## NO. 12

- 17

- 00309

- CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

EX PARTE:

CALEB DALEY §
§
§ APPEAL FROM THE 7TH

JUDICIAL DISTRICT COURT

S MITH COUNTY, TEXAS

MEMORANDUM OPINION The State of Texas appeals the trial court’s order granting an expunction of Caleb Daley’s arrest for online solicitation of a minor. In a single issue, the State c ontends the trial court erred by granting the expunction. We affirm

.

B ACKGROUND Daley was arrested on October 28, 2010, and subsequently charged with online solicitation of a minor that allegedly occurred on or about October 7, 2010. Pursuant to a plea agreement, Daley pleaded “guilty” and the court sentenced him to ten years deferred adjudication community supervision. While Daley was serving his community supervision, the Texas Court of Criminal Appeals held that Section 33.021(b) of the Texas Penal Code, the statute applicable to Daley’s arrest, was unconstitutionally overbroad. See Ex parte Lo , 424 S.W.3d 10 (Tex. Crim. App. 2013). Daley was subsequently released from the conditions of his community supervision and his criminal case was dismissed. In May 2017, Daley filed a petition to expunge all criminal records and files relating to the October 28, 2010 arrest. In his motion, Daley alleged that he had been released and the charge did not result in a final conviction. He further contended th at the indictment had been dismissed and that his case was vacated, set aside, and any and all orders in the case were dismissed. Following a hearing, the trial court granted Daley’s petition. This appeal followed.2 E XPUNCTION In its only issue, the Stat e contends Daley was not entitled to expunction of his arrest record because he served community supervision as a result of the arrest. Standard of Review We review a trial court’s order granting or denying a petition for expu nction for abuse of discretion

. See Heine v. Tex. Dep’t of Pub. Safety
, 92 S.W.3d 642, 646 (Tex. App.

— Austin 2002, pet. denied). A trial court abuses its discretion if it acts “without reference to an y guiding rules or principles.” E.I. du Pont de Nemours & Co. v. Robinson , 923 S.W. 2d 549, 558 (Tex. 1995). If an expunction ruling turns on a question of law, we review it de novo because a “trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” See Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992). A trial court abuses its discretion if it misin terprets or misapplies the law. Id

. Governing Law Although the law that governs expunctions is part of the code of criminal procedure, an expunction proceeding is civil in nature and is governed b y t he rules of civil procedure. See Carson v. State , 65 S.W.3d 774, 784 (Tex. App.

— Fort Worth 2001, no pet.). Expunction is not a constitutional or common law right, bu t purely a statutory privilege. Tex. Dep’t of Pub. Safety v. Nail , 305 S.W.3d 673, 675 ( Tex. App.

— Austin 2010, no pet.). The trial court must strictly comply with statutory requirements, and has no equitable power to extend th e clear meaning of the statute. Harris Cty. Dist. Attorney v. Lacafta , 965 S.W.2d 568, 569 (Tex. App.

— Houston [14th Dist.] 1997, no pet.). Texas Code of Criminal Procedure Article 55.01(a)(2) states, in relevant part, that 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 record s 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, (3) the charge, if any, is no longer pending, and (4) there was no court

- ordered community supervision under Ar ticle 42.12 for the offense, unless the of fense is a Class C misdemeanor. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 55.01(a)(2) (West 2018). “The traditi onal and primary purpose of the expunction statute is to remov e records of wrongful arrests.” S.J. v. Stat e , 438 S.W.3d 838, 841 (Tex. App.

— Fort Worth 2014, no pet.). Thus, t he expunction statute is “arrest

based” and expunction is not available for less than all offenses arising from one arrest

. Id. at3

844 ; but see State v. T.S.N. , No. 17

- 0323, 2018 WL 2169 785, at *6 (Tex . March 1, 2018) (holding that A rticle 55.01 is not entirely arrest

- based but declining to address the specifics of 55.01(a)(2)); s ee also B LACK ’ S L AW D ICTIONARY 116, 248, 1110 (8th ed. 2004) (defining an “arrest,” in pertinent part, as a “t aking or keeping of a person in custody by legal authority, esp. in response to a criminal charge,” whereas a “charge” accuses someone of an offense, i.e., a “violation of the law”). In other words, a person is not entitled to have any arrest records
expu nged under Article 55.01(a)(2) when a charge is dismissed, but that dismissal results in a final conviction of any charg e arising from the same arrest. See Tex. Dep’t of Public Safety v. G.B.E.
, 459 S.W.3d 622, 629 (Tex. App.

– Austin 2014, pet. denied); In re A.G. , 417 S.W.3d 652, 655 (Tex. App.

— El Paso 2013, no pet.) (r eversing trial court’s grant of expunction of DWI charge, concluding petitioner failed to show charge had not resulted in final conviction under current version of Article 55.01 because peti tioner pleaded guilty to reckless driving). Analysis To be entitled to an expunction under Article 55.02(a)(2), Daley had the burden of showing all of the following requirements: (1) he had been released; (2) the charge, if any, has not resulted in a fin al conviction; (3) the charge, if any, is no longer pending; and (4) there was

no court

- ordered community supervision for the offense. See T EX

. C ODE C RIM

. P RO C

. A NN

. art. 55.01(a)(2); Ex parte Green , 373 S.W.3d 111, 113 (Tex. App.

— San Antonio 2012, no pet .). The State contends that Daley did not meet the fourth requirement for expunction. Specifically, the State argues that because Daley served community supervision, he is not entitled to an expunction under Article 55.01(a)(2). The record shows Daley was arrested on October 28, 2010, and charged with online solicitation of a minor. He pleaded guilty and was sentenced to ten years of deferred adjudication community supervision. It is undisputed, and the record shows, that the October 28, 2010 arrest resulted in court

- ordered community supervision. See Tex. Dep’t of Pub. Safety v.
Moran , 949 S.W.2d 523, 527 (Tex. App.

— San Antonio 1997, no writ) (deferred adjudication is

court

- ordered community supervision even if defendant not under any court

- imposed conditions other than paying a fine and court costs). Consequently, it would appear that because the charge resulted in community supervision, Daley is not entitled to expunction of any records relating to his October 28, 2010 arrest. See Ex parte T.C.
, No. 12

– 13

– 00138

– CV, 2014 WL 4104806, at *3 (Tex. App.

— Tyler Aug. 20, 2014, no pet.) (mem. op.) (because court imposed deferred4

adjudication, T.C. received “court ordered community supervision” under Article 42.12 for purposes of expunction statute, and was ineligible for expunctio n of her theft arrest records); see also Nail , 305 S.W.3d at 679

– 85 (defendant who successfully completed deferr ed adjudication not entitled to expunction ). However, i n the trial court, Daley argued that he is entitled to an expun ction because his case was vacated after the Texas Court of Criminal Appeals held a portion of the online solicitation statute unconsti tutional. As a result of the Texas Court of Criminal Appeals’s decision in Ex parte Lo , Daley filed a motion to set asid e his case and “vacate any and all orders” in his case. Following a hearing, the trial court granted the motion and vacated any and all orders in Daley’s online solicitation of a minor case. This necessarily included the order of deferred adjudication wh ich placed Daley on community supervision. As a result of the order being vacated , it is as if the trial court never ordered Daley to serve community supervision. See Vacate, B LACK ’ S L AW D ICTIONARY ( 10th ed. 2014 ) (“to nullify or cancel; make void; inval idate) ; Martinez v. State , 194 S.W.3d 699, 701 (Tex. App.

— Houston [14 th ] no pet

. ) (when an original judgment imposing probation is void, there is no judgment imposing community supervision and therefore nothing to revoke). Therefore, Daley met all of the requirements of Article 55.01(a)(2). See Harris Cty. Dist. Attorney’s Office v. D.W.B. , 860 S.W.2d 719, 722 (Tex. App.

— Houston [1st Dist.] 1993, no writ) (holding that order of deferred adjudication declared invalid when habeas relief granted, thus, appel lee met all requirements of expunction statute). Accordingly, we hold that the trial court did not abuse its discretion when it granted Daley’s petition for expunction because the community supervision order was vacated

. See id.
We overrule the State’s s ole issue.

D ISPOSITION Having overruled the State’s single issue, we affirm the trial court’s judgment granting expunction of Daley’s October 28, 2010 arrest.
B RIAN H OYLE Justice
Opinion delivered June 20, 2018. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J. ( PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 20 , 2018

NO. 12

- 17

- 00309

- CV

EX PARTE: CALEB DALE Y

Appeal from the 7th District Court of Smith County, Texas (Tr.Ct.No. 17

- 1109

- A)
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the court below be in all things affirmed , and that this decision be certified to the court below for observance.

Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.