SHERRY RADACK, Chief Justice.
This in an appeal from an order denying appellant Angela Michelle Harris's petition for nondisclosure of her prior conviction for possession of cocaine. We reverse and the remand to the trial court for further proceedings.
Pursuant to a plea agreement related to a cocaine possession charge, on July 18, 2001, Harris was placed on deferred adjudication community supervision for three years. She fulfilled the conditions of her probation, and her community supervision was terminated and she was discharged on July 21, 2003.
On June 17, 2010, Harris was placed on a one-year deferred-adjudication probation for evading arrest. After fulfilling the terms, she was discharged from that probation on June 17, 2011.
On September 28, 2011, Harris filed a petition for a nondisclosure order related to her 2001 cocaine case under TEXAS GOVERNMENT CODE § 411.081(d). The trial
As a threshold matter, the State argues that this Court lacks jurisdiction over this appeal. It notes that section 411.081 of the Texas Government Code does not expressly provide for an appeal of an order denying a nondisclosure order and that, absent a specific statutory grant of jurisdiction, the legislature has limited the jurisdiction of appellate courts to cases in which the amount in controversy or the judgment exceeds $250. See TEX. GOV'T CODE ANN. § 22.220(a) (Vernon Supp.2011). Because, it asserts, "there is no basis on which to assign a value to the nondisclosure order" that Harris seeks, she cannot satisfy the amount-in-controversy jurisdictional requirement.
In response, Harris argues that "Texas Code of Criminal Procedure Article 44.02 affords Appellant a right to appeal in that this is a criminal case since Appellant was charged with an offense and this proceeding is an effort to limit the release of the criminal records." Alternatively, if this is instead a civil matter, Harris contends that the trial court's finding that she has "lost several thousand dollars in potential employment wages" sufficiently establishes a value of the privilege she seeks to vest this court with jurisdiction over her appeal.
The Texas Constitution confers the courts of appeals with jurisdiction over "all cases of which the District Courts or County Courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law." TEX. CONST. art. V, § 6(a). The courts of appeals are also constitutionally vested with "such other jurisdiction, original and appellate, as may be prescribed by law." Id. Thus, our jurisdiction over an appeal must be based on either (1) the general constitutional grant, subject to any restrictions and regulations imposed by the legislature; or (2) a specific statutory grant of jurisdiction. See Tex. Dep't of Pub. Safety v. Barlow, 48 S.W.3d 174, 175-76 (Tex. 2001); Tune v. Tex. Dep't of Pub. Safety, 23 S.W.3d 358, 361 (Tex.2000); Huth v. State, 241 S.W.3d 206, 207 (Tex.App.-Amarillo 2007, pet. denied) (op. on reh'g).
Section 411.081 matters are civil, not criminal, so Texas Code of Criminal Procedure Article 44.02's provision providing that a "defendant in any criminal action has the right of appeal" does not confer jurisdiction on this Court over the denial of a petition for a nondisclosure order.
Absent a specific statutory grant of jurisdiction, we must look to the general constitutional grant. Here, the legislature has limited the jurisdiction of our courts of appeals to cases in which the amount in controversy or the judgment exceeds $250, exclusive of interest and costs. See TEX. GOV'T CODE ANN. § 22.220(a) (Vernon 2011).
For this purpose, the "amount in controversy" means the sum of money or the value of the thing for which the suit was brought. Tune, 23 S.W.3d at 361. The subjective value of a privilege, if asserted in good faith, establishes jurisdiction if it meets the required amount in controversy. Id. at 362. By statute, the amount in controversy cannot include the costs associated with bringing suit. See TEX. GOV'T CODE ANN. § 22.220(a) (Vernon 2011); TEX. CIV. PRAC. & REM.CODE ANN. § 51.012 (Vernon 2011).
Whether the courts of appeals have jurisdiction over nondisclosure orders presents an issue of first impression for this Court. Three courts of appeals have exercised jurisdiction over appeals from the denial of nondisclosure orders without addressing jurisdiction in their opinions. Ramsey v. State, 249 S.W.3d 568, 574-75 (Tex.App.-Waco 2008, no pet.) (affirming denial of petition for bill of review challenging denial of nondisclosure order); Fulgham v. State, 170 S.W.3d 836, 836-37 (Tex.App.-Corpus Christi 2005, no pet.) (reversing trial court's denial of nondisclosure order and remanding for hearing on whether such order was in the best interest of justice); Carter v. State, No. 04-07-00854-CV, 2008 WL 4172877, at *1 (Tex. App.-San Antonio Sept. 10, 2008, no pet.) (reversing trial court's denial of nondisclosure order and remanding for hearing because the "trial court erred by not conducting a hearing on the issue of whether nondisclosure served the interest of justice").
The courts of appeals that have addressed the issue of jurisdiction have uniformly held they lack jurisdiction over orders denying petitions for nondisclosure because there is so express statutory authority for such an appeal, and because the records in those cases did not reflect an adequate amount in controversy. E.g., Huth, 241 S.W.3d at 208 ("Because section 411.081 does not expressly create a right of appeal and because nothing in the record shows an amount in controversy in the case exceeding [the jurisdictional threshold], exclusive of interests and costs, we are without jurisdiction."); Guinn v. State, No. 05-09-01295-CV, 2010 WL 22817, at *1 (Tex.App.-Dallas Jan. 6. 2010, no pet.) ("Section 411.081 of the government code does not specifically provide this Court with jurisdiction over an order denying a petition for non-disclosure ... [and] nothing in the record reflects any amount in controversy that would provide the Court with general appellate jurisdiction").
Harris contends that her case is distinguishable, however, because the trial court's finding that she "has been denied employment opportunities and has lost several thousand dollars in potential employment wages as a result of the July 18, 2001 deferred adjudication appearing on her record" provides the requisite amount in controversy. The State disagrees, arguing
Because no court has analyzed what type of pleadings or evidence would establish the amount in controversy in an appeal from a nondisclosure order, we look to the interpretation that Texas courts have given this jurisdictional requirement in other contexts. The seminal case is Tune v. Texas Department of Public Safety, a case in which the Texas Supreme Court held that the court of appeals had properly exercised jurisdiction over an appeal related to the issuance of a concealed handgun license. 23 S.W.3d at 362. Because there was no statutory grant of appellate authority over decisions related to these licenses, see generally TEX. GOV'T CODE ANN. § 411.180(e), the supreme court considered whether the minimum threshold amount in controversy ($100 under the applicable law at the time) could be established despite the lack of a claim for damages. 23 S.W.3d at 361. In doing so, it looked to the four-year license fee as a minimum measure of the subjective value of the license (even though the appellant had actually paid only $70 for a two-year license), explaining:
23 S.W.3d at 361-62 (citations omitted).
A year after it decided Tune, the supreme court utilized a similar analysis in deciding that the court of appeals had jurisdiction over a dispute involving a drivers license suspension, reasoning that the $24 initial fee for a driver's license and the $100 fee for reinstatement following suspension "indicate a minimum value that a driver such as [respondent] is willing to pay for the privilege of driving":
Barlow, 48 S.W.3d at 176. Because the court was relying upon the license fee as a minimum value, the court further held that the party seeking relief need "not plead or prove a specific amount in controversy." Id. Instead, the court explained, "by seeking to retain his driver's license, [the respondent] put the value of his driving privileges at issue." See id. Thus "neither party needed to introduce evidence about what [respondent] subjectively thinks his driving privileges are worth because the Transportation Code itself establishes an objective minimum value." See id.; see also Deleon v. State, 284 S.W.3d 894, 896 (Tex.App.-Dallas 2009, no pet.) (fee charged for occupational license following drivers license suspension satisfies jurisdictional amount in controversy requirement).
Although neither party cites it, we find the Beaumont Court of Appeal's application of Tune's jurisdictional principles in In re Richards persuasive and on point here. 202 S.W.3d 779, 789-90 (Tex.App.-Beaumont 2006, pet. denied). In Richards, the court confronted the issue of whether it had jurisdiction in an appeal from the denial of a civil petition for habeas relief complaining of certain restrictions, including a restriction prohibiting the petitioner from returning to work upon being released from jail. Id. The court reasoned that lost income for at least two months clearly met the jurisdictional requirement, without the amount of lost work and wages being specifically quantified:
Id.
We similarly conclude here that the trial court's finding that Harris has been denied employment and lost thousands of dollars in wages as a result of the 2001 deferred adjudication appearing on her record demonstrates that the subjective value of the nondisclosure order she seeks exceeds the jurisdictional threshold of $250. We thus conclude that we have jurisdiction over Harris's appeal of the trial court's denial of her petition for nondisclosure of the 2001 deferred adjudication.
Harris argues that the trial court erred by concluding that her 2010 deferred adjudication
The relevant portions of section 411.081 provide:
TEX. GOV'T CODE § 411.081(d),(e).
Harris and the State advance two different interpretations of the interplay between subsections (d) and (e) of section 411.081. As the trial court recognized, this issue has not been addressed by the appellate courts.
According to Harris, so long as five years passed between the discharge of her first probation and the start of her second probation, she qualifies for a nondisclosure order on the earlier deferred adjudication. The State insists instead that the relevant time periods "are defined and measured by when the defendant makes the $28 payment," and that "since appellant obtained her second deferred-adjudication probation during the period preceding her payment of $28, she was not eligible for a nondisclosure order."
In relevant part, Subsection (e) provides that "a person is entitled to petition the court under Subsection (d) only if during the period of the deferred adjudication community supervision for which the order of nondisclosure is requested and during the applicable period described by Subsection (d)(1), (2), or (3), as appropriate, the person is not convicted of or placed on deferred adjudication community supervision..." Id. at § 411.081(e). Subsection (d)(1), (2) and (3) state:
The parties here agree that subsection (d)(3) is the provision relevant to Harris.
Read together, subsections (d), (d)(3), and (e) provide that Harris may only petition for a nondisclosure order on her 2001 deferred adjudication if:
Here, at least five years passed after the conclusion of the probationary period on Harris's 2001 deferred adjudication before she petitioned for an order of nondisclosure, and her second deferred adjudication was on June 17, 2010, which is
The State disagrees because, it asserts:
This argument, however, is simply not supported by the text of the statute. Subsection (e) provides that a defendant cannot be convicted or placed on deferred adjudication "during the applicable time period described by Subsection (d)[](3)." TEX. GOV'T CODE § 411.081(e). Subsection (d)(3) states a "payment may be made only on or after ... the fifth anniversary of the discharge and dismissal." Id. § 411.081(d)(3). Contrary to the State's argument, nothing in either section requires the fee for a nondisclosure order to be paid before the defendant is placed on a second deferred adjudication probation.
We sustain Harris's sole issue.
Section 411.081(d) contemplates "a hearing on whether the person is entitled to file the petition and issuance of the order is in the best interest of justice." The trial court's findings of fact and conclusions of law in this case state that "[b]ecause the subsequent deferred adjudication precludes an order of nondisclosure for the July 18, 2001 deferred adjudication, the Court did not reach or decide whether an order of nondisclosure would be in the best interests of justice." The State nonetheless requests that we affirm the denial of Harris's petition for nondisclosure because "[c]onsidering that appellant committed a subsequent crime, thereby demonstrating a lack of rehabilitation, justice would not be served by allowing appellant to prevent the disclosure of her criminal record." The State acknowledges that the trial court expressly declined to reach this issue, but argues that "the judge's ruling may be upheld under the `best interest of justice' theory despite the judge basing his ruling on another reason" because a trial court's ruling should be upheld if it is correct under any theory of the law applicable to the case. State v. Vasquez, 230 S.W.3d 744, 747 (Tex.App.-Houston [14th Dist.] 2007, no pet.).
We decline to address a ground for upholding the trial court's order that the trial court expressly declined to reach. Instead, we remand to the trial court to consider that issue in the first instance.
We reverse and remand.
