NO. 12-17-00309-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

                                                  §       APPEAL FROM THE 7TH
EX PARTE:
                                                  §       JUDICIAL DISTRICT COURT
CALEB DALEY
                                                  §       SMITH 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 contends the trial court erred
by granting the expunction. We affirm.


                                           BACKGROUND
       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 that 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.
                                           EXPUNCTION
       In its only issue, the State 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 expunction 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 any 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
misinterprets 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 by the 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, but 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 the 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 records 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 Article 42.12 for the offense, unless the offense is a Class C misdemeanor.
See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (West 2018). “The traditional and primary
purpose of the expunction statute is to remove records of wrongful arrests.” S.J. v. State, 438
S.W.3d 838, 841 (Tex. App.—Fort Worth 2014, no pet.). Thus, the expunction statute is “arrest-
based” and expunction is not available for less than all offenses arising from one arrest. Id. at



                                                 2
844; but see State v. T.S.N., No. 17-0323, 2018 WL 2169785, at *6 (Tex. March 1, 2018)
(holding that Article 55.01 is not entirely arrest-based but declining to address the specifics of
55.01(a)(2)); see also BLACK’S LAW DICTIONARY 116, 248, 1110 (8th ed. 2004) (defining an
“arrest,” in pertinent part, as a “taking 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
expunged under Article 55.01(a)(2) when a charge is dismissed, but that dismissal results in a
final conviction of any charge 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.) (reversing 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 petitioner 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 final conviction; (3) the charge, if any, is no longer pending; and (4) there was
no court-ordered community supervision for the offense. See TEX. CODE CRIM. PROC. ANN. 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 deferred



                                                 3
adjudication, T.C. received “court ordered community supervision” under Article 42.12 for
purposes of expunction statute, and was ineligible for expunction of her theft arrest records); see
also Nail, 305 S.W.3d at 679–85 (defendant who successfully completed deferred adjudication
not entitled to expunction).
         However, in the trial court, Daley argued that he is entitled to an expunction because his
case was vacated after the Texas Court of Criminal Appeals held a portion of the online
solicitation statute unconstitutional. As a result of the Texas Court of Criminal Appeals’s
decision in Ex parte Lo, Daley filed a motion to set aside 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 which 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, BLACK’S LAW DICTIONARY (10th ed. 2014) (“to nullify or cancel; make void;
invalidate); Martinez v. State, 194 S.W.3d 699, 701 (Tex. App.—Houston [14th] 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, appellee 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 sole issue.


                                                  DISPOSITION
         Having overruled the State’s single issue, we affirm the trial court’s judgment granting
expunction of Daley’s October 28, 2010 arrest.
                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered June 20, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                                   (PUBLISH)



                                                          4
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 20, 2018


                                         NO. 12-17-00309-CV


                                    EX PARTE: CALEB DALEY


                                  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.