### OPINION N o. 04

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- CV EX PARTE Matthew E. GREEN From the 288th Judicial District Court , Bexar County, Texas Trial Court No. 2010

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- 17600 The Honorable Renee F. McElhaney , Judge Presiding Opinion by: Sandee Bryan Marion, Justice Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice Delivered and Filed: February 1, 2012 REVERSED AND RENDERED Appellant, the Department of Public Safety (DPS), appeals the trial court’s order expunging the records of appellee, Matthew Green, for his arrest for unlawful carrying of a weapon. We reverse the decision of the trial court and render judgment denying Gr een’s petition for expunction of his records. BACKGROUND Green was arrested on September 5, 2006, for unlawfully carrying a weapon. He entered a plea of nolo contendere to a misdemeanor charge and was placed on six

- months deferred adjudication. On Octo ber 10, 2010, Green filed a petition to expunge his criminal records related to his arrest for this charge. In its answer, DPS filed a general denial and an affirmative defense04

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- asserting that Green was not entitled to expunction because he received deferr ed adjudication for that offense. On March 24, 2011, the trial court ordered an expunction. DISCUSSION On appeal, DPS contends Green was not entitled to expunction under article 55.01 of the Texas Code of Criminal Procedure because he received deferred ad judication probation for that offense. Further, DPS contends Green failed to establish by legally sufficient evidence that he had not received court

- ordered community supervision, thereby failing to comply with the statutory requirements for expunction un der the Texas Code of Criminal Procedure. T EX . C ODE C RIM . P ROC . A NN . art. 42.12 (West 2006) (“Community supervision”); id. art. 55.01(a)(2) (“Right to Expunction”). We review a trial court’s ruling on a petition for expunction for an abuse of discretion
. 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 any guiding rules or principles.” E.I. du Pont de Nemours & Co. , Inc. v. Robinson , 923 S.W.2d 549, 558 (Tex. 1995). To the extent a ruling on expunction turns on a question of law, we review the ruling de novo because “[a] trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” Walker v. Pack er , 827 S.W.2d 833, 840 (Tex. 1992). Thus, a trial court abuses its discretion if it misapplies or misinterprets the law. Id. We review the sufficiency of the evidence under the well

- established standards of review. See City of Keller v. Wilson , 168 S. W.3d 802, 827 (Tex. 2005); Garza v. Alviar , 395 S.W.2d 821, 823 (Tex. 1965). An expunction proceeding is civil rather than criminal in nature, although the expunction statute is located in the Texas Code of Criminal Procedure. Tex. Dep’t of Pub. Safety v. J.H.J. , 274 S.W.3d 803, 806 (Tex. App.

— Houston [14th Dist.] 2008, no pet.). The right to expunction04

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- is a statutory privilege. Id
. ; Tex. Dep’t of Pub. Safety v. Wallace , 63 S.W.3d 805, 806 (Tex. App.

— Austin 2001, no pet.). In order to be entitled to an expunction, Green had the burden of proving that all of the statutory requirements were satisfied. State v. Knight , 813 S.W.2d 210, 212 (Tex. App.

— Houston [14th Dist.] 1991, no writ). In relevant part, article 55.01 of the Texas Code of Criminal Procedur e provides that a person is entitled to expunction of an arrest record if “the person is tried for the offense for which the person was arrested and is .
. . acquitted by the trial court .
. . or convicted and subsequently pardoned; or .
. . 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 .
. . .” T EX . C ODE C RIM . P ROC . art . 55.01 (emphasis added). On January 31, 2007, a hearing was held on Green’s plea agreement to the charge of unlawful carrying of a weapon. The record indicates that Green entered a plea of “no contest” to which the trial court assessed a $2,000 fine, granted “six months deferred adjudication, unsupervised,” and assessed eighty hours of community service. The trial court, however, indicated it would waive the community service requirement if Green paid $500 to a non

- profit organization. Additionally, the record indicates Green re quested the deferred adjudication be unsupervised “so that he might have [his arrest record] potentially expunged in the future.” The trial court granted this request by specifically noting that his deferred adjudication was “unsupervised under 42.12 of t he Code of Criminal Procedure.” Subsequently, Green paid the fine and other required fees and his deferred adjudication was terminated on February 9, 2007, as indicated in the criminal docket sheet from the trial court. Because Green was neither acquitt ed by the trial court nor convicted and subsequently pardoned, he was required to show there was no court

- ordered community supervision following04

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- his arrest. See id. art . 55.01(2)(B). G reen argues there was no court

- ordered community supervision because he was not placed “under a continuum of programs and sanctions.” Id. art. 42.12, § 2(2) (defining “Community supervision”). We disagree. The record shows a $2000 fine was imposed and we conclude this fine constitutes a sanction. Also, t he record clearl y indicates Green received deferred adjudication. “Misdemeanor deferred

- adjudication constitutes ‘court ordered community supervision’ under article 42.12 for purposes of the expunction statute and renders a defendant ineligible for expunction of arrest r ecords.” Wallace , 63 S.W.3d at 807. As a result, we agree with DPS that Green was placed on court

- ordered community supervision because “[d]eferred adjudication is a form of community supervision.” Tex. Dep’t of Pub. Safety v. Dahlquist , No. 01

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- 00559

- CV, 2010 WL 375930, at *2 (Tex. App.

— Houston [1st Dist.] Feb. 4, 2010, no pet.) (citing T EX . C ODE C RIM . P ROC . art . 42.12, § 5 ). Also, Green argues the obligations to pay the fine and the donation to the non

- profit were independent of the deferred adjudication. Again, we disagree. A review of the record indicates the fines and court costs were assessed contemporaneously and togeth er with the deferred adjudication sentence. See Tex. Dept of Pub. Safety v. Nail , 305 S.W.3d 673, 683 (Tex. App.

— Austin 2010, no pet.) (concluding community supervision includes a sentence whereby defendant must pay a fine as a condition of his deferred a djudication). Green also argues he did not receive court

- ordered community supervision because the trial court granted his request that his deferred adjudication be “unsupervised” so that he could later try to expunge the records. As a result, Green conte nds he did not have to “report” to a probation officer and was, therefore, not technically supervised by the court. However, “‘court ordered community supervision under Article 42.12’ is not limited to and does not require such conditions.” Id
. The cond itions imposed on Green

— that he pay a fine and court costs

— suffice04

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- to establish that he was under community supervision as stated in article 42.12 of the Code of Criminal Procedure. Id. at 683

– 84. If Green had not paid these amounts, we do not find suppo rt in the record that the court would have dismissed the charge. Finally, the fact that the trial court notated the deferred adjudication was unsupervised and “the fact that [Green] may have intended or ‘hoped’ that the ‘deferred judgment’ would avoid th e prohibition against expunction where ‘community supervision’ has been imposed” does not control. Id. at 684. The Legislature has not provided such an exception and any attempt by the court to circumvent this requirement was in error. Id. at 684

– 85. T he purpose of the expunction statute is meant to allow those persons who are wrongfully arrested to expunge their arrest records and not to allow a person who is arrested and pleads guilty or nolo contendere and receives probation to expunge his records fo r that offense. See Knight , 813 S.W.2d at 212. Consequently, we conclude there is legally insufficient evidence to support the trial court’s finding that court

- ordered community supervision was not imposed on Green. As a result, Green was not entitled to expunction under article 55.01 of the Texas Code of Criminal Procedure. Accordingly, the trial court erred in granting Green’s petition for expunction. CONCLUSION We reverse the trial court’s judgment and render judgment denying expunction. Additionally, pursuant to DPS’s prayer for relief, we order all documents that were turned over to the trial court, or to Green or his counsel, be returned to the submitting age ncies. See Ex Parte Elliot , 815 S.W.2d 251, 252 (Tex. 1991) (holding that reversal of an order of expunction applies to all respondents in the trial court, even if they did not participate in the appeal).
Sandee Bryan Marion, Justice