Opinion
No. 08-08-00064-CV
February 10, 2010.
Appealed from the 346th District Court of El Paso County, Texas, (TC#2007-4431).
Before CHEW, C.J., RIVERA, J., and GARCIA, Judge.
GARCIA, Judge, sitting by assignment, Chew, C.J., dissenting.
OPINION
Appellant County of El Paso, Texas (County), appeals an order of expunction relating to an arrest for possession of marijuana under two ounces. For the reasons that follow, we reverse and render.
BACKGROUND
This appeal centers upon the filing by Appellee of a petition to expunge the records of his arrest on November 29, 2002 for possession of marijuana under two ounces. On November 28, 2007, a hearing was held regarding the expungement petition. The evidence adduced at the hearing revealed that Appellee, represented by counsel, and the State of Texas entered into a plea bargain agreement whereby Appellee would enroll in the Pre-Trial Diversion Program, and upon completion of that program, the charge for possession of marijuana under two ounces would be dismissed. Appellant was seventeen years old at the time, and he was charged as an adult.
In order to enroll in the program, Appellee went to the offices of the Adult Probation Department to sign the requisite forms. He was not accompanied by counsel. Appellee stated there was a provision in the document indicating he was waiving his right to an expunction. That waiver language indicated that Appellee was voluntarily waiving his right to an expunction. The last line of the document indicated that he read and understood the document fully. Appellee signed both the waiver portion and the last part of the document indicating he fully understood the document.
This document is not before us on appeal.
Upon his successful completion of his participation in the Pre-Trial Diversion Program, the charge of possession of marijuana under two ounces was dismissed by the court. Appellee testified that the purpose of seeking the expunction was to enlist in the United States Navy. He stated that he was unfamiliar with the word "expunction" when he signed the forms, and the rights that he waived were not explained to him.
The court granted the petition for expunction. The court stated that as Appellee was seventeen years old at the time he waived his right to expunction, he did not have the capacity to contract for himself regarding that right.
DISCUSSION
In its sole issue on appeal, the County asserts the court abused its discretion in granting Appellee's petition for expunction by ruling that Appellee lacked the capacity to contract; thereby invalidating his waiver of his right to expunge his criminal records. We review a trial court's ruling on a petition for expunction under an abuse of discretion standard. Ex parte Jackson, 132 S.W.3d 713, 715 (Tex. App.-Dallas 2004, no pet.); see also Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.-Houston [14th Dist.] 2008, no pet.). A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules or principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); Bowie Memorial Hospital v. Wright, 79 S.W.3d 48, 52 (Tex. 2002).
Appellee was charged as an adult for committing the offense of possession of marijuana under two ounces. He was seventeen years old at the time of the offense. Tex. Penal Code Ann. § 8.07(b) (Vernon Supp. 2009) provides in relevant part:
Unless the juvenile court waives jurisdiction under Section 54.02, Family Code, and certifies the individual for criminal prosecution or the juvenile court has previously waived jurisdiction under that section and certified the individual for criminal prosecution, a person may not be prosecuted for or convicted of any offense committed before reaching 17 years of age. . . .
A negotiated plea agreement has been equated to a contract. Ex parte Williams, 637 S.W.2d 943, 948 (Tex. Crim. App. 1982). As part of this contract, Appellee agreed to waive his right to expunge his misdemeanor conviction. Plea bargaining consists of the prosecutor's concessions regarding punishment, lesser charges or reduction in counts in exchange for a defendant's plea of guilty or nolo contendere. Id. at 947. When a defendant agrees to a plea bargain agreement, he becomes a party to a contract that becomes operative when the court announces it will be bound by the plea agreement. Id. Once the court makes this announcement, the State becomes bound by its side of the bargain. Id. When a plea bargain is not kept, the proper relief is either specific enforcement of the plea agreement or withdrawal of the plea. Id.
Appellee contends that as a minor, one younger than eighteen, he could not make a contract or waive a legal right; accordingly, as his minority disability has not been removed, the waiver is voidable, and he has the option to disallow it. Appellee maintains that in invoking his right to set aside the contract, he has not cancelled out the entire plea agreement. He cites Ex parte White, 50 Tex. Crim. 473, 474, 98 S.W. 850, 851 (1906) for the proposition that his minority status allows him to plead guilty, but that same disability prevents him from entering into a contract, waiving his rights or forming a contract that may be in contravention of the law or public policy. However, the cited case stands for no more that the proposition that a minor may plead guilty to an offense. Id. Logically, if Appellee can disallow one portion of the contractual plea agreement, he can disavow any portion of the agreement. This cannot be the intent of the legislature in providing that one has adult status with regard to criminal liability at the age of seventeen. When one who becomes involved with the criminal justice system is considered in his or her majority at age seventeen, that majority status carries over into the attendant contractual agreements. We find that when Appellee entered into a plea bargain contract legally at the age of seventeen, he was bound by that contract and its attendant provisions. He cannot absolve himself from those portions of the contract that he, at some later time, finds unsuitable. We predicate this finding on the concept of estoppel by contract. A party who accepts benefits under a contract is estopped from questioning the contract's existence, validity, or effect. Rhodes v. State, 240 S.W.3d 882, 891 (Tex. Crim. App. 2007). As is true with most contracts, it is typical that both parties to a plea bargain will benefit from the judgment. Id. A defendant cannot enter a plea agreement that imposes an allegedly illegal sentence, or in this case, waiver, benefit from that sentence, and then attack the judgment later when it is suddenly in his interests to do so. Id. Issue One is sustained.
The dissent suggests that civil law should apply to allow a minor, being disabled by virtue of his age, to void a portion of his plea agreement, i.e., the waiver of his right to an expunction, at his option. However, the dissent's argument fails for those reasons discussed above. Moreover, we note that in the criminal context, the legislature has specifically provided that a juvenile has the ability to waive rights secured to him by statutes or the constitutions. See Tex. Fam. Code Ann. § 51.09 (Vernon 2008) ("[u]nless a contrary intent clearly appears elsewhere in this title, any right granted to a child by this title or by the constitution or laws of this state or the United States may be waived in proceedings under this title if: (1) the waiver is made by the child and the attorney for the child; (2) the child and the attorney waiving the right are informed of and understand the right and the possible consequences of waiving it; (3) the waiver is voluntary; and (4) the waiver is made in writing or in court proceedings that are recorded"). And the right to an expunction is a statutory right that may be waived. See In re Expunction of Jones, No. 08-08-00065-CV, ___ S.W.3d ___, 2009 WL 3152164, at*2 (Tex. App.-El Paso Sept. 30, 2009, no pet.) (not yet reported).
CONCLUSION
We reverse and render judgment denying Appellee's petition for expunction.
DISSENTING OPINION
I respectfully disagree with the majority's holding.
An individual arrested for either a felony or misdemeanor is entitled to have all records expunged if he (1) has been released, (2) the charge did not result in a final conviction, (3) there was no court-ordered community supervision for any offense other than a Class C misdemeanor, (4) the person has not been convicted of a felony in the five years preceding the date of arrest, and (5) the limitations period has expired. TEX. CODE CRIM. PROC. ANN. art. 55.01(a) (Vernon 2006); In re J.H., 224 S.W.3d 260, 262 (Tex.App.-El Paso 2005, no pet.). Once an applicant who has been acquitted of criminal charges shows that he is eligible under the expunction statute, the trial court has no discretion to refuse the expunction. TEX. CODE CRIM. PROC. ANN. art. 55.01(a); Matter of Wilson, 932 S.W.2d 263, 266 (Tex.App.-El Paso 1996, no writ); Bargas v. State, 164 S.W.3d 763, 770 (Tex.App.-Corpus Christi 2005, no pet.).
Texas law has long established that even though a defendant is a minor, he may still legally enter a plea of guilty to a criminal charge. Ex parte White, 50 Tex. Crim. 473, 474, 98 S.W. 850, 851 (1906). However, a contract made in violation of a statute is illegal. City of Denton v. Municipal Administrative Services, Inc., 59 S.W.3d 764, 769 (Tex.App.-Fort Worth 2001, no pet.). Further, a court can refuse to enforce a contract or a contractual provision if it is against public policy and unconscionable. Hoover Slovacek, LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006). A contractual provision goes against public policy if it is illegal or inconsistent with the public's best interest. Montgomery v. Browder, 930 S.W.2d 772, 778 (Tex.App.-Amarillo 1996, writ denied).
Here, Appellee has satisfied all the requirements in his petition for and to receive an expunction of his arrest. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a); In re J.H., 224 S.W.3d at 262. However, the District Attorney for the 34th Judicial District has a policy requiring defendants, including Appellee, to waive their right to an expunction if they want to enroll in the Pre-Trial Diversion Program as part of a plea bargain agreement. I believe such a policy is inconsistent with the public's best interest because it affects the statutory right to an expunction of not only adults, but also minors. See Montgomery, 930 S.W.2d at 778. As such, the trial court correctly refused to enforce the waiver of Appellee's expunction right that constituted part of his plea bargain agreement. See Walton, 206 S.W.3d at 562. This does not render Appellee's entire plea agreement void, however, because a minor may properly enter a guilty plea. See Ex parte White, 50 Tex. Crim. at 474, 98 S.W. at 851.
Texas courts have held that contracts entered into by a minor who has not been emancipated are not binding on the minor if he chooses to disallow those contracts. See Swain v. Wiley College, 74 S.W.3d 143, 146-47 (Tex.App.-Texarkana 2002, no pet.). The contract of a minor whose disability has not been judicially removed is not void but only voidable at the minor's choice. Pioneer Casualty Company v. Bush, 457 S.W.2d 165, 168 (Tex.Civ.App.-Tyler 1970, writ ref'd n.r.e.).
In the instant case, Appellee entered into the plea bargain agreement with the State when he was seventeen years old, and so his minority disability was still intact at that time. As such, the waiver of his statutory right to an expunction is voidable, and he has the option to disallow it. See Swain, 74 S.W.3d at 146-47; Bush, 457 S.W.2d at 168. By filing his Original Petition for Expunction, Appellee has exercised his option to disallow the waiver and rightfully seek his right to an expunction.
Finally, the local District Attorney policy requirement that a minor defendant waive his right to an expunction in order to enroll in the Pre-Trial Diversion program seems to contradict the legislative intent behind the expunction statutes. The right to an expunction is statutory in nature, and the legislature could not have intended for an individual to give up such a right by agreeing to enter into a deferred adjudication program when the individual is a minor. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a).
For the foregoing reasons, I respectfully dissent.