IN THE TENTH COURT OF APPEALS
No. 10-16-00278-CV
EX PARTE R.L.S.
From the 77th District Court Limestone County, Texas Trial Court No. 1096-A
MEMORANDUM OPINION
R.L.S. appeals the trial court’s denial of his petition for expunction. Because R.L.S.
was not entitled to expunction, the trial court’s judgment is affirmed.
BACKGROUND
The material facts are not in dispute. In 1985, R.L.S. was indicted for the offense
of burglary of a habitation in Freestone County. In 1986, R.L.S. turned himself in to
Freestone County officials and left moments later, having posted bail for the offense. The
next month, R.L.S. was arrested in Limestone County for driving with a suspended
license (DWLS). He was also arrested on a warrant for the burglary of a habitation offense
in Freestone County for which he had already posted bail and on warrants from the City of Mexia.1 According to R.L.S., Limestone County officials learned that R.L.S. was not
the person to whom the City of Mexia citations were issued and that the warrant from
Freestone County regarding the burglary of a habitation offense was inactive. R.L.S. was
permitted to post bail for the DWLS offense. Three days after this arrest in Limestone
County, R.L.S. pled guilty to the burglary of a habitation offense and received deferred
adjudication community supervision. In 2016, R.L.S. filed his petition for expunction of
the Limestone County arrest.2
PRELIMINARY MATTERS
Because several matters raised by R.L.S. may dispose of the appeal, we discuss
those matters first before determining R.L.S.’s issues regarding whether the trial court
erred in denying the petition for expunction.
Standing
We first consider R.L.S.’s standing argument. In response to the County’s motion
for extension of time to file its appellate brief after R.L.S. had filed his brief, R.L.S. asserted
that the County did not have “standing” because it did not possess any records to be
expunged. He further asserted that nothing in the motion for extension of time stated
that the County represented any other party. Thus, his argument continued, the County
1 The arrest report in the record indicates that R.L.S. was arrested for DWLS and for burglary of a habitation from Freestone County. It does not indicate that R.L.S. was arrested for warrants from the City of Mexia. This discrepancy is immaterial to the disposition of this appeal.
2 Since the petition for expunction was filed, the statute has been amended. Reference in this opinion to the statute regarding expunctions is to the 2011 version of the statute which was in effect at the time the petition was filed.
Ex parte R.L.S. Page 2 was not a party and did not represent a party that had standing. When we granted the
County’s motion for extension of time to file its brief, we did so without prejudice to
R.L.S., or this Court, raising a standing issue at a future date. The County then briefed
the issue of standing and R.L.S. responded.
As a general rule, to have standing, unless it is conferred by statute, a plaintiff
must demonstrate that he or she possesses an interest in a conflict distinct from that of
the general public, such that the defendant's actions have caused the plaintiff some
particular injury. Williams v. Huff, 52 S.W.3d 171, 178 (Tex. 2001) (emphasis added). Here,
the County was not the plaintiff in this expunction proceeding. Further, the County is
not the appellant. See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 3(a) (amended 2011)
(“…an agency protesting the expunction may appeal….). Thus, the County’s standing is
not the issue.
R.L.S.’s assertions, as best as we can decipher, pertain to whether the County had
the capacity, or authority, to act when it did not have any records to be expunged.
Although courts and parties have sometimes blurred the distinction between standing
and capacity, there is a distinction, nonetheless. Austin Nursing Ctr., Inc. v. Lovato, 171
S.W.3d 845, 848 (Tex. 2005). See e.g. In re R.A., 417 S.W3d 569, 580 (Tex. App.—El Paso,
2013, no pet.) (holding the District Attorney and the County had standing as appellees in
an expunction appeal). A plaintiff has standing when it is personally aggrieved
regardless of whether it is acting with legal authority; a party has capacity when it has
Ex parte R.L.S. Page 3 the legal authority to act, regardless of whether it has a justiciable interest in the
controversy. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-849 (Tex. 2005);
Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996).
While standing may be raised for the first time on appeal, a challenge to a party’s
capacity, on the other hand, must be raised by a verified pleading in the trial court or else
it is waived. See Lovato, 171 S.W.3d at 849; see also Sixth RMA Partners, L.P. v. Sibley, 111
S.W.3d 46, 56 (Tex. 2003) (“An argument that an opposing party does not have the
capacity to participate in a suit can be waived by a party's failure to properly raise the
issue in the trial court.”). Because R.L.S. did not file a verified plea contesting the
County’s capacity to participate in the expunction proceeding, his challenge is waived.
Jurisdiction
R.L.S. asserts in his second issue that the trial court erred in refusing to exercise or
retain jurisdiction over the expunction case because a petitioner is allowed to file a
petition for expunction in the County where the arrest occurred.
Jurisdiction is the power to hear and determine the matter in controversy
according to established rules of law. Cleveland v. Ward, 285 S.W. 1063, 1069 (Tex. 1926).
If a court has no jurisdiction, it should proceed no further with the case other than to
dismiss it. See Hall v. Wilbarger County, 37 S.W.2d 1041, 1046 (Tex. Civ. App.—Amarillo
1931), affirmed, Wilbarger County v. Hall, 55 S.W.2d 797 (Tex. 1932). See also Dooly v. State,
33 Tex. 712, 712 (1871) (…”this court has no jurisdiction of the case for any purpose
whatever, and the only order this court can make in the case, is to dismiss it.”).
Ex parte R.L.S. Page 4 In this case, had the court not exercised or retained its jurisdiction, the court would
have dismissed R.L.S.’s petition for expunction. It did not. Rather, the trial court ruled
on the merits of the petition and denied it. Accordingly, the trial court retained and
exercised its jurisdiction, and R.L.S.’s second issue is overruled.
Due Process
In his fourth issue, R.L.S. contends his right to due process was violated because,
although a hearing was held on his petition, he was denied the right to present his case
in a meaningful way. R.L.S. did not raise a due process argument before the trial court.
Accordingly, R.L.S.’s fourth issue is not preserved. See TEX. R. APP. P. 33.1; Kaufman v.
Comm'n for Lawyer Discipline, 197 S.W.3d 867, 875 (Tex. App.—Corpus Christi 2006, pet.
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IN THE TENTH COURT OF APPEALS
No. 10-16-00278-CV
EX PARTE R.L.S.
From the 77th District Court Limestone County, Texas Trial Court No. 1096-A
MEMORANDUM OPINION
R.L.S. appeals the trial court’s denial of his petition for expunction. Because R.L.S.
was not entitled to expunction, the trial court’s judgment is affirmed.
BACKGROUND
The material facts are not in dispute. In 1985, R.L.S. was indicted for the offense
of burglary of a habitation in Freestone County. In 1986, R.L.S. turned himself in to
Freestone County officials and left moments later, having posted bail for the offense. The
next month, R.L.S. was arrested in Limestone County for driving with a suspended
license (DWLS). He was also arrested on a warrant for the burglary of a habitation offense
in Freestone County for which he had already posted bail and on warrants from the City of Mexia.1 According to R.L.S., Limestone County officials learned that R.L.S. was not
the person to whom the City of Mexia citations were issued and that the warrant from
Freestone County regarding the burglary of a habitation offense was inactive. R.L.S. was
permitted to post bail for the DWLS offense. Three days after this arrest in Limestone
County, R.L.S. pled guilty to the burglary of a habitation offense and received deferred
adjudication community supervision. In 2016, R.L.S. filed his petition for expunction of
the Limestone County arrest.2
PRELIMINARY MATTERS
Because several matters raised by R.L.S. may dispose of the appeal, we discuss
those matters first before determining R.L.S.’s issues regarding whether the trial court
erred in denying the petition for expunction.
Standing
We first consider R.L.S.’s standing argument. In response to the County’s motion
for extension of time to file its appellate brief after R.L.S. had filed his brief, R.L.S. asserted
that the County did not have “standing” because it did not possess any records to be
expunged. He further asserted that nothing in the motion for extension of time stated
that the County represented any other party. Thus, his argument continued, the County
1 The arrest report in the record indicates that R.L.S. was arrested for DWLS and for burglary of a habitation from Freestone County. It does not indicate that R.L.S. was arrested for warrants from the City of Mexia. This discrepancy is immaterial to the disposition of this appeal.
2 Since the petition for expunction was filed, the statute has been amended. Reference in this opinion to the statute regarding expunctions is to the 2011 version of the statute which was in effect at the time the petition was filed.
Ex parte R.L.S. Page 2 was not a party and did not represent a party that had standing. When we granted the
County’s motion for extension of time to file its brief, we did so without prejudice to
R.L.S., or this Court, raising a standing issue at a future date. The County then briefed
the issue of standing and R.L.S. responded.
As a general rule, to have standing, unless it is conferred by statute, a plaintiff
must demonstrate that he or she possesses an interest in a conflict distinct from that of
the general public, such that the defendant's actions have caused the plaintiff some
particular injury. Williams v. Huff, 52 S.W.3d 171, 178 (Tex. 2001) (emphasis added). Here,
the County was not the plaintiff in this expunction proceeding. Further, the County is
not the appellant. See TEX. CODE CRIM. PROC. ANN. art. 55.02, § 3(a) (amended 2011)
(“…an agency protesting the expunction may appeal….). Thus, the County’s standing is
not the issue.
R.L.S.’s assertions, as best as we can decipher, pertain to whether the County had
the capacity, or authority, to act when it did not have any records to be expunged.
Although courts and parties have sometimes blurred the distinction between standing
and capacity, there is a distinction, nonetheless. Austin Nursing Ctr., Inc. v. Lovato, 171
S.W.3d 845, 848 (Tex. 2005). See e.g. In re R.A., 417 S.W3d 569, 580 (Tex. App.—El Paso,
2013, no pet.) (holding the District Attorney and the County had standing as appellees in
an expunction appeal). A plaintiff has standing when it is personally aggrieved
regardless of whether it is acting with legal authority; a party has capacity when it has
Ex parte R.L.S. Page 3 the legal authority to act, regardless of whether it has a justiciable interest in the
controversy. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848-849 (Tex. 2005);
Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996).
While standing may be raised for the first time on appeal, a challenge to a party’s
capacity, on the other hand, must be raised by a verified pleading in the trial court or else
it is waived. See Lovato, 171 S.W.3d at 849; see also Sixth RMA Partners, L.P. v. Sibley, 111
S.W.3d 46, 56 (Tex. 2003) (“An argument that an opposing party does not have the
capacity to participate in a suit can be waived by a party's failure to properly raise the
issue in the trial court.”). Because R.L.S. did not file a verified plea contesting the
County’s capacity to participate in the expunction proceeding, his challenge is waived.
Jurisdiction
R.L.S. asserts in his second issue that the trial court erred in refusing to exercise or
retain jurisdiction over the expunction case because a petitioner is allowed to file a
petition for expunction in the County where the arrest occurred.
Jurisdiction is the power to hear and determine the matter in controversy
according to established rules of law. Cleveland v. Ward, 285 S.W. 1063, 1069 (Tex. 1926).
If a court has no jurisdiction, it should proceed no further with the case other than to
dismiss it. See Hall v. Wilbarger County, 37 S.W.2d 1041, 1046 (Tex. Civ. App.—Amarillo
1931), affirmed, Wilbarger County v. Hall, 55 S.W.2d 797 (Tex. 1932). See also Dooly v. State,
33 Tex. 712, 712 (1871) (…”this court has no jurisdiction of the case for any purpose
whatever, and the only order this court can make in the case, is to dismiss it.”).
Ex parte R.L.S. Page 4 In this case, had the court not exercised or retained its jurisdiction, the court would
have dismissed R.L.S.’s petition for expunction. It did not. Rather, the trial court ruled
on the merits of the petition and denied it. Accordingly, the trial court retained and
exercised its jurisdiction, and R.L.S.’s second issue is overruled.
Due Process
In his fourth issue, R.L.S. contends his right to due process was violated because,
although a hearing was held on his petition, he was denied the right to present his case
in a meaningful way. R.L.S. did not raise a due process argument before the trial court.
Accordingly, R.L.S.’s fourth issue is not preserved. See TEX. R. APP. P. 33.1; Kaufman v.
Comm'n for Lawyer Discipline, 197 S.W.3d 867, 875 (Tex. App.—Corpus Christi 2006, pet.
denied) (“A party waives the right to raise a constitutional claim such as due process on
appeal if that claim is not presented to the trial court.”). See also In the Interest of L.M.I.,
119 S.W.3d 707, 710-11 (Tex. 2003).
RULING ON THE PETITION FOR EXPUNCTION
R.L.S. contests the trial court’s decision to deny the petition for expunction in his
first and third issues on appeal. R.L.S. asserts the trial court’s decision is not supported
by law (Issue I) or the evidence (Issue III).
Generally, we review a trial court's ruling on a petition for expunction under an
abuse of discretion standard; except that to the extent an expunction ruling 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 in applying the law to the facts. Henry v. State, 513 S.W.3d
750, 752 (Tex. App.—San Antonio 2017, no pet.). However, when addressing a challenge
Ex parte R.L.S. Page 5 to the sufficiency of the evidence to support the trial court’s expunction ruling, we use
the traditional standards for a sufficiency review. See In re S.D., 349 S.W.3d 76, 79-80 (Tex.
App.—El Paso 2010, no pet.) (legal sufficiency standard used); Barker v. State, 84 S.W.3d
409, 411-12 (Tex. App.—Fort Worth 2002, no pet.) (factual sufficiency standard used).
Regardless, the petitioner still carries the burden of proof and is entitled to expunction
only after all statutory conditions have been met and proved. See Tex. Dep't of Pub. Safety
v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
R.L.S. brought his petition for expunction under article 55.01(a)(2) of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 55.01 (amended 2011).
He asserts on appeal that Chapter 55, the chapter in the Texas Code of Criminal Procedure
regarding expunctions, and specifically article 55.01, is an arrest based statute; meaning,
an arrest is the unit of expunction, and the chapter provides relief relating to arrests rather
than charges. See S.J. v. State, 438 S.W.3d 838, 843 (Tex. App.—Fort Worth 2014, no pet.).
The State agrees.3 Regardless of whether it is or is not an arrest based statute, as written,
the statute does not address or make allowances for the expunction of individual offenses
stemming from an arrest. Ex parte K.R.K., 446 S.W.3d 540, 544 (Tex. App.—San Antonio
2014, no pet.). Further, it does not permit expunction if there was court-ordered
community supervision for the offense for which the person was arrested. See TEX. CODE
CRIM. PROC. ANN. art. 55.01(a)(2) (amended 2011). Thus, to establish his entitlement to
3 Whether the statute is arrest-based or offense-based has been recently argued before the Texas Supreme Court. See State v. T.S.N., 523 S.W.3d 171, (Tex. App.—Dallas 2017, pet. granted) (Texas Supreme Court No. 17-0323).
Ex parte R.L.S. Page 6 expunction based on dismissal under subsection (a)(2), R.L.S. was required to first prove
that (1) he had been released; (2) the charge, if any, had not resulted in a final conviction;
(3) the charge, if any, is no longer pending; and (4) there was no court-ordered
community supervision for the offense. See id. art. 55.01(a)(2); Tex. Dep't of Pub. Safety v.
G.B.E., 459 S.W.3d 622, 626 (Tex. App.—Austin 2014, pet. denied). It is the fourth prong
that R.L.S. cannot, and thus did not, prove.
It was undisputed that one of the offenses for which R.L.S. was arrested resulted
in court-ordered community supervision. R.L.S. was arrested in Robertson County for
burglary of a habitation. He was later arrested for that same offense in Limestone County.
Three days after the Limestone County arrest, he was placed on court-ordered
community supervision in Robertson County for the same burglary of a habitation
offense for which he was arrested in Limestone County. R.L.S. argues that because the
second arrest for the same offense did not directly result in another court-ordered
community supervision, he was entitled to an expunction. We disagree with R.L.S.
The statute says that a person is entitled to expunction if ”there was no court-
ordered community supervision…for the offense….” See TEX. CODE CRIM. PROC. ANN.
art. 55.01(a)(2) (amended 2011). “The offense” was burglary of a habitation occurring in
Robertson County. R.L.S. received court-ordered community supervision in Robertson
County for that offense. Consequently, R.L.S. is not entitled to an expunction.4
4 Although R.L.S. may present an equitable case for expunction, courts have no authority to grant expunctions on equitable grounds. See Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 811 (Tex. App.— Houston [14th Dist.] 2008, no pet.); Harris Cty. DA v. Lacafta, 965 S.W.2d 568, 570 (Tex. App.—Houston [14th Dist.] 1997, no pet.).
Ex parte R.L.S. Page 7 R.L.S.’s first and third issues are overruled.
CONCLUSION
Having overruled each of R.L.S.’s issues on appeal, we affirm the trial court’s
judgment.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed April 4, 2018 [CV06]
Ex parte R.L.S. Page 8