MEMORANDUM OPINION
No. 04-09-00772-CV
EX PARTE J.F.G.
From the 381st Judicial District Court, Starr County, Texas
Trial Court No. DC-09-339
Honorable Jose Luis Garza, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Rebecca Simmons, Justice
Delivered and Filed: November 24, 2010
REVERSED AND RENDERED
J.F.G. filed a petition to expunge records of his 2001 driving while intoxicated (DWI)
arrest and conviction. The trial court granted his petition, and the Department of Public Safety
(DPS) appealed, arguing that J.F.G. was ineligible for the expunction because he was convicted
of the offense. We reverse the trial court’s order and render judgment denying the expunction.
BACKGROUND
In 2001, J.F.G. was arrested in Starr County for driving while intoxicated. According to
J.F.G.’s petition, he was convicted and completed twelve months of probation. In 2009, J.FG.
filed a petition for an expunction of his record, and a hearing was held on the matter. Though
04-09-00772-CV
DPS was properly notified of the hearing, only J.F.G. appeared. The trial court granted J.F.G.’s
petition.
EXPUNCTION
A. Standard of Review
An appellate court reviews a trial court’s grant of an expunction for an abuse of
discretion. Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex. App.—San Antonio 2001, no pet.). A
trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any
guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985). Accordingly, an appellate court must reverse an order granting an expunction if the
applicant fails to meet the statutory requirements. See State v. Beam, 226 S.W.3d 392, 393–95
(Tex. 2007).
B. J.F.G. Failed to Meet the Statutory Requirements for an Expunction
Expunction is a statutory privilege governed by article 55.01 of the Texas Code of
Criminal Procedure, which provides that an arrested person is entitled to have the records of an
arrest expunged if (1) he was acquitted or pardoned; or (2) there was no indictment or the
indictment was dismissed, and several other requirements are met, including that the applicant
was not convicted. TEX. CODE CRIM. PROC. ANN. art. 55.01 (West 2006 & Supp. 2010). These
requirements apply to both felonies and misdemeanors. Id. The purpose of the expunction
statute is to allow the record of a wrongful arrest to be expunged, not to allow a person who was
convicted to expunge the record of a righteous arrest. See Harris County Dist. Attorney’s Office
v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). Thus, the statute does not permit an expunction of
records relating to a conviction unless the conviction was pardoned. See TEX. CODE CRIM. PROC.
ANN. art. 55.01(a)(1) & 55.01(2)(B).
-2-
04-09-00772-CV
J.F.G. stated in his petition that his arrest resulted in a conviction. During the hearing,
J.F.G. asserted under oath that the contents of the petition were true and correct. J.F.G.’s petition
also stated that he was entitled to an expunction of his DWI arrest and conviction because the
conviction “was not [for] a felony . . . .” Though the expunction statute historically treated
felonies and misdemeanors differently, the new statutory requirements now apply to both. See
Beam, 226 S.W.3d at 393–95; accord TEX. CODE CRIM. PROC. ANN. art. 55.01(a).
Because J.F.G. was convicted of a DWI, he does not meet the expunction statute’s
requirements. Accordingly, we reverse the order of the trial court and render judgment denying
expunction. 1
Rebecca Simmons, Justice
1
Although only DPS appealed the expunction, this holding applies to all agencies addressed in the expunction order
because they are interwoven and have identical interests for the purposes of maintaining criminal records. See Ex
parte Elliot, 815 S.W.2d 251, 251–52 (Tex. 1991).
-3-