      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                      NO. 03-03-00486-CV



                        Texas Department of Public Safety, Appellant

                                                v.

                                William Robert Loeb, Appellee




            FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
           NO. 266,861, HONORABLE ORLINDA L. NARANJO, JUDGE PRESIDING



                                          OPINION


               This case of statutory construction requires us to determine whether the term

“convicted” in the Texas concealed handgun license statute, see Tex. Gov’t Code Ann. § 411.171(4)

(West Supp. 2004), encompasses a felony conviction that has been set aside under the Federal Youth

Corrections Act (“YCA”).1 The Texas Department of Public Safety contends that the trial court

erred in holding that appellee William Robert Loeb’s set-aside conviction under the YCA was an

“expungement by legislative design” and for that reason is excluded from the term “convicted” under




       1
          See Act of Sept. 30, 1950, ch. 1115, § 2, 64 Stat. 1089; amended by Act of Oct. 3, 1961,
Pub. L. 87-336, 75 Stat. 750; amended by Act of Mar. 15, 1976, Pub. L. 94-233, § 9, 90 Stat. 232
(codified as 18 U.S.C. § 5021) (repealed 1984) (allowing for the “set aside” of a conviction)
[hereinafter “18 U.S.C. § 5021”].
the concealed handgun license statute. Because we find that “convicted” as defined in the concealed

handgun license statute encompasses a set-aside conviction under the YCA, we reverse the decision

of the trial court and render judgment that Loeb is ineligible to obtain a concealed handgun license.


                     FACTUAL AND PROCEDURAL BACKGROUND

               The facts of this case are not in dispute. In 1981, Loeb, at age 19, obtained through

the mail a driver’s license with his photograph and someone else’s name. In 1983, Loeb was

indicted for and pleaded guilty to the federal felony offense of mail fraud. See 18 U.S.C.A. § 1341

(West Supp. 2003). The federal court suspended imposition of sentence and placed Loeb on two

years’ probation under the YCA, beginning in October 1983.2 The YCA was repealed in its entirety

in 1984. In June 1985, before the probationary period expired, the court, as allowed by the terms of

the YCA, discharged Loeb from probation, set aside his conviction, and issued a certificate of

vacation of conviction. See 18 U.S.C. § 5021(b) (repealed 1984). The set-aside provision stated:


       Where a youth offender has been placed on probation by the court, the court may
       thereafter, in its discretion, unconditionally discharge such youth offender from
       probation prior to the expiration of the maximum period of probation theretofore
       fixed by the court, which discharge shall automatically set aside the conviction, and
       the court shall issue to the youth offender a certificate to that effect.




       2
          See Act of Sept. 30, 1950, ch. 1115, § 2, 64 Stat. 1087, amended by Act of Mar. 15, 1976,
Pub. L. 94-233, § 9, 90 Stat. 232 (codified at 18 U.S.C. § 5010) (repealed 1984) (allowing for the
imposition of a suspended sentence). A “youth offender” under the YCA meant a person who was
under the age of twenty-two at the time of conviction. See Act of Sept. 30, 1950, ch. 1115, § 2, 64
Stat. 1086, amended by Act of May 15, 1976, Pub. L. 94-233, § 4, 90 Stat. 231 (codified at 18 U.S.C.
§ 5006(e)) (repealed 1984). The YCA ordinarily was not applied to convicted persons under the age
of eighteen, who were eligible for sentencing under the provisions of the Federal Juvenile
Delinquency Act. See 18 U.S.C.A. §§ 5031-5042 (West 2000 & Supp. 2003).

                                                 2
Id. The statute did not provide for the removal or destruction of records.

                In 2001, Loeb applied to the Department for a license to carry a concealed handgun.

As part of his application, he averred in an affidavit that he had not been convicted of a felony. The

Department denied the application on the ground that Loeb had been convicted of a felony because

his criminal history record listed the conviction for mail fraud. See Tex. Gov’t Code Ann.

§ 411.172(a)(3) (West Supp. 2004). Loeb requested an administrative hearing on the decision in a

justice court, id. § 411.180(a) (West Supp. 2004), which found that the Department’s denial was not

supported by a preponderance of the evidence. The Department then appealed the decision to a

county court at law. Id. § 411.180(e) (West Supp. 2004). In a trial de novo without a jury, see id.,

the court affirmed the justice court’s ruling and granted Loeb’s application for a concealed handgun

license. Pursuant to the Department’s request, the trial court also issued findings of fact and

conclusions of law.

                In one issue, the Department appeals, contending that the trial court erred in finding

that because Loeb’s set-aside conviction was an “expungement statute by legislative design,” it

cannot constitute a conviction under the concealed handgun license statute.


                                             ANALYSIS

                The Department does not challenge the trial court’s findings of fact, only its

conclusion of law that Loeb’s set-aside conviction was an expungement by legislative design. The

parties agree that the issue before us is one of statutory construction, a question of law that we review

de novo. Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). We must ascertain

and give effect to the legislature’s intent for the provisions we are construing. Tex. Gov’t Code Ann.

                                                   3
§ 312.005 (West 1998); Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002); Sorokolit

v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994); Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim.

App. 1991) (When interpreting a statute, court “focuses on the literal text of the statute in question

and attempt[s] to discern the fair, objective meaning of that text at the time of its enactment.”). The

legislature’s intent should be determined by reading the language used in the particular statute and

construing the statute in its entirety. See In re Bay Area Citizens Against Lawsuit Abuse, 982 S.W.2d

371, 380 (Tex. 1998); Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n, 616 S.W.2d 187, 190

(Tex. 1981). Further, we should read every word, phrase, and expression in a statute as if it were

deliberately chosen, and presume the words excluded from the statute are done so purposefully. See

Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex. App.—Austin

2002, pet. denied); City of Austin v. Quick, 930 S.W.2d 678, 687 (Tex. App.—Austin 1996) (citing

Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)), aff’d, 7 S.W.3d 109 (Tex.

1999). We will begin our analysis by emphasizing certain aspects of the language of the statute at

issue here.

               A person is eligible for a concealed handgun license only if the person has not been

convicted of a felony. Tex. Gov’t Code Ann. § 411.172(a)(3). Because the term “convicted” is

defined in the statute, we are bound to construe that term by its statutory definition only. Needham,

82 S.W.3d at 318. As defined in the statute,


       “Convicted” means an adjudication of guilt or an order of deferred adjudication
       entered against a person by a court of competent jurisdiction whether or not the
       imposition of the sentence is subsequently probated and the person is discharged
       from community supervision. The term does not include an adjudication of guilt or
       an order of deferred adjudication that has been subsequently:

                                                  4
       (A) expunged; or

       (B) pardoned under the authority of a state or federal official.


Tex. Gov’t Code Ann. § 411.171(4). Thus, “convicted” means any adjudication of guilt or order of

deferred adjudication whether or not imposition of sentence is probated and the person is discharged

from probation unless it is subsequently expunged or is the subject of an official pardon. The parties

agree that a federal court adjudicated Loeb guilty of the felony offense of mail fraud, suspended

imposition of sentence, placed Loeb on probation, then within its discretion set aside the judgment

of conviction before Loeb’s probationary period expired.

               Both parties also agree that Loeb’s adjudication falls within the statutory definition

of “conviction,” with the disagreement being whether the set aside is equivalent to an expungement.

Although no Texas court has addressed the effect of a set-aside felony under the YCA, the Texas

Supreme Court has held that the dismissal of proceedings after successful completion of community

supervision under Texas law pursuant to article 42.12 of the code of criminal procedure is a

conviction as defined in the concealed handgun license statute. Tune v. Texas Dep’t of Pub. Safety,

23 S.W.3d 358, 363 (Tex. 2000). In Tune, the supreme court determined that the concealed handgun

license statute on its face included such a dismissal in the definition of a conviction because

“[n]othing in the statute suggests any exception for those who successfully complete probation and

are discharged and who have the indictment dismissed.” Id.3


       3
           The supreme court has since reaffirmed this holding. Texas Dep’t of Pub. Safety v.
McLendon, 35 S.W.3d 632, 633 (Tex. 2000) (For the purposes of the concealed handgun license
statute, “an order of deferred adjudication is not voided by a subsequent dismissal of the case upon
completion of probation.”); see also Texas Dep’t of Pub. Safety v. Randle, 31 S.W.3d 786, 788 (Tex.

                                                  5
                The concealed handgun license statute was enacted in 1995,4 more than ten years after

the YCA was repealed. A statute is presumed to have been enacted by the legislature with complete

knowledge of the existing law and with reference to it. McBride v. Clayton, 166 S.W.2d 125, 128

(Tex. 1942). Without an explicit reference in the concealed handgun license statute, a felony that

had been set aside under the extinct YCA could not have been within the legislature’s contemplation

as an exclusion from the definition of “convicted.” This legislative intent is further borne out by

numerous other criteria restricting eligibility to obtain a license.5 The Tune court also considered


App.—Houston [1st Dist.] 2000, no pet.) (plain language of statute includes order of deferred
adjudication subsequently dismissed); Texas Dep’t of Pub. Safety v. Biggert, 27 S.W.3d 182, 184
(Tex. App.—Houston [1st Dist.] 2000, no pet.) (same).
       4
          Act of May 16, 1995, 74th Leg., R.S., ch. 229, 1995 Tex. Gen. Laws 1998, 1998-2015
(codified at Tex. Rev. Civ. Stat. Ann. art. 29(ee)), repealed by Act of May 8, 1997, 75th Leg., R.S.,
ch. 165, § 10.01, 1997 Tex. Gen. Laws 327, 397-411 (recodified at Tex. Gov’t Code Ann.
§§ 411.171-.208 (since amended)).
       5
           A person is not eligible for a license unless the person

            (1) is a legal resident of this state for the six-month period preceding the date
                of application under this subchapter or is otherwise eligible for a license
                under Section 411.173(a);

            (2) is at least 21 years of age;

            (3) has not been convicted of a felony;

            (4) is not charged with the commission of a Class A or Class B misdemeanor
                or an offense under Section 42.01, Penal Code, or of a felony under an
                information or indictment;

            (5) is not a fugitive from justice for a felony or a Class A or Class B
                misdemeanor;

            (6) is not a chemically dependent person;


                                                   6
the legislature’s intent in its analysis: the “Legislature may wish to keep concealed handguns out

of the hands of persons who have been convicted of a felony, even if those persons satisfactorily

complete community supervision.” Id. at 364.




          (7) is not incapable of exercising sound judgment with respect to the proper
              use and storage of a handgun;

          (8) has not, in the five years preceding the date of application, been convicted
              of a Class A or Class B misdemeanor or an offense under Section 42.01,
              Penal Code;

          (9) is fully qualified under applicable federal and state law to purchase a
              handgun;

         (10) has not been finally determined to be delinquent in making a child support
              payment administered or collected by the attorney general;

         (11) has not been finally determined to be delinquent in the payment of a tax or
              other money collected by the comptroller, the tax collector of a political
              subdivision of the state, or any agency or subdivision of the state;

         (12) has not been finally determined to be in default on a loan made under
              Chapter 57, Education Code;

         (13) is not currently restricted under a court protective order or subject to a
              restraining order affecting the spousal relationship, other than a restraining
              order solely affecting property interests;

         (14) has not, in the 10 years preceding the date of application, been adjudicated
              as having engaged in delinquent conduct violating a penal law of the grade
              of felony; and

         (15) has not made any material misrepresentation, or failed to disclose any
              material fact, in an application submitted pursuant to Section 411.174 or in
              a request for application submitted pursuant to Section 411.175.

Tex. Gov’t Code Ann. § 411.172(a) (West Supp. 2004).

                                                 7
               But an adjudication of guilt or order of deferred adjudication may be excluded from

the term “conviction” if it is subsequently “expunged; or pardoned under the authority of a state or

federal official.” Tex. Gov’t Code Ann. § 411.171(4). Because a set-aside felony still constitutes

a conviction under the concealed handgun license statute, Loeb must have had his conviction

“expunged” or must have been “pardoned” to qualify for a license. See id. (excluding only expunged

convictions and pardons from the definition of “convicted”). We proceed to inquire, then, whether

the YCA set aside is equivalent to an expungement or a pardon.

               Loeb does not argue that he has been pardoned or that the set-aside procedure is

equivalent to a pardon. Rather, he urges that his felony conviction was expunged under the YCA.

The trial court concluded that the set-aside conviction was equivalent to an expungement.

“Expunged” is not defined in the concealed handgun license statute.          When construing an

unambiguous term in a statute, we generally interpret the statute according to its plain meaning.

State ex rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002)

(citing Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999)).

Nevertheless, “[w]ords and phrases that have acquired a technical or particular meaning, whether

by legislative definition or otherwise, shall be construed accordingly.” Tex. Gov’t Code Ann.

§ 311.011(b) (West 1998); see Guthery v. Taylor, 112 S.W.3d 715, 721-22 (Tex. App.—Houston

[14th Dist.] 2003, no pet.) (“When the same or a similar term is used in the same connection in

different statutes, the term will be given the same meaning in one as in the other, unless there is

something to indicate that a different meaning was intended.”). Accordingly, we will look to the

code of criminal procedure for guidance on the definition of expungement under Texas law.



                                                 8
                Were Loeb convicted of an offense in Texas, he would have to be pardoned or

acquitted by the Court of Criminal Appeals to qualify for an expungement. See Tex. Code Crim.

Proc. Ann. art. 55.01(a), (b) (West Supp. 2004).6 Loeb would not be entitled to expungement of his

conviction under Texas law because dismissal from court-ordered community supervision for any

offense, other than a class C misdemeanor, does not entitle a petitioner to expunction of criminal




       6
           Section 55.01 provides, in pertinent part:

           Art. 55.01. Right to Expunction

           (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) of this section; or

                    (B) convicted and subsequently pardoned . . . .
                         ....

           (b) Except as provided by Subsection (c) of this section, a district court may
               expunge all records and files relating to the arrest of a person who has been
               arrested for commission of a felony or misdemeanor under the procedure
               established under Article 55.02 of this code if the person is:

               (1) tried for the offense for which the person was arrested;

               (2) convicted of the offense; and

               (3) acquitted by the court of criminal appeals.

Tex. Code Crim. Proc. Ann. art. 55.01(a), (b) (West Supp. 2004).

                                                   9
records. Id. art. 55.01(a)(2)(B); see Texas Dep’t of Pub. Safety v. Wallace, 63 S.W.3d 805, 807 (Tex.

App.—Austin 2001, no pet.).

                In addition, an order of expungement under Texas law requires that each entity named

in the order:


       (1) return all records and files that are subject to the expunction order to the court
           or, if removal is impracticable, obliterate all portions of the record or file that
           identify the person who is the subject of the order and notify the court of its
           action; and

       (2) delete from its public records all index references to the records and files that are
           subject to the expunction order.


Tex. Code Crim. Proc. Ann. art. 55.02, § 5(a) (West Supp. 2004). After entry of an expunction

order, “the release, dissemination, or use of the expunged records and files for any purpose is

prohibited,” id. art. 55.03(1) (West Supp. 2004), unless “the person who is the subject of the

expunction order is again arrested for or charged with an offense arising out of the transaction for

which the person was arrested.” Id. art. 55.02, § 4(b) (West Supp. 2004). Thus, under Texas law,

expungement means the segregation or destruction of records and deletion of the record from

criminal record indexes.

                Under the YCA, the provision allowing for the set aside of a conviction does not

expressly address expunction. See 18 U.S.C. § 5021(b) (repealed 1984). Courts have struggled to

bestow a meaning on the term “set aside,”7 which the YCA leaves undefined. Several federal circuit


       7
          See United States v. Arrington, 618 F.2d 1119, 1124 n.8 (5th Cir. 1980) (declining to
determine whether the provision serves to expunge the record and holding that “[f]or the purposes
of this appeal, defining expunction to include at least setting aside his conviction is a satisfactory

                                                  10
courts agree that the effect of a set-aside felony is to give a youthful offender a “second chance.”8

But federal circuit courts generally reject a construction of the provision as an expungement statute,

holding that a set-aside felony is not equivalent to or does not necessarily result in physical

obliteration or segregation of the record of conviction.9

                Because the YCA does not expressly address “expungement” and the concealed

handgun license statute does not allow expungement unless a defendant is acquitted or pardoned,

we cannot construe a set-aside felony as an “expungement statute by legislative design.” In light of

the broad definition of “convicted” in the statute, the declaration in Tune that “convicted” includes

any adjudication of guilt unless the conviction is subsequently expunged or is the subject of a

pardon, and the legislative intent to restrict eligibility for a concealed handgun license to statutorily

described categories, we hold that a set-aside felony conviction under the YCA is a conviction for



resolution”); United States v. Purgason, 565 F.2d 1279, 1280-81 (4th Cir. 1977) (finding the set-
aside conviction “no longer viable” but determining “it unnecessary to decide whether the statute is
one of expunction in the broad sense of that term”).
        8
          See Mines v. National Transp. Safety Bd., 862 F.2d 617, 619 (6th Cir. 1988) (“second
chance” and a “clean slate”); Arrington, 618 F.2d at 1124 (“second chance”) (citing Dorszynski v.
United States, 418 U.S. 424, 432-35 (1974)); Doe v. Webster, 606 F.2d 1226, 1234 (D.C. Cir. 1979)
(“fresh start”).
        9
          See United States v. Wacker, 72 F.3d 1453, 1479-80 (10th Cir. 1995) (holding that set-
aside convictions may be considered at sentencing for another offense); United States v. Ashburn,
20 F.3d 1336, 1342-43 (5th Cir. 1994), reinstated in relevant part by 38 F.3d 803 (5th Cir. 1994)
(en banc) (same); United States v. Gardner, 860 F.2d 1391, 1399 (7th Cir. 1988) (same); United
States v. Doe, 747 F.2d 1358, 1359 (11th Cir. 1984) (holding that YCA does not authorize
destruction or segregation of set-aside conviction records); United States v. Doe, 732 F.2d 229,
230-32 (1st Cir. 1984) (same); United States v. Doe, 556 F.2d 391, 393 (6th Cir. 1977) (same);
United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976) (same). But see United States v. Doe,
980 F.2d 876, 881-82 (3d Cir. 1992) (holding that set-aside provision authorizes expungement);
Webster, 606 F.2d at 1232-37 (same).

                                                   11
 the purposes of the concealed handgun license statute. We sustain the Department’s issue, reverse

 the trial court’s decision, and render judgment that Loeb is not eligible to obtain a concealed

 handgun license.


                                          CONCLUSION

               Because “convicted” as defined in the concealed handgun license statute encompasses

Loeb’s felony conviction that was set aside under the Federal Youth Corrections Act, we reverse the

decision of the trial court and render judgment that Loeb is ineligible to obtain a concealed handgun

license.




                                              Jan P. Patterson, Justice

Before Justices B. A. Smith, Patterson and Pemberton: Opinion by Justice Patterson;
  Dissenting Opinion by Justice B. A. Smith

Reversed and Rendered

Filed: June 10, 2004




                                                 12
