Plea-bargain that required seventeen year old (minor) to voluntarily waive
any right to an expunction in order to enroll in a pre-trial diversion program
is binding on the minor. [In the Matter of the Expunction of D.R.R.](10-4-1)
On August 11, 2010, the El Paso Court of Appeals held that minors have the
capacity to enter into contracts for pre-trial diversion programs, and as a
result are bound by their conditions.
10-4-1. In the Matter of the Expunction of D.R.R., No.
08-08-00064-CV, --- S.W.3d ----, 2010 WL 3169352 (Tex.App.-El Paso, 8/11/10).
Facts: This appeal centers on the filing of a petition to expunge the
records of Appellee's arrest on November 29, 2002, for possession of marijuana.
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 an agreement whereby Appellee would enroll
in a 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. There, he signed a document agreeing to participate in the pre-trial
diversion program and to abide by certain conditions. The document also
contained a provision indicating that if he successfully completed the pre-trial
diversion program, he voluntarily waived any right to an expunction. Appellee
signed his name, voluntarily agreeing to waive his right to expunction, beneath
the provision. The last line of the document also recited that Appellee read and
understood the document fully, and Appellee, indicating his understanding of the
document, signed below that provision, as well.
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 at the expunction hearing that he was
unfamiliar with the word expunction when he signed the forms, and the rights
that he waived were not explained to him. He stated that the purpose in seeking
the expunction was to enlist in the United States Navy.
Noting that Appellee was only seventeen years old at the time he waived his
right to expunction, the court believed that he did not have the capacity to
contract for himself regarding that right. Thus, the court granted the petition
for expunction.
Held: Reversed and expunction denied
Opinion: 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.).
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. Section 8.07(b) of the Penal Code provides in relevant part:
Pre-trial diversion agreements, in our view, are akin to negotiated plea
agreements, which have been equated to a contract. See Ex parte Williams, 637
S.W.2d 943, 948 (Tex.Crim.App.1982). Whereas 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, see id.
at 947, pre-trial diversion agreements generally consists of the prosecutor's
agreement to drop the charges in exchange for the defendant's agreement to
fulfill certain conditions within a specific period of time. Fisher v. State,
832 S.W.2d 641, 643 (Tex.App.- Corpus Christi 1992, no pet.). Under either
action, each party simply agrees to give up some consequence in exchange for a
benefit. See, e.g., Bordenkircher v. Hayes, 434 U.S. 357, 363, 98 S.Ct. 663,
668, 54 L.Ed.2d 604(1978) (explaining plea bargains flow [ ] from 'the
mutuality of advantage' to defendants and prosecutors, each with his own reasons
for wanting to avoid trial). Here, as part of this contract, Appellee agreed to
waive his right to expunge his misdemeanor conviction in exchange for the
prosecutor's dismissal of the case upon successful completion of the program.
Thus, we believe that when a prosecutor and defendant enter into such
agreements, they become parties to a contract that are operative. If either
party fails to keep their side of the agreement, the proper relief is either
specific enforcement or withdrawal of the agreement. See, e.g., Williams, 637
S.W.2d at 947.
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 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 than the proposition that a minor may plead guilty to an
offense. Id. Logically, if Appellee can disallow one portion of the contractual
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 bargain-for pre-trial
diversion agreement, that is, a 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. See Rhodes v. State, 240 S.W.3d 882, 891
(Tex.Crim.App.2007) (discussing such principle in a plea-bargain agreement). As
is true with most contracts, it is typical that both parties to an agreement
will benefit from the result. A defendant cannot enter an agreement, benefit
therefrom, and then attack the agreement later when it is suddenly in his
interests to do so. Issue One is sustained.
Conclusion: We reverse and render judgment denying Appellee's petition
for expunction.