NUMBER 13-18-00659-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
EX PARTE A.R.Z.
On appeal from the 197th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Perkes, and Tijerina Memorandum Opinion by Justice Benavides
By two issues, appellant, the Texas Department of Public Safety (the Department),
appeals an order expunging all files and records relating to appellee A.R.Z.’s offense of
felony theft over $200, a third-degree felony. See TEX. PENAL CODE ANN. § 31.03 (Acts of
1975, 64th Leg., p. 914, ch. 342, Sec. 9, effective September 1, 1975). The Department
argues that: (1) A.R.Z. is not entitled to expunction because he served a term of
community supervision arising out of the arrest; and (2) the trial court’s order of
expunction is not supported by legally sufficient evidence. A.R.Z. also raises additional issues for us to consider. He: (1) challenges this Court’s jurisdiction because the original
amount in controversy was less than $250.00; (2) asks this Court to revisit its previous
decision regarding restricted appeals when the Department does not appear; (3) asks if
a presidential pardon on a companion federal case entitled A.R.Z. to an expunction under
article 55.01(a)(1)(B)(i) of the code of criminal procedure; and (4) asks whether he is
entitled to an expunction because he received judicial clemency under article 42 of the
code of criminal procedure because the trial court felt he was a “victim of circumstance.”1
We affirm.
I. BACKGROUND
A.R.Z. was indicted in 1976 for felony theft over $200 out of Duval County, Texas.
See id. His theft case was subsequently transferred to Cameron County, Texas. A.R.Z.
pleaded guilty to the offense as charged on June 6, 1977, and on June 17, 1977, he was
sentenced to two years’ imprisonment in the Texas Department of Corrections, with that
sentence probated for a period of ten years, and was ordered to pay restitution in the
amount of $8,805.00. On October 18, 1978, his probation was modified to include a credit
of $5,000.00 paid to the United States District Court for the Southern District of Texas in
cause number 75-C-45, a federal offense arising out of the same set of facts.2
On November 16, 1978, the trial court signed an order “Setting Aside Probation
and Dismissing Cause,” stating that on recommendation from the State that A.R.Z.’s
probationary period be reduced to that date and terminated. Additionally, the order
1 A.R.Z. did not file a separate notice of appeal, so he is not entitled to any relief on any issue he raises, other than jurisdiction. See TEX. R. APP. P. 25.1. 2 According to evidence presented to the trial court, A.R.Z. was granted a presidential pardon from
President Ronald Reagan for his federal case, following the grant of judicial clemency in this case.
2 allowed A.R.Z. to “withdraw his aforesaid plea of guilty to said original charge, and that
said cause, accusation and indictment on which said charge is based be, and is hereby,
dismissed; and that the said defendant herein be, and is hereby released from any and
all penalties and disabilities resulting from the offense of which he was convicted.”
II. JURISDICTION
A.R.Z. argues that this Court lacks jurisdiction over the Department’s appeal
because the underlying offense of felony theft fails to show an amount in controversy
exceeding $250.00. See TEX. CIV. PRAC. & REM. CODE § 51.012. However, nothing in the
expunction statute requires a theft amount in controversy to confer the court of appeals
with jurisdiction in an expunction related appeal. Although it is true that an expunction
proceeding is civil in nature, and the petitioner must show all of the statutory conditions
have been met, this case was a felony level offense when A.R.Z. was charged with the
theft and therefore, the district court had proper jurisdiction. See Ex Parte Vega, 510
S.W.3d 544, 548 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.); see also TEX.
PENAL CODE ANN. § 31.03. Therefore, we properly have jurisdiction because appellate
courts have jurisdiction over district court appeals. See TEX. R. APP. P. 25.1. We overrule
A.R.Z.’s first issue.
III. EXPUNCTION
By its first two issues, the Department argues that A.R.Z. was not entitled to an
expunction. It alleges that: (1) A.R.Z. served a term of community supervision for the theft
charge, therefore, rendering him ineligible for an expunction, and (2) that A.R.Z. failed to
present legally sufficient evidence to support his petition for expunction.
3 A. Standard of Review
We review a trial court’s ruling on a petition for expunction for an abuse of
discretion. Tex. Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—Austin
2014, pet. denied) (en banc). A trial court abuses its discretion when it renders a decision
that is (1) arbitrary, unreasonable, or without reference to guiding rules or principles, or
(2) without supporting evidence. Id. However, to the extent that the court’s ruling on an
expunction petition turns on a question of law, we review that ruling de novo because the
trial court has no discretion in determining what the law is or applying the law to the facts.
Id.; Tex. Dep’t of Pub. Safety v. Ibarra, 444 S.W.3d 735, 738 (Tex. App.—Corpus Christi–
Edinburg 2014, pet. denied).
B. Applicable Law
The remedy of expunction permits a person who has been arrested for the
commission of a criminal offense and released, and who meets certain other conditions,
to have the opportunity to have all records and files related to that arrest removed from
the government’s records. See TEX. CODE CRIM. PROC. ANN. art. 55.01; Ex Parte Vega,
510 S.W.3d 544, 548 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.). As previously
stated, although the statute is codified in the Texas Code of Criminal Procedure, an
expunction proceeding is civil in nature, and it is the petitioner’s burden to show that all
the statutory conditions have been met. Vega, 510 S.W.3d at 548. And because
expunction is not a right but a statutory privilege, each of the statutory conditions for
expunction are mandatory and exclusive. Id. It is an abuse of discretion for the trial court
to order an expunction when the statutory conditions have not been met because the
court possesses “no equitable power to permit expunction where it is not allowed” by
4 statute. Id.
Article 55.01(a) of the expunction statute governs a petitioner’s right to expunction
and provides, in relevant part, that:
(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 is:
(A) acquitted by the trial court, except as provided by Subsection (c); or
(B) convicted and subsequently:
(i) pardoned for a reason other than that described by Subparagraph (ii); or
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NUMBER 13-18-00659-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
EX PARTE A.R.Z.
On appeal from the 197th District Court of Cameron County, Texas.
MEMORANDUM OPINION Before Justices Benavides, Perkes, and Tijerina Memorandum Opinion by Justice Benavides
By two issues, appellant, the Texas Department of Public Safety (the Department),
appeals an order expunging all files and records relating to appellee A.R.Z.’s offense of
felony theft over $200, a third-degree felony. See TEX. PENAL CODE ANN. § 31.03 (Acts of
1975, 64th Leg., p. 914, ch. 342, Sec. 9, effective September 1, 1975). The Department
argues that: (1) A.R.Z. is not entitled to expunction because he served a term of
community supervision arising out of the arrest; and (2) the trial court’s order of
expunction is not supported by legally sufficient evidence. A.R.Z. also raises additional issues for us to consider. He: (1) challenges this Court’s jurisdiction because the original
amount in controversy was less than $250.00; (2) asks this Court to revisit its previous
decision regarding restricted appeals when the Department does not appear; (3) asks if
a presidential pardon on a companion federal case entitled A.R.Z. to an expunction under
article 55.01(a)(1)(B)(i) of the code of criminal procedure; and (4) asks whether he is
entitled to an expunction because he received judicial clemency under article 42 of the
code of criminal procedure because the trial court felt he was a “victim of circumstance.”1
We affirm.
I. BACKGROUND
A.R.Z. was indicted in 1976 for felony theft over $200 out of Duval County, Texas.
See id. His theft case was subsequently transferred to Cameron County, Texas. A.R.Z.
pleaded guilty to the offense as charged on June 6, 1977, and on June 17, 1977, he was
sentenced to two years’ imprisonment in the Texas Department of Corrections, with that
sentence probated for a period of ten years, and was ordered to pay restitution in the
amount of $8,805.00. On October 18, 1978, his probation was modified to include a credit
of $5,000.00 paid to the United States District Court for the Southern District of Texas in
cause number 75-C-45, a federal offense arising out of the same set of facts.2
On November 16, 1978, the trial court signed an order “Setting Aside Probation
and Dismissing Cause,” stating that on recommendation from the State that A.R.Z.’s
probationary period be reduced to that date and terminated. Additionally, the order
1 A.R.Z. did not file a separate notice of appeal, so he is not entitled to any relief on any issue he raises, other than jurisdiction. See TEX. R. APP. P. 25.1. 2 According to evidence presented to the trial court, A.R.Z. was granted a presidential pardon from
President Ronald Reagan for his federal case, following the grant of judicial clemency in this case.
2 allowed A.R.Z. to “withdraw his aforesaid plea of guilty to said original charge, and that
said cause, accusation and indictment on which said charge is based be, and is hereby,
dismissed; and that the said defendant herein be, and is hereby released from any and
all penalties and disabilities resulting from the offense of which he was convicted.”
II. JURISDICTION
A.R.Z. argues that this Court lacks jurisdiction over the Department’s appeal
because the underlying offense of felony theft fails to show an amount in controversy
exceeding $250.00. See TEX. CIV. PRAC. & REM. CODE § 51.012. However, nothing in the
expunction statute requires a theft amount in controversy to confer the court of appeals
with jurisdiction in an expunction related appeal. Although it is true that an expunction
proceeding is civil in nature, and the petitioner must show all of the statutory conditions
have been met, this case was a felony level offense when A.R.Z. was charged with the
theft and therefore, the district court had proper jurisdiction. See Ex Parte Vega, 510
S.W.3d 544, 548 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.); see also TEX.
PENAL CODE ANN. § 31.03. Therefore, we properly have jurisdiction because appellate
courts have jurisdiction over district court appeals. See TEX. R. APP. P. 25.1. We overrule
A.R.Z.’s first issue.
III. EXPUNCTION
By its first two issues, the Department argues that A.R.Z. was not entitled to an
expunction. It alleges that: (1) A.R.Z. served a term of community supervision for the theft
charge, therefore, rendering him ineligible for an expunction, and (2) that A.R.Z. failed to
present legally sufficient evidence to support his petition for expunction.
3 A. Standard of Review
We review a trial court’s ruling on a petition for expunction for an abuse of
discretion. Tex. Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—Austin
2014, pet. denied) (en banc). A trial court abuses its discretion when it renders a decision
that is (1) arbitrary, unreasonable, or without reference to guiding rules or principles, or
(2) without supporting evidence. Id. However, to the extent that the court’s ruling on an
expunction petition turns on a question of law, we review that ruling de novo because the
trial court has no discretion in determining what the law is or applying the law to the facts.
Id.; Tex. Dep’t of Pub. Safety v. Ibarra, 444 S.W.3d 735, 738 (Tex. App.—Corpus Christi–
Edinburg 2014, pet. denied).
B. Applicable Law
The remedy of expunction permits a person who has been arrested for the
commission of a criminal offense and released, and who meets certain other conditions,
to have the opportunity to have all records and files related to that arrest removed from
the government’s records. See TEX. CODE CRIM. PROC. ANN. art. 55.01; Ex Parte Vega,
510 S.W.3d 544, 548 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.). As previously
stated, although the statute is codified in the Texas Code of Criminal Procedure, an
expunction proceeding is civil in nature, and it is the petitioner’s burden to show that all
the statutory conditions have been met. Vega, 510 S.W.3d at 548. And because
expunction is not a right but a statutory privilege, each of the statutory conditions for
expunction are mandatory and exclusive. Id. It is an abuse of discretion for the trial court
to order an expunction when the statutory conditions have not been met because the
court possesses “no equitable power to permit expunction where it is not allowed” by
4 statute. Id.
Article 55.01(a) of the expunction statute governs a petitioner’s right to expunction
and provides, in relevant part, that:
(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 is:
(A) acquitted by the trial court, except as provided by Subsection (c); 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:
(i) has not been presented against a person at any time following the arrest.
5 TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1), (2).
C. Discussion
1. Entitlement to Expunction
A.R.Z. argues that he was entitled to an expunction based on dismissal under
article 55.01(a)(1)(B)(ii). See id. art. 55.01(a)(1)(B)(ii). This case is different than a typical
expunction contest. Here, ARZ was granted judicial clemency by the convicting trial court.
Judicial clemency is within the trial court’s sole discretion. Cuellar v. State, 70 S.W.3d
815, 819 (Tex. Crim. App. 2002). When a trial judge believes that a person on community
supervision is completely rehabilitated and is ready to re-take his place as a law-abiding
member of society, the trial judge may
set aside the verdict or permit the defendant to withdraw his plea. A judge acting under this subsection shall dismiss the accusation, complaint, information or indictment against the defendant. A defendant who receives a discharge and dismissal under this subsection is released from all penalties and disabilities resulting from the offense or crime of which he has been convicted or to which he has pleaded guilty.
Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 42A.701(f)); State v. Perez, 494 S.W.3d 901,
904 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.).
A.R.Z. was granted judicial clemency, not because he completed his term of
community supervision successfully, but due to underlying facts that came out of his case.
Based on A.R.Z.’s Exhibit C from the expunction hearing, it was apparent the trial court
found A.R.Z. should be granted relief because it stated it felt A.R.Z. was a “victim of
circumstances in all of the events leading up to the charges against him” and found him
to fall under the “actual innocence” provision of the code. See TEX. CODE CRIM. PROC.
ANN. art. 55.01(a)(1)(B)(ii). Therefore, we agree that A.R.Z.’s expunction was properly
6 granted under article 55.01(a)(1)(B)(ii). See id.
Article 55.01(a) begins by providing that “[a] person who has been placed under a
custodial or noncustodial arrest” may “have all records and files relating to the arrest”
expunged if certain conditions are met. See id. art. 55.01(a). Where an arrest is made
pursuant to a charge for a single offense and the person is acquitted or convicted and
then pardoned pursuant to article 55.01(a)(1)(B), then article 55.01(a)(1) entitles the
person to expunction of all records and files relating to the arrest. State v. T.S.N., 547
S.W.3d 617, 621 (Tex. 2018). We overrule the Department’s first issue.
2. Evidence was Legally Sufficient
By its second issue, the Department argues that A.R.Z. failed to show legally
sufficient evidence that his arrest did not result in community supervision. However,
A.R.Z. did testify at the expunction hearing and stated that the allegations against him
involved other family members of his that were involved in the county government. A.R.Z.
also entered exhibits into evidence during the hearing to support his testimony.
We previously determined that A.R.Z. was entitled to an expunction because he
was granted judicial clemency and fell under the “actual innocence” provision. See TEX.
CODE CRIM. PROC. ANN. art. 55.01(a)(1)(B)(ii). Therefore, his community supervision
status was not applicable to the provision of the code of criminal procedure that his
expunction was granted under, and the evidence presented to the trial court was legally
sufficient to support his expunction under article 55.01(a)(1)(B)(ii). See id. We overrule
the Department’s second issue.
7 IV. CONCLUSION
We affirm the trial court’s order granting A.R.Z.’s expunction.
GINA M. BENAVIDES, Justice
Delivered and filed the 9th day of April, 2020.