In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-13-00168-CV
________________________
EX PARTE S.D.
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2013-505,391; Honorable Brad Underwood, Presiding
January 15, 2015
OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
This appeal involves an order granting a petition for expungement and
nondisclosure filed by S.D. On December 6, 2008, S.D. was arrested and subsequently
charged by information with operating a motor vehicle in a public place while
intoxicated.1 The information was later amended to add a second count alleging that,
on the same date, he recklessly drove a vehicle in willful or wanton disregard for the
1
TEX. PENAL CODE ANN. § 49.04 (West Supp. 2014).
safety of persons or property, to-wit: by driving in an unsafe manner.2 In July 2009,
S.D. entered a plea of guilty to the reckless driving count pursuant to a plea agreement
and was placed on twelve months deferred adjudication community supervision. In July
2010, S.D. was discharged from community supervision and the information was
dismissed.
In January 2013, S.D. filed his Petition for Expungement of Criminal Records or
in the Alternative, for Nondisclosure of Criminal Records. The Petition sought (1) the
expungement of records pertaining to the DWI arrest pursuant to Chapter 55 of the
Texas Code of Criminal Procedure and (2) the nondisclosure of the public criminal
history record information for the offense of reckless driving pursuant to section
411.081(d) of the Texas Government Code. See TEX. CODE CRIM. PROC. ANN. art.
55.01-55.02 (West Supp. 2014).3 See also TEX. GOV’T CODE ANN. § 411.081(d)-(f)
(West Supp. 2014). In March 2013, a hearing was held and the trial court subsequently
issued a written order granting an expunction of the DWI arrest and ordering the
nondisclosure of the reckless driving records. This appeal by Appellant, the State,
followed.
DISCUSSION
In a single issue, the State asserts the trial court abused its discretion by granting
S.D.’s petition to expunge the DWI offense because expunction was unavailable as a
2
TEX. TRANSP. CODE ANN. § 545.401 (West 2011).
3
Throughout the remainder of this Memorandum Opinion, we will cite provisions of the Texas
Code of Criminal Procedure as “article ___.”
2
matter of law.4 The State contends the trial court misconstrued the expunction statutes
to permit an “offense-based approach” rather than an “arrest-based approach” thereby
permitting the trial court to expunge an individual charge arising from an arrest involving
multiple charges—one of which resulted in a guilty plea pursuant to a plea agreement
and court-ordered community supervision. S.D., on the other hand, asserts the trial
court correctly applied an “offense-based approach” under the expunction statutes due
to an amendment by the Legislature in 2011. We agree with the State and reverse the
trial court’s order as to that portion of the order expunging S.D.’s DWI offense and
render judgment denying S.D.’s request to expunge the records and files relating to his
arrest for that offense. The remainder of the trial court’s order pertaining to the
nondisclosure of records related to the reckless driving offense is affirmed.
STANDARD OF REVIEW
We use an abuse of discretion standard in reviewing trial court rulings on
petitions for expunction. See Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646
(Tex. App.—Austin 2002, pet. denied). To the extent a ruling on expunction turns on a
question of law, however, we review the ruling de novo because a trial court has no
discretion in determining what the law is or applying the law to the facts. Tex. Dep’t of
Pub. Safety v. Dicken, 415 S.W.3d 476, 478 (Tex. App.—San Antonio 2013, no pet.).
“A trial court abuses its discretion if it orders an expunction of records despite a
petitioner’s failure to satisfy all of the statutory requirements.” In re O.R.T., 414 S.W.3d
330, 332 (Tex. App.—El Paso 2013, no pet.). “Thus, regardless of the focus of the
4
The State does not contest any issues regarding nondisclosure of the reckless driving offense.
See TEX. GOV’T CODE ANN. § 411.081(d)-(f) (West Supp. 2014).
3
parties’ briefs, we conclude that if [the petitioner] fails to satisfy any of the requisites of
the expunction statute, [he] is not entitled to expunction as a matter of law.” Travis
Cnty. Dist. Attorney v. M.M., 354 S.W.3d 920, 927 (Tex. App.—Austin 2011, no pet.) (en
banc).
When construing statutes, we use a de novo standard of review, and our primary
objective is to ascertain and give effect to the Legislature’s intent. TEX. GOV’T CODE
ANN. § 312.005 (West 2005). See F.F.P. Operating Partners, L.P. v. Duenez, 237
S.W.3d 680, 683 (Tex. 2007). To discern that intent, we begin with the statute’s words.
TEX. GOV’T CODE ANN. § 312.002, .003 (West 2013). See State v. Shumate, 199
S.W.3d 279, 284 (Tex. 2006). If a statute is unambiguous, we adopt the interpretation
supported by its plain language unless such an interpretation would lead to absurd
results that the Legislature could not possibly have intended. Tex. Dep’t of Protective &
Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004). We also
consider statutes as a whole rather than as isolated provisions. Dep’t of Transp. v. City
of Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004).
EXPUNCTION
The remedy of expunction allows a person who has been arrested for the
commission of an offense to have the records and files relating to the arrest expunged if
he meets the statutory requirements of article 55.01. See Tex. Dep’t of Pub. Safety v.
Nail, 305 S.W.3d 673, 674 (Tex. App.—Austin 2010, no pet.) (op. on reh’g). A
petitioner’s right to expunction is neither a constitutional nor common-law right; rather, it
is a statutory privilege. Ex parte S.C., 305 S.W.3d 258, 260 (Tex. App.—Houston [14th
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Dist.] 2009, no pet.). All of the statutory provisions are mandatory and exclusive, and
the petitioner is entitled to expunction only when all statutory conditions have been met.
Tex. Dep’t of Public Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th
Dist.] 2008, no pet.). The trial court has no equitable power to permit expunction where
it is not allowed. Id. Further, although the expunction statute appears in the code of
criminal procedure, an expunction proceeding is civil in nature; Harris County Dist.
Attorney v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no
pet.), and the petitioner carries the burden of proving compliance with the statutory
requirements. Heine, 92 S.W.3d at 646.
ARTICLE 55.01
Article 55.01 was amended in 2011 and the amended article applies here. See
Art. 55.01; Act of May 27, 2011, 82nd Leg., R.S., ch. 894, § 3, 2011 Tex. Gen. Laws
Serv. 2275, 2277. In pertinent part, amended article 55.01 states as follows:
(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 an arrest expunged if:
* * *
(2) the person has been released and the charge, if any, has
not resulted in a final conviction and is no longer pending
and there was no court-ordered community supervision
under Article 42.12 for the offense, unless the Offense is a
Class C misdemeanor, provided that: . . .
Id.5
5
Although the current version of article 55.01(a) is identical to the former version, the current
version of article 55.01(a)(2) differs from the former article. See Travis County Dist. Attorney v. M.M., 354
S.W.3d 920, 923 (Tex. App.—Austin 2011, no pet.) (en banc). Prior to amendment in 2011, former article
55.01(a)(2) stated as follows:
5
The primary purpose of the expunction statute is to allow the record of a wrongful
arrest to be expunged. See Art. 55.01(a).6 “[A]llowing a person to expunge individual
charges when there is no suggestion that the arrest that resulted in charges was
wrongful would be contrary to [this] primary purpose . . . .” See M.M., 354 S.W.3d at
928. Here, S.D. admitted guilt to an offense arising out of the arrest (reckless driving)
and, as such, has conceded that the arrest was not wrongful for purposes of the
expunction statute. See Ex parte M.R.L., No. 10-11-00275-CV, 2012 Tex. App. LEXIS
1941, at *8 (Tex. App.—Waco Mar. 7, 2012, pet. denied) (mem. op.) (citing Ex parte
P.D.H., 823 S.W.2d 791, 7903 (Tex. App.—Houston [14th Dist.] 1992, no writ)).
The substitution of the word “the” for “any” in article 55.01(a)(2) does not
evidence a legislative intent to alter the expunction statute’s primary purpose. See
State v. N.R.J., No. 02-13-00082-CV, 2014 Tex. App. LEXIS 12788, at *18-19 (Tex.
App.—Fort Worth Nov. 26, 2014, no pet.) (mem. op.). Importantly, the Legislature did
not alter the statutory scope of an expunction, i.e., “all records and files relating to the
arrest.” Art. 55.01(a) (emphasis added). An arrest occurs when a person has been
actually placed under restraint or taken into custody by an officer, art. 15.22, and a
single arrest may include multiple offenses. See TEX. PENAL CODE ANN. § 3.01 (West
(2) the person has been released and the charge, if any, has not resulted in a final
conviction and is no longer pending and there was no court-ordered community
supervision under Article 42.12 for any offense, unless the Offense is a Class C
misdemeanor, provided that: . . .
(emphasis added).
6
There are also important policy considerations. The Texas Supreme Court has stated, “[t]he
public has an important interest in arrest records being kept for use in subsequent punishment
proceedings, including subsequent applications for probation. These records are valuable to document
and deter recidivism.” M.M., 354 S.W.3d at 928 n.3 (quoting Harris County Dist. Attorney’s Office v.
J.T.S., 807 S.W.2d 572, 574 (Tex. 1991)).
6
2011) (stating that a criminal episode comprises two or more offenses and may include
multiple transactions).
“[C]hapter 55, from top to bottom, appears to maintain an arrest as the unit for
expunction and provides relief relating to arrests rather than charges.” S.J. v. State,
438 S.W.3d 838, 843-44, 844 n.6 (Tex. App.—Fort Worth 2014, no pet.). The
expunction statute does not contain any language limiting an arrest to a single offense
or, in the case of an arrest involving multiple offenses, each “divisible” offense as S.D.
suggests. Thus, “for a petitioner to be entitled to expunction under article 55.01, all
charges arising from the arrest must meet that article’s requirements.” S.J., 438 S.W.3d
at 845. See N.R.J., 2014 Tex. App. LEXIS 12788, at *7 (collected cases cited therein).
Here, S.D. received community supervision as punishment for the reckless driving
offense in return for his guilty plea.
Having considered the prefatory statement in article 55.01(a) that expunctions
must apply to all records of an arrest, the remaining provisions in chapter 55 indicating
that the remedy of expunction is arrest-based and its primary purpose of permitting
expunctions of wrongful arrests, we hold that expunction is unavailable to S.D. for the
driving while intoxicated offense under article 55.01(a)(2) because he received
community supervision for the reckless driving offense. See S.J., 438 S.W. at 846. See
also N.R.J., 2014 Tex. App. LEXIS 12788, at *7; Tex. Dep’t of Pub. Safety v. Crawford,
No. 12-12-00072-CV, 2013 Tex. App. LEXIS 1940, at *3 (Tex. App.—Tyler Feb. 28,
2013, no pet.) (mem. op.) (“A person is not entitled to an expunction if she was placed
on ‘court ordered community supervision’ . . . which includes deferred adjudication
community supervision.”). The State’s single issue is sustained.
7
CONCLUSION
The trial court’s judgment is reversed as to that portion of the order expunging
S.D.’s DWI offense. Furthermore, we render judgment denying S.D.’s request to
expunge the records pertaining to his arrest for that offense, while affirming the
remainder of the trial court’s order pertaining to the nondisclosure of the public criminal
history record information regarding the offense of reckless driving.
Patrick A. Pirtle
Justice
8