TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
ON RECONSIDERATION EN BANC
NO. 03-08-00241-CV
Travis County District Attorney, Appellant
v.
M. M., Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. D-1-EX-07-000600, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING
OPINION
We grant the Travis County District Attorney’s motion for rehearing, withdraw our
previous opinion and judgment dated August 6, 2010, and substitute the following en banc opinion and
judgment in their place. See Tex. R. App. P. 41.2 (allowing appellate courts to decide to consider case
en banc).
The Travis County District Attorney appeals from the trial court’s order granting M.M.’s
petition for expunction of two charges arising from an arrest in 2004. In the 2004 incident, M.M. was
arrested for driving while intoxicated (DWI), resisting arrest, and assault of a public servant. Later, as
part of a negotiated plea bargain, the Travis County Attorney abandoned the DWI charge, M.M. pled
no contest to the resisting-arrest charge, and M.M. admitted guilt as to the charge of assault of a
public servant and asked the trial court to take the admitted offense into account in sentencing her for
resisting arrest. See Tex. Penal Code Ann. § 12.45 (West 2011). The court sentenced M.M. to two
years of deferred-adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5
(West Supp. 2011). M.M. later filed a petition seeking to expunge all records and files relating to her
DWI and assault charges, and the trial court granted the petition.
On appeal, the Travis County District Attorney challenges the trial court’s order
expunging the assault and DWI charges, contending that M.M. did not meet the requirements with
respect to either charge. We agree and reverse the trial court’s order.
BACKGROUND
The facts of this case are undisputed. In 2004, a state trooper conducted a traffic stop
of M.M.’s car after observing M.M. commit traffic violations. M.M. refused to perform field sobriety
tests and then resisted when the trooper attempted to place her under arrest. With the assistance of two
officers who arrived on the scene, the trooper was eventually able to take M.M. into custody. Later,
when the officers attempted to transfer M.M. from one patrol car to another, M.M. bit one of them on
the head.
After her arrest, M.M. was charged by indictment for the felony offense of assault of a
public servant and by information for the misdemeanor offenses of DWI and resisting arrest. As part
of a plea bargain, the Travis County Attorney abandoned the DWI charge, M.M. pled no contest to the
resisting-arrest charge, and M.M. admitted guilt as to the felony offense of assault of a public servant.
Pursuant to section 12.45 of the penal code, M.M. asked the trial court to take the admitted felony
2
offense into consideration in sentencing her for the charge of resisting arrest. The trial court agreed to
do so and ultimately sentenced M.M. to two years’ deferred-adjudication community supervision.
In 2007, M.M. filed a petition to expunge the records pertaining to the DWI and assault
charges. The Travis County District Attorney (“the DA”), the Travis County Attorney, and the Texas
Department of Public Safety opposed the petition for expunction, arguing that M.M. did not meet the
statutory criteria for expunction. After a hearing, the trial court granted M.M.’s petition. The DA
appeals from the trial court’s order.
STANDARD OF REVIEW
We use an abuse-of-discretion standard in reviewing trial-court rulings on petitions for
expunction. Heine v. Texas Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002,
pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference
to guiding rules and principles of law. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). We
review the trial court’s legal conclusions de novo because the trial court has no discretion in
determining the meaning of the law or applying the law to the facts. See Texas Dep’t of Pub. Safety v.
Nail, 305 S.W.3d 673, 678 (Tex. App.—Austin 2010, no pet.).
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); 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 2005);
State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). If a statute uses a term with a particular meaning
or assigns a particular meaning to a term, we are bound by the statutory usage. See Tex. Gov’t Code
3
Ann. § 311.011 (West 2005); Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002).
Undefined terms in a statute are typically given their ordinary meaning, but if a different or more
precise definition is apparent from the term’s use in the context of the statute, we apply that meaning.
In re Hall, 286 S.W.3d 925, 928-29 (Tex. 2009). 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. Texas Dep’t of Protective & Regulatory Servs. v.
Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004). We consider statutes as a whole rather
than their isolated provisions. Texas Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 642
(Tex. 2004). We presume that the legislature chooses a statute’s language with care, deciding to include
or omit words for a purpose. In re M.N., 262 S.W.3d 799, 802 (Tex. 2008).
DISCUSSION
This appeal is governed by a former version of article 55.01 of the code of criminal
procedure (“the expunction statute”), which sets out the requirements for expunction. See Act of
May 28, 2003, 78th Leg., R.S., ch. 1236, § 1, 2003 Tex. Gen. Laws 3499, 3499 (“former art. 55.01”)
(amended 2011) (current version at Tex. Code Crim. Proc. Ann. art. 55.01 (West Supp. 2011)); Heine,
92 S.W.3d at 648. 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 Dist.] 2009, no pet.). “[A]
person is entitled to expunction only when all statutory conditions have been met.” Harris County Dist.
Att’y v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no pet.); see In re Wilson,
932 S.W.2d 263, 266 (Tex. App.—El Paso 1996, no writ). The trial court has no power to extend
equitable relief beyond the clear meaning of the expunction statute. Texas Dep’t of Pub. Safety v. J.H.J.,
4
274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The cause of action created by
the expunction statute is civil rather than criminal in nature, and the burden of proving compliance with
the statutory requirements rests with the petitioner. Houston Police Dep’t v. Berkowitz, 95 S.W.3d 457,
460 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).
The version of article 55.01(a) in effect when M.M. sought to expunge the charges
provided, in relevant part, 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 the arrest expunged if:
....
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a
felony has not been presented against the person for an offense arising
out of the transaction for which the person was arrested or, if an
indictment or information charging the person with commission of a
felony was presented, the indictment or information has been dismissed
or quashed, and:
(I) the limitations period expired before the date on which a petition
for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed
or quashed because the presentment had been made because of
mistake, false information, or other similar reason indicating
absence of probable cause at the time of the dismissal to believe
the person committed the offense or because it was void;
(B) 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 other
than a Class C misdemeanor; and
5
(C) the person has not been convicted of a felony in the five years preceding
the date of the arrest.
Former art. 55.01. The current version of subarticle 55.01(a)(2) differs from the former subarticle,
but the introductory portion of the current version of subarticle 55.01(a) is identical to the former
version. Compare Tex. Code Crim. Proc. Ann. art. 55.01(a), (a)(2), with former art. 55.01(a), (a)(2).
In other words, both the current and the former versions specify that an individual is entitled to “have
all records and files relating to the arrest expunged” if certain criteria are met. Tex. Code Crim.
Proc. Ann. art. 55.01(a); former art. 55.01(a).
M.M. contends on appeal that the trial court did not err in granting her petition for
expunction because she satisfied all of the requirements of the expunction statute with respect to her
DWI and assault charges. She asserts that the unit of expunction is “the criminal conduct [that]
forms the basis for a criminal charge,” not the criminal conduct that forms the basis for an arrest,
which could include several separate criminal charges. In other words, she contends that the
legislature’s use of the term “the arrest” in former subarticle 55.01(a) refers to each charge arising
from the arrest and that her DWI and assault charges can therefore be divorced from the other charge
and individually expunged.1 We disagree. Based on the plain language of the former expunction
1
Endorsing the construction offered by M.M. would lead to potentially serious problems for
law-enforcement personnel. See Tex. Gov’t Code Ann. § 311.023(5) (West 2005) (explaining that
courts may consider consequences of particular construction when ascertaining meaning of statute).
If we were to interpret “arrest” as referring to a charge arising from an arrest, then an individual
would have the ability to have expunged “all records and files relating to” a charge arising from his
arrest. See Tex. Code Crim. Proc. Ann. art. 55.01(a) (West Supp 2011); former art. 55.01(a). In
circumstances in which only a single charge follows an arrest, an individual would be able to have
all documents related to that charge expunged. The situation would be more problematic under
6
statute, we conclude that the statute only speaks to expunging the records relating to an arrest, not
individual records relating to a charge arising from an arrest.
Specifically under the circumstances of this case, we conclude that M.M. is not
entitled to expunction of the DWI and assault charges because an indictment for the felony offense
of assault of a public servant was presented against her in this case and was not dismissed, thus
disqualifying her for expunction under former subarticle (a)(2)(A) of the statute as to any offense
arising out of the transaction for which she was arrested. See former art. 55.01(a)(2)(A). Our
conclusion is based on two determinations: (1) the felony indictment for assault of a public servant
presented against M.M. and taken into consideration in sentencing her for the resisting-arrest charge
was not dismissed, and (2) given that the indictment was not dismissed, M.M. is disqualified from
expunction under former subarticle (a)(2)(A) for all charges arising from her arrest. We address each
determination separately below.
Felony Indictment
In the trial court, M.M. admitted guilt as to the felony charge of assault of a public
servant, and the trial court agreed to take the admitted offense into consideration in sentencing her
circumstances, like those present in this case, in which more than one charge stems from a single
arrest. The phrase “all records and files relating to” would seem broad enough to include all
documents that discuss or refer to the charge that is the subject of the expunction motion even if
those documents also discuss other charges that resulted from the arrest. Accordingly, provided that
the requirements of article 55.01 were met, an individual would be entitled to expunge documents
that bear upon charges for which expunction was not sought, even if those charges were successfully
prosecuted. Moreover, law-enforcement personnel would be forced to comb through all records
pertaining to and following the arrest to see what documents mentioned the charge at issue. Nothing
in the language of the former statute persuades us that the legislature intended to impose such an
onerous burden on law-enforcement officials. See former art. 55.01.
7
on the resisting-arrest charge. The trial court did so pursuant to section 12.45 of the penal code,
which states:
(a) A person may, with the consent of the attorney for the state, admit during the
sentencing hearing his guilt of one or more unadjudicated offenses and
request the court to take each into account in determining sentence for the
offense or offenses of which he stands adjudged guilty.
(b) Before a court may take into account an admitted offense over which
exclusive venue lies in another county or district, the court must obtain
permission from the prosecuting attorney with jurisdiction over the offense.
(c) If a court lawfully takes into account an admitted offense, prosecution is
barred for that offense.
Tex. Penal Code Ann. § 12.45. The trial court later granted M.M.’s petition to expunge the felony
charge, concluding that the charge had been dismissed when it was taken into consideration under
section 12.45.2 On appeal, the DA contends that the trial court erred in granting the expunction
because an admitted offense taken into consideration under section 12.45 does not constitute a
dismissal under former subarticle (a)(2)(A) of the expunction statute. In response, M.M. argues that
an admitted offense taken into account under section 12.45 “resembles” a dismissal and is the
functional equivalent of a dismissal because the felony proceedings did not result in a conviction or
acquittal and were “terminated solely in her favor.” We disagree with M.M.
Although M.M. correctly points out that the State could no longer prosecute her on
the assault charge under the terms of section 12.45, see id., that is not the same as a dismissal, see
2
The trial court issued findings of fact and conclusions of law in which it specifically
concluded that the felony indictment presented against M.M. “was dismissed due to the proceedings
that occurred pursuant to Tex. P. Code. § 12.45.”
8
Black’s Law Dictionary 537 (9th ed. 2009) (defining “dismissal” as “[t]ermination of an action or
claim without further hearing, esp[ecially] before the trial of the issues involved”). To begin with,
the record in this case does not contain a motion by the State seeking to dismiss the felony assault
charge, and accordingly, there is no order dismissing the charge. Further, the plain language of
section 12.45 does not include the word “dismissal” or otherwise suggest that an admitted offense
under the statute should be or is dismissed at the time that it is taken into consideration in the
sentencing of another offense. Moreover, unlike a dismissal in which there is a termination of the
action without consideration of a defendant’s guilt for the crime alleged, in this case, M.M.’s
culpability for the felony assault charge was considered by the trial court in sentencing M.M. on the
resisting-arrest charge. In light of the preceding, we must conclude that even though the State was
not permitted to prosecute her for the admitted offense, that indictment was not dismissed and
remained pending.
M.M. also references definitions of “dismissal” addressed in the DA’s brief and
argues that if the definitions apply to this case, then the trial court’s consideration of the admitted
offense pursuant to section 12.45 falls within the definitions. See State v. Moreno, 807 S.W.2d 327,
329, 332 (Tex. Crim. App. 1991) (defining “dismisse[d]” as “effectively terminat[ing] the prosecution
in favor of the defendant”); Harris County Dist. Attorney’s Office v. R.R.R., 928 S.W.2d 260, 264
(Tex. App.—Houston [14th Dist.] 1996, no writ) (defining “dismissed” as “essentially terminat[ing]
the proceedings”). To begin with, Moreno is distinguishable from this case because the definition
of “dismisse[d]” discussed in Moreno pertains to article 44.01 of the code of criminal procedure,
which addresses appeals by the State, not article 55.01. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1)
9
(West Supp. 2011). Further, even assuming that the definition in Moreno applies here, the action
taken regarding the felony indictment presented against M.M. does not fit within Moreno’s definition
of “dismisse[d]” because the felony prosecution was not terminated in favor of M.M. Rather, the
trial court took M.M.’s admission of guilt as to the felony offense into consideration when it
sentenced her for resisting arrest, thus allowing for the possibility of an increased sentence, which
is contrary to the concept that the case was terminated in M.M.’s favor.
R.R.R. is also distinguishable from this case because there, the indictment presented
against the defendant was quashed, and the prosecutor notified the defendant that the State would
not reindict the defendant for that offense. 928 S.W.2d at 263. The two actions indicated to the
R.R.R. court that there was an absence of probable cause. Id. at 264. Thus, R.R.R. was consistent
with Moreno’s definition of “dismissal” because in R.R.R., the proceedings against the defendant
were terminated in the defendant’s favor. Here, the trial court took no action on the felony
indictment, and the felony proceedings were not terminated in M.M.’s favor.
Further, holding that an offense taken into account under section 12.45 constituted
a dismissal under former subarticle (a)(2)(A) of the expunction statute would not be consistent with
a primary purpose of the expunction statute, which is to permit the expunction of records of
wrongful arrests. Harris County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991);
T.C.R. v. Bell County Dist. Attorney’s Office, 305 S.W.3d 661, 671 (Tex. App.—Austin 2009,
no pet.). When a defendant admits guilt as to an offense arising out of an arrest, she necessarily
admits that she was not wrongfully arrested. See Ex parte P.D.H., 823 S.W.2d 791, 793 (Tex.
App.—Houston [14th Dist.] 1992, no writ) (“In the instant case, appellee pled guilty and by doing
10
so admitted that she was not wrongfully arrested.”); see also J.T.S., 807 S.W.2d at 574 (“[T]he
expunction law clearly was not ‘intended to allow a person who is arrested, pleads guilty to an
offense, and receives probation pursuant to a guilty plea to expunge arrest and court records
concerning that offense.’” (quoting Texas Dep’t of Pub. Safety v. Failla, 619 S.W.2d 215, 217
(Tex. Civ. App.—Texarkana 1981, no writ))). Here, M.M. admitted guilt as to the felony assault
charge, and the offense was taken into account in sentencing her on the resisting-arrest charge. By
admitting guilt as to the assault charge, she also admitted that her arrest was not wrongful. See
P.D.H., 823 S.W.2d at 793; J.T.S., 807 S.W.2d at 574.
For all of the reasons given above, we hold that the trial court erred in determining
that consideration of M.M.’s admission of guilt as to the assault charge in sentencing her on the
resisting-arrest charge pursuant to section 12.45 constituted a “dismissal” of the assault charge under
former subarticle (a)(2)(A) of the expunction statute.
Former Subarticle (a)(2)(A)
Having determined that M.M.’s felony assault charge was not dismissed, we must
also conclude that M.M. failed to satisfy former subarticle (a)(2)(A) of the expunction statute, which
requires that any felony indictment presented as a result of an arrest be dismissed before a person can
obtain expunction of an arrest record. Specifically, former subarticles (a) and (a)(2)(A) state, in
relevant part, that:
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:
11
an indictment or information charging the person with commission of a felony has
not been presented against the person for an offense arising out of the transaction
for which the person was arrested or, if an indictment or information charging the
person with commission of a felony was presented, the indictment or information
has been dismissed or quashed.
Former art. 55.01(a), (a)(2)(A).
Neither party makes a specific argument regarding former subarticle (a)(2)(A) of
the expunction statute. Rather, the parties focus on former subarticle (a)(2)(B) of the statute,
which sets forth the second requirement that must be satisfied before a person is entitled to
expunction. See id. (a)(2)(B). However, M.M. does not reach the second requirement because
she does not satisfy the first requirement. As previously stated, we use a de novo standard of
review in construing statutes and in reviewing the trial court’s legal conclusions, and an
individual is only entitled to expunction if she satisfies all of the statutory requirements. See
F.F.P. Operating Partners, 237 S.W.3d at 683; Nail, 305 S.W.3d at 678; Lacafta, 965 S.W.2d
at 569. Thus, regardless of the focus of the parties’ briefs, we conclude that if M.M. fails to
satisfy any of the requisites of the expunction statute, she is not entitled to expunction as a matter
of law.
M.M. does not satisfy the first requirement of the expunction statute as set forth
under former subarticle (a)(2)(A) because former subarticles (a) and (a)(2)(A) permit the
expunction of records pertaining to the arrest, not to individual charges arising from the arrest.
Specifically, former subarticle (a) sets forth the relief that will be granted to a person who meets
the requirements of the statute, stating that a person is entitled to have “all records and files
relating to the arrest expunged” (emphasis added) if the person meets the three requirements set
12
forth in subparts (A), (B), and (C) of former subarticle (a)(2) of the statute. Thus, from the
beginning of the statute, the plain language refers to “the arrest” and grants relief related to “the
arrest,” not to individual charges arising from the arrest.
The plain language in former subarticle (a)(2)(A) is consistent with that in former
subarticle (a). Former subarticle (a)(2)(A) requires that:
an indictment or information charging the person with commission of a felony
[was not] presented against the person for an offense arising out of the transaction
for which the person was arrested or, if an indictment or information charging the
person with commission of a felony was presented, the indictment or information
[was] dismissed or quashed.
Former art. 55.01(a)(2)(A) (emphasis added). Based on the italicized portion of the provision,
a trial court may not expunge an arrest record if the transaction for which the person was arrested
resulted in a felony indictment that was not dismissed. Thus, former subarticle (a)(2)(A)
disqualifies a person from expunction for all charges arising from the arrest if any felony
indictment was presented for any offense arising from the arrest. This meaning is made especially
clear given the language of former subarticle (a), which refers only to “the arrest” and states that
the relief that would be granted if a defendant meets the necessary requirements is expunction
of “all records and files relating to the arrest.” Because M.M. was presented with a felony
indictment that was not dismissed, she does not satisfy the first requirement for expunction and
is not entitled to expunction of any of the records arising from her arrest.
To hold otherwise would require us to change various portions of the language in
former subarticles (a) and (a)(2)(A). For example, we would first need to read subarticle (a) as
13
authorizing the expunction of all records and files relating to “each charge arising from the
arrest,” rather than “the arrest.” We would then need to read subarticle (a)(2)(A) as prohibiting
the presentation of a felony indictment for “the charge the person is seeking to expunge”
rather than for “an offense arising out of the transaction for which the person was arrested.” As
we previously stated, an individual must comply with all of the requirements in order to be
entitled to expunction, and courts do not have equitable power to grant relief beyond the
plain language of the expunction statute. S.C., 305 S.W.3d at 260; J.H.J., 274 S.W.3d at 806;
Lacafta, 965 S.W.2d at 569. We cannot ignore or alter various portions of the language of the
statute in order to achieve a construction that allows for the expunction of one of multiple charges
arising from an arrest.
Further, allowing a person to expunge individual charges when there is no
suggestion that the arrest that resulted in the charges was wrongful would be contrary to a primary
purpose of the expunction statute, which is to allow the record of a wrongful arrest to be
expunged, see J.T.S., 807 S.W.2d at 574. Here, M.M. admitted guilt as to the assault charge, was
convicted of the resisting-arrest charge, and was not prosecuted for the DWI charge only because
the county attorney abandoned the charge as part of a plea bargain. As previously stated, an
admission of guilt as to an offense arising from an arrest is also an admission that the arrest was
not wrongful.3 See P.D.H., 823S.W.2d at 793; J.T.S., 807 S.W.2d at 574.
3
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.” Harris County Dist.
Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991).
14
We recognize that former subarticle (a)(2)(B) makes reference to the phrase
“the charge” in setting forth the second requirement necessary for expunction, but under the
circumstances of this case, M.M. does not reach the second requirement because she does not
satisfy the first requirement. Even if she were not disqualified under the first requirement, a
reference to “the charge” in one provision of the statute does not change the plain language of
former subarticles (a) and (a)(2)(A), which are written from the perspective of “the arrest” and
which are consistent with the primary purpose of the statute. Any conflict in the language of the
statute must be resolved by the legislature, not the courts. If the legislature intends something
different, it could amend the statute to authorize the expunction of all records and files relating
to an individual charge, rather than an arrest, and could further clarify the requirements for
expunction to make it clear that each charge may be expunged individually if it meets the
necessary requirements, even if the arrest itself was not wrongful and even if the arrest resulted
in a conviction on another charge.4
Under the terms of the former statute, M.M. is not entitled to expunction of her
DWI and assault charges because she fails to satisfy the first requirement for expunction.
Specifically, she was presented with a felony indictment for assault of a public servant that was
not dismissed, thus disqualifying her for expunction under former subarticle (a)(2)(A) of the
4
The former expunction statute did not provide an absolute bar to the retention of a wrongful
arrest on a person’s record. Even when people satisfied the first two requirements of the former
expunction statute and showed that they were in fact wrongfully arrested, they still had to prove that
they were not convicted of a felony in the five years preceding the date of the arrest. Former art.
55.01(a)(2)(C). If they were so convicted, the arrest would stay on their record even though it was
proven to be wrongful.
15
expunction statute.5 Accordingly, the trial court abused its discretion in expunging M.M.’s DWI
and assault charges.
CONCLUSION
In light of the foregoing, we reverse the trial court’s expunction order and render
judgment denying expunction for M.M.’s DWI and assault charges.
_________________________________________
David Puryear, Justice
Before Chief Justice Jones, Justices Puryear, Pemberton, Henson, Rose, and Goodwin
Reversed and Rendered on Reconsideration En Banc
Filed: December 8, 2011
5
The analysis in this case conflicts with the analysis employed by this Court in a prior
memorandum opinion. See S.P.S. v. State, No. 03-09-00151-CV, 2010 Tex. App. LEXIS 1358
(Tex. App.—Austin Feb. 26, 2010, no pet.) (mem. op.). In S.P.S., the defendant was arrested and
charged with the felony offenses of criminal mischief and burglary of a vehicle. Id. at *1. Like this
case, the defendant in S.P.S. pled guilty to one of the charges, and the State abandoned the other
charge as part of a plea bargain. Id. Ultimately, this Court concluded in S.P.S. that the defendant
was entitled to the expunction of the abandoned charge because he satisfied the requirements of the
expunction statute with respect to that charge. Id. at *10-11. In reaching this result, we primarily
relied on another appellate court’s decision that had previously concluded that article 55.01
authorized the expunction “of less than all charges arising from a single arrest.” See Ex parte E.E.H.,
869 S.W.2d 496, 498 (Tex. App.—Houston [1st Dist.] 1993, writ denied). However, as discussed
above, we hold in this opinion that former article 55.01 only authorizes the expunction of records
relating to an arrest and does not explicitly authorize expunction of records relating to individual
charges arising from an arrest. Accordingly, we decline to follow the analysis employed in our prior
memorandum opinion and respectfully disagree with the opinions of our sister courts of appeals to
the extent that they have permitted the expunction of an individual charge arising from a multiple-
charge arrest. See Ex parte E.E.H., 869 S.W.2d at 498; see also State v. Knight, 813 S.W.2d 210,
211-12 (Tex. App.—Houston [14th Dist.] 1991, no writ) (reversing portion of trial court’s order that
expunged records pertaining to charges for tampering with governmental record and aggravated
perjury but affirming portion of order expunging record for other misdemeanor charge for tampering
with governmental record that was dismissed as part of plea bargain).
16