hearing, the trial court denied the 

petition for expunction.

WAIVER OF RIGHT TO SEEK EXPUNCTION

In his sole issue, J.S. argues that the trial court abused its discretion by denying the 

petition for expunction because he presented evidence establishing he had a right to an 

expunction under Article 55.01(a)(2)(B) and Appellees failed to prove he had waived that right. 

Alternatively, J.S. contends that the District Attorney’s policy of requiring him to waive his right 
- 4 -

to an expunction in exchange for participation in the PTD Program is against public policy.

Standard of Review

J.S. phrases his issue in terms of the abuse of discretion standard which is often applied to 

an appeal from an expunction order. In this case, however, the arguments clearly implicate the 

legal sufficiency of the evidence supporting the trial court’s implied findings that J.S. failed to 

establish the statutory requirements under Article 55.01(a) or the State establish its affirmative 

defense of waiver. These implied findings must be analyzed under the traditional legal 

sufficiency standard rather than the abuse of discretion standard. See In re S.D., 349 S.W.3d 76, 

79-80 (Tex.App.--El Paso 2010, no pet.).

We may sustain a legal sufficiency challenge only if the record discloses one of the 

following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by 

rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; 

(c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence 

establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 

810 (Tex. 2005). In determining whether a finding is supported by legally sufficient evidence, 

we view the evidence in the light most favorable to the finding, crediting favorable evidence if a 

reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder

could not. Id. at 807. Further, we indulge every reasonable inference that would support the 

finding. Id. at 822.

Applicable Law

The right to an expunction is a statutory privilege. In the Matter of the Expunction of 
- 5 -

A.G., 388 S.W.3d 759, 761 (Tex.App.--El Paso 2012, no pet.). When a party holding criminal 

records opposes a petition for expunction, the petitioner must meet his burden of proof by 

submitting evidence on each element of his claim. Id. All provisions in a statutory cause of 

action are mandatory and exclusive and all conditions must be met before a person is entitled to 

expunction. Id. A statutory expunction proceeding is civil rather than criminal in nature, and the 

petitioner bears the burden of proving compliance with the statute. Id. As a general rule, the 

trial court has no discretion to deny the petition if the petitioner meets his burden under the 

statute. See In re A.G., 388 S.W.3d at 761. In this case, however, the State raised the affirmative 

defense of waiver. See TEX.R.CIV.P. 94. Consequently, the State had the burden to both plead 

and prove that J.S. had waived his right to seek an expunction. In the Matter of the Expunction 

of J.E., 396 S.W.3d 231, 232 (Tex.App.--El Paso 2013, no pet.); In the Matter of the Expunction 

of A.G., 388 S.W.3d at 762 n.1. If the State sustained its burden of both pleading and proving 

that J.S. waived his right to seek an expunction of the records related to the assault case, the trial 

court properly denied the petition for expunction and it is unnecessary for us to address whether 

J.S. presented legally sufficient evidence to establish the statutory requirements for an 

expunction under Article 55.01(a)(2).

Waiver of the Right to Seek Expunction

It is well established that a criminal defendant can waive any rights secured him by law. 

TEX.CODE CRIM.PROC.ANN. art. 1.14(a)(West 2005). This includes the statutory right to an 

expunction. See In the Matter of the Expunction of Jones, 311 S.W.3d 502, 505-06 (Tex.App.--

El Paso 2009, no pet.); In the Matter of the Expunction of Arnold, 34 S.W.3d 583, 586-87 
- 6 -

(Tex.App.--El Paso 2000, no pet.).

It is undisputed that the State raised the affirmative defense of waiver in its answer. The 

only question is whether the evidence is legally sufficient to prove the defense. J.S. introduced 

into evidence the misdemeanor information showing he was charged with assault in cause 

number 20110C02776 (Petitioner’s Exhibit 1) and the motion to dismiss filed by the State

(Petitioner’s Exhibit 2). The motion specifically recites that the State was moving to dismiss the 

case because J.S. had successfully completed the PTD Program. The judge of the County 

Criminal Court at Law No. 4 signed the order dismissing the case on May 29, 2013. The State 

introduced without objection the PTD Agreement. The Agreement bears what appears to be 

J.S.’s signature immediately beneath the sentence waiving the rights to a speedy trial and 

expunction. The signature is similar, albeit not identical, to the signature at the bottom of the 

Agreement. J.S.’s attorney argued at the hearing that J.S. did not sign the document indicating 

he waived his rights and he instead wrote the words “not waived.” We have examined the 

writing and cannot say with any degree of certainty that it states “not waived.” The writing 

appears similar to J.S.’s signature at the bottom of the page. The trial court, as the trier of fact, 

determined this issue of fact and resolved it against J.S. Having viewed the evidence in the light 

most favorable to the judgment, we conclude that the evidence is legally sufficient to support the 

trial court’s implied finding that J.S. signed the PTD Agreement, including the waiver portion of 

the Agreement, and thereby waived his right to seek an expunction of the criminal records 

related to the assault case.

Public Policy
- 7 -

Citing Montgomery v. Browder, 930 S.W.2d 772 (Tex.App.--Amarillo 1996, writ 

denied), J.S. argues for the first time on appeal that the District Attorney’s policy of requiring a 

defendant to waive his right to expunction in exchange for participation in the PTD Program is 

against public policy. We understand J.S. to argue that the waiver portion of the PTD 

Agreement is void and unenforceable against him. J.S. did not present this argument in the trial 

court as a basis for avoiding enforcement of the waiver provision. Consequently, it is waived. 

See TEX.R.APP.P. 33.1. Having found the evidence legally sufficient to establish that J.S. waived 

his right to seek an expunction, we overrule the sole issue presented on appeal and affirm the 

judgment of the trial court.

March 4, 2015 ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
CODE OF CRIMINAL PROCEDURE 

TITLE 1. CODE OF CRIMINAL PROCEDURE 

CHAPTER 55. EXPUNCTION OF CRIMINAL RECORDS 

Art. 55.01. RIGHT TO EXPUNCTION. (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: 

(1) the person is tried for the offense for which the 

person was arrested and 

(A) acquitted by the trial court, except as 

provided by Subsection (c) i or 

(B) convicted and subsequently: 

(i) pardoned for a reason other than that 

described by Subparagraph (ii); or 

(ii) pardoned or otherwise granted relief 

on the basis of actual innocence with respect to that offense, 

if the applicable pardon or court order clearly indicates on its 

face that the pardon or order was granted or rendered on the 

basis of the person's actual innocence; or 

(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 Article 42.12 for the offense, unless the offense is a 

Class C misdemeanor, provided that: 

(A) regardless of whether any statute of 

limitations exists for the offense and whether any limitations 

period for the offense has expired, an indictment or information 

charging the person with the commission of a misdemeanor offense 

based on the person's arrest or charging the person with the 

commission of any felony offense arising out of the same 

transaction for which the person was arrested: 

APPENDIX 2 
(i) has not been presented against the 

person at any time following the arrest, and: 

(a) at least 180 days have elapsed 

from the date of arrest if the arrest for which the expunction 

was sought was for an offense punishable as a Class C 

misdemeanor and if there was no felony charge arising out of the 

same transaction for which the person was arrested; 

(b) at least one year has elapsed from 

the date of arrest if the arrest for which the expunction was 

sought was for an offense punishable as a Class B or A 

misdemeanor and if there was no felony charge arising out of the 

same transaction for which the person was arrested; 

(c) at least three years have elapsed 

from the date of arrest if the arrest for which the expunction 

was sought was for an offense punishable as a felony or if there 

was a felony charge arising out of the same transaction for 

which the person was arrested; or 

(d) the attorney representing the 

state certifies that the applicable arrest records and files are 

not needed for use in any criminal investigation or prosecution, 

including an investigation or prosecution of another personi or 

(ii) if presented at any time following the 

arrest, was dismissed or quashed, and the court finds that the 

indictment or information was dismissed or quashed because the 

person completed a pretrial intervention program authorized 

under Section 76.011, Government Code, because the presentment 

had been made because of mistake, false information, or other 

similar reason indicating absence of probable cause at the time 

of the dismissal to believe the person committed the offense, or 

because the indictment or information was void; or 

(B) prosecution of the person for the offense 

for which the person was arrested is no longer possible because 

the limitations period has expired. 

(a-1) Notwithstanding any other provision of this article, 

a person may not expunge records and files relating to an arrest 
that occurs pursuant to a warrant issued under Section 21 , 

Article 42.12. 

(a-2) Notwithstanding any other provision of this article, 

a person who intentionally or knowingly absconds from the 

jurisdiction after being released under Chapter 17 following an 

arrest is not eligible under Subsection (a) (2) (A) (i) (a), (b), or 

(c) or Subsection (a) (2) (B) for an expunction of the records and 

files relating to that arrest. 

(b) Except as provided by Subsection (c), a district court 

may expunge all records and files relating to the arrest of a 

person who has been arrested for commission of a felony or 

misdemeanor under the procedure established under Article 55.02 

if: 

(1) the person is: 

(A) tried for the offense for which the person 

was arrested; 

(B) convicted of the offense; and 

(C) acquitted by the court of criminal appeals 

or, if the period for granting a petition for discretionary 

review has expired, by a court of appeals; or 

(2) an office of the attorney representing the state 

authorized by law to prosecute the offense for which the person 

was arrested recommends the expunction to the appropriate 

district court before the person is tried for the offense, 

regardless of whether an indictment or information has been 

presented against the person in relation to the offense. 

(c) A court may not order the expunction of records and 

files relating to an arrest for an offense for which a person is 

subsequently acquitted, whether by the trial court, a court of 

appeals, or the court of criminal appeals, if the offense for 

which the person was acquitted arose out of a criminal episode, 

as defined by Section 3.01, Penal Code, and the person was 

convicted of or remains subject to prosecution for at least one 

other offense occurring during the criminal episode. 

(d) A person is entitled to have any information that 

identifies the person, including the person's name, address, 
date of birth, driver's license number, and social security 

number, contained in records and files relating to arrest of 

another person expunged if: 

(1) the information identifying the person asserting the 

entitlement to expunction was falsely given by the person 

arrested as the arrested person's identifying information 

without the consent of the person asserting the entitlement; 

and 

(2) the only reason for the information identifying the 

person asserting the entitlement being contained in the arrest 

records and files of the person arrested is that the information 

was sely given by the person arrested as the arrested 

person's identifying information. 

Added by Acts 1977, 65th Leg., p. 1880, ch. 747, Sec. I, eff. 

Aug. 29, 1977. 

Amended by Acts 1979, 66th Leg., p. 1333, ch. 604, Sec. I, eff. 

Aug. 27, 1979; Acts 1989, 71st Leg., ch. 803, Sec. I, eff. 

Sept. I, 1989; Subsec. (2) amended by Acts 1991, 72nd Leg., ch. 

14, Sec. 284(53), eff. Sept. I, 1991. Amended by Acts 1993, 

73rd Leg., ch. 900, Sec. 7.02(a), eff. Sept. I, 1993; Acts 

1999, 76th Leg., ch. 1236, Sec. I, eff. Aug. 30, 1999; Subsec. 

(a) amended by Acts 2001, 77th Leg., ch. 1021, Sec. I, eff. 

Sept. I, 2001; Subsec. (d) added by Acts 2001, 77th Leg., ch. 

945, Sec. I, eff. June 14, 2001; Subsec. (a) amended by Acts 

2003, 78th Leg., ch. 1236, Sec. I, eff. Sept. I, 2003. 

Amended by: 

Acts 2005, 79th Leg., Ch. 1309 (H.B. 3093), Sec. I, eff. 

September I, 2005. 

Acts 2009, 81st Leg., R.S., Ch. 840 (S.B. 1940), Sec. 5, 

eff. June 19, 2009. 

Acts 2009, 81st Leg., R.S., Ch. 1103 (H.B. 4833), Sec. 

17(b), eff. September I, 2009. 
Acts 2011, 82nd Leg., R. S. , Ch. 690 (H.B. 351) , Sec. I, 

eff. September I, 2011. 

Acts 2011, 82nd Leg., R. S. , Ch. 894 (S .B. 462) / Sec. 1, 

eff. September 1/ 2011. 
COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER 

OF THE EXPUNCTION

OF J.S.

§

§

§

§

§

§

No. 08-13-00275-CV

Appeal from

448th District Court

of El Paso County, Texas

(TC # 2013DCV2701)

O R D E R

The Appellant’s motion for rehearing, having been duly considered, is denied. 

Accordingly, it is ORDERED that said motion be and it is hereby denied.

IT IS SO ORDERED THIS 15TH DAY OF APRIL, 2015.

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.
COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN THE MATTER

§

§

No. 08-13-00275-CV

OF THE EXPUNCTION

§

Appeal from the

OF J.S.

§

448th District Court

of El Paso County, Texas

§

§

(TC# 2013DCV2701)

J U D G M E N T

The Court has considered this cause on the record and concludes there was no error in the 

judgment. We therefore affirm the judgment of the court below. We further order that Appellee 

recover from Appellant and his sureties, if any, see TEX.R.APP.P. 43.5, on the judgment and all 

costs, for which let execution issue. This decision shall be certified below for observance.

IT IS SO ORDERED THIS 4TH DAY OF MARCH, 2015.

ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rodriguez, and Hughes, JJ.