Texas Department of Public Safety v. Kenneth Frederick Cryan, Jr.

CourtCourt of Appeals of Texas
DecidedAugust 11, 2005
Docket14-04-00507-CV
StatusPublished

This text of Texas Department of Public Safety v. Kenneth Frederick Cryan, Jr. (Texas Department of Public Safety v. Kenneth Frederick Cryan, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Texas Department of Public Safety v. Kenneth Frederick Cryan, Jr., (Tex. Ct. App. 2005).

Opinion

Affirmed in part, Reversed and Rendered in part, and Memorandum Opinion filed August 11, 2005

Affirmed in part, Reversed and Rendered in part, and Memorandum Opinion filed August 11, 2005.

In The

Fourteenth Court of Appeals

________________________

NO. 14-04-00507-CV

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

V.

KENNETH FREDERICK CRYAN, JR., Appellee

__________________________________________________________________

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2003V‑0114

__________________________________________________________________

M E M O R A N D U M   O P I N I O N

The Texas Department of Public Safety appeals the trial court=s order granting Kenneth Frederick Cryan=s petition for expunction of criminal records related to three separate arrests.  We affirm in part, and reverse and render in part.


I.  Background

In 1997, Cryan was arrested three separate times.  Cryan was first arrested for misdemeanor assault.  No information or indictment was presented against him for the misdemeanor assault offense, and the statute of limitations for prosecution of this offense later expired.

Cryan was later arrested for criminal mischief.  He was charged by information for the offense, but the charge was dismissed, and the statute of limitations for prosecution of this offense later expired.

Subsequently, Cryan was arrested for the felony offenses of theft and arson.  He was charged by indictment with both offenses, but the State elected to pursue only the theft charge.  Cryan was placed on deferred adjudication probation for the theft offense and satisfactorily completed probation.

In 2003, Cryan filed a petition pursuant to Article 55.01 of the Texas Code of Criminal Procedure to expunge criminal records related to all three arrests, and all the appropriate agencies were notified.  The Texas Department of Public Safety (ADPS@) filed an answer, but did not appear at the hearing.  The only party to appear at the hearing to contest expunction was the Austin County District Attorney.  Upon completion of the hearing, the trial court ordered that all records related to the arrests be expunged, and DPS filed this appeal from the trial court=s order.

II.  Standard of Review


Article 55.01 of the Texas Code of Criminal Procedure provides for the expunction of records and files related to an arrest.  Tex. Code Crim. Proc. Ann. art. 55.01 (Vernon Supp. 2004B05).  The right to expunction of arrest records is a statutory privilege limited by the legislature.  Harris County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.CHouston [14th Dist.] 1997, no pet.).  Although Article 55.01 is found in the Texas Code of Criminal Procedure, an expunction proceeding is civil rather than criminal in nature; therefore the petitioner bears the burden of proving compliance with the statute.  Id.  All provisions of the statute are mandatory, and the court has no equitable power to extend the clear meaning of the statute.  Id.

Article 55.01 provides 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 records and files relating to the arrest expunged if certain conditions are met.  One such condition is that the person has not been convicted of a felony in the five years preceding the date of the arrest.  Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C).

In its first issue, DPS contends the trial court erred by ordering expunction of records related to all three of Cryan=s arrests because the evidence was legally insufficient to prove he had not been convicted of a felony in the five years preceding the arrests. 

In a trial to the court where no findings of fact or conclusions of law are requested or filed, the trial court=s judgment implies all findings of fact necessary to support it.  Pharo v. Chambers County, Tex., 922 S.W.2d 945, 948 (Tex. 1996).  When the party without the burden of proof challenges the legal sufficiency of evidence to support an unfavorable implied finding of fact, we apply a Ano evidence@ standard of review.  State v. Herron, 53 S.W.3d 843, 845 (Tex. App.CFort Worth 2001, no pet.).  In determining whether there is Ano evidence@ to support a factual finding, we consider only the evidence and inferences that, when viewed in their most favorable light, tend to support the trial courts findings, and we disregard all evidence and inferences to the contrary. Cont=l Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450 (Tex.

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Texas Department of Public Safety v. Kenneth Frederick Cryan, Jr., Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-department-of-public-safety-v-kenneth-freder-texapp-2005.