TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-15-00304-CV
T. H., Appellant
v.
Texas Department of Public Safety, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 266,267-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING
MEMORANDUM OPINION
On July 18, 2012, T.H. was arrested for forgery and theft. The charge of forgery
against T.H., a Class A misdemeanor, was assigned cause number 2C12-06514. See Tex. Penal
Code § 32.21(c). According to the charging instrument, T.H. committed the forgery offense on
January 23, 2012. Conversely, the charge of theft against T.H., a Class B misdemeanor, was
separately assigned cause number 2C12-06515, and T.H. was alleged to have committed the offense
on February 2, 2012. See id. § 31.03(e)(2). Pursuant to a plea agreement, the State moved to dismiss
the forgery charge because T.H. “agreed to plead guilty in a companion case in return for dismissal.”
The forgery charge was dismissed by the county court on January 18, 2013. That same day, T.H.
pleaded no contest to the theft charge and was placed on community supervision deferred
adjudication, which she successfully completed.
T.H. subsequently filed a petition for expunction pursuant to chapter 55 of the Texas
Code of Criminal Procedure. See Tex. Code Crim. Proc. arts. 55.01-.06 (expunction of criminal
records). In her petition, T.H. sought expunction of all records and files related to the charge of
forgery against her, asserting that she was entitled to expunction under article 55.01(a)(2) because
the charge had been dismissed. The Texas Department of Public Safety filed an answer and general
denial opposing T.H.’s petition. Following a hearing, at which T.H. testified, the trial court denied
T.H.’s petition. T.H. appeals the judgment of the trial court. We will affirm.
ANALYSIS
The remedy of expunction allows a person who has been arrested for an offense to
have all information about the arrest removed from the State’s records if he meets the statutory
requirements set out in chapter 55 of the Texas Code of Criminal Procedure. See Tex. Code Crim.
Proc. arts. 55.01-.06; Texas Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex. App.—Austin
2010, no pet.). In relevant part, article 55.01(a) provides:
(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) 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:
(A) regardless of whether any statute of limitations exists for the
offense and whether any limitations period for the offense has
expired, an indictment or information charging the person
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with the commission of a misdemeanor offense based on the
person’s arrest or charging the person with the commission of
any felony offense arising out of the same transaction for
which the person was arrested:
(i) has not been presented against the person at any time
following the arrest and:
[a certain amount of time has elapsed]; or
(ii) if presented at any time following the arrest, [the
indictment or information was dismissed or quashed
for certain reasons, including that the presentment
was a result of reasons indicting absence of probable
cause]; or
(B) prosecution of the person for the offense for which the person
was arrested is no longer possible because the limitations
period has expired.
Tex. Code Crim. Proc. art. 55.01(a)(2).
In one issue on appeal, T.H. asserts that the trial court abused its discretion in denying
her petition because, according to her, the undisputed evidence shows that the statutory requirements
for expunging the charge of forgery have been met.1 That is, T.H. asserts that the charge of forgery
against her did not result in a final conviction nor did the forgery charge result in the imposition of
1
We review a trial court’s ruling on a petition for expunction under an abuse-of-discretion
standard. 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 when its decision is (1) arbitrary, unreasonable, or without
regard to guiding principles; or (2) without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19,
21 (Tex. 1998). To the extent the trial court’s expunction ruling involves questions of law, 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.” See Texas Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 679 (Tex.
App.—Austin 2010, no pet.) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)).
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community supervision for that offense. In addition, T.H. contends that the limitations period for
the dismissed offense expired prior to her filing the petition for expunction.
In response, the Department contends that the trial court properly denied T.H.’s
petition because T.H. failed to establish that “she did not serve community supervision for a
charge arising out of the arrest.” The Department acknowledges that chapter 55 requires the
petitioner to show only that “there was no court-ordered community supervision . . . for the offense,”
but argues that the expunction statute, when read as whole, is arrest based. In other words, under
the Department’s interpretation of article 55.01, individual charges arising from a multi-charge
arrest cannot be expunged, and expunction is proper only when all charges arising from the arrest
meet the requirements of article 55.01. According to the Department, because T.H. was placed on
“community supervision under Article 42.12” for the charge of theft against her and because, as a
result, the theft charge does not meet the requirements of article 55.01, none of the records or files
related to T.H.’s July 18, 2012 arrest can be expunged.
This Court construed a prior version of article 55.01 and held that the expunction of
individual records related to an arrest was unavailable under former subarticles (a) and (a)(2)(A)
of article 55.01. Travis Cty. Dist. Attorney v. M.M., 354 S.W.3d 920, 921-22 (Tex. App.—Austin
2010, no pet.); see Act of May 28, 2003, 78th Leg., R.S., ch. 1236, § 1, 2003 Tex. Gen. Laws 3499,
3499-50 (amended 2011) (current version at Tex. Code Crim. Proc. art. 55.01). The version of
article 55.01 at issue in M.M. allowed a petitioner, upon demonstrating the existence of certain
conditions, “to have all records and files related to the arrest expunged.” M.M., 354 S.W.3d at 927
(citing former Tex. Code Crim. Proc. art. 55.01(a)(2)). At the same time, the statute disqualified a
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petitioner from expunction for all charges arising from the arrest if a felony charge was presented
“for an offense arising out of the transaction for which the person was arrested.” Id. at 928 (citing
former Tex. Code Crim. Proc. art. 55.01(a)(2)). Based on this language, we concluded that the
petitioner was not entitled to the expunction of unadjudicated charges for driving while intoxicated
and assault under former subarticle (a)(2)(a) because an indictment for the felony offense of assault
of a public servant—an offense which arose from the same transaction—had been presented against
her and was not dismissed. Id. at 924, 929.
In 2011, article 55.01 was amended, and as a result, a petitioner seeking expunction
based on dismissal of charges is no longer required to prove in every instance that no felony charge
has been presented “for an offense arising out of the transaction.” See Texas Dep’t of Pub. Safety
v. G.B.E., 459 S.W.3d 622, 627 n.1 (Tex. App.—Austin 2014, pet. denied) (en banc); see Act of May
25, 2011, 82d Leg., R.S., ch. 894, § 1, 2011 Tex. Gen. Laws 2275, 2275-76. Instead, a petitioner
seeking expunction under subarticle (a)(2) must now prove, as a threshold matter, that (1) he has
been released; (2) the charge, if any, has not resulted in final conviction; (3) the charge, if any, is no
longer pending; and (4) there was no court-ordered community supervision under Article 42.12 for
the offense. Tex. Code Crim. Proc. art. 55.01(a)(2). In Texas Department of Public Safety v. G.B.E.,
this Court construed the current version of article 55.01 and concluded that the petitioner was not
entitled to the expunction of an individual charge arising from his multi-charge arrest under the
circumstances presented. 459 S.W.3d at 627.
In G.B.E, the evidence established that the petitioner had been arrested and charged
with the offense of driving while intoxicated and later charged with reckless driving. Id. at 624.
Although the DWI charge was dismissed, the undisputed evidence was that the DWI charge was
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dismissed only because G.B.E. agreed to plead no contest to the charge of reckless driving, which
he did and of which he was ultimately convicted. Id. at 630. Focusing our analysis on the statutory
language “the charge, if any, has not resulted in a final conviction,” and without deciding whether
article 55.01 as a whole operates as an arrest-based or offense-based expunction statute, we held
that G.B.E. failed to prove that he was entitled to have any arrest records or files expunged. Id.
Specifically, we held that a petitioner is not entitled to expunction under article 55.01(a)(2) when a
charge is dismissed but that dismissal results in a final conviction of another charge arising from the
same arrest. Id. at 629; see also R.L.M. v. State, No. 03-14-00451-CV, 2015 WL 4076963, at *2
(Tex. App.—Austin June 30, 2015, no pet.) (mem. op.).
In this case, T.H.’s arrest resulted in deferred adjudication community supervision.
Because T.H. successfully completed the conditions of her community supervision, her arrest did not
result in a final conviction. Accordingly, our holding in G.B.E., which focused on the element of
“has not resulted in a final conviction,” is not directly controlling. Nevertheless, since our decision
in G.B.E., numerous courts of appeals, including this court, have held that chapter 55 operates “from
top to bottom” as an arrest-based expunction statute. S.J. v. State, 438 S.W.3d 838, 845 (Tex.
App.—Fort Worth 2014, no pet.); see Ex parte Vega, No. 13-15-00245-CV, 2016 WL 455327, at
*5 (Tex. App.—Corpus Christi Feb. 4, 2016, no pet.); Texas Dep’t of Pub. Safety v. M.R.S., 468
S.W.3d 553, 556 (Tex. App.—Beaumont 2015, no pet.); In re Expunction, 465 S.W.3d 283, 290
(Tex. App.—Houston [1st Dist.] 2015, no pet.); Ex parte S.D., 457 S.W.3d 168, 172 (Tex.
App.—Amarillo 2015, no pet.); see also Scaife v. State, No. 03-14-00274-CV, 2015 WL 3542883,
at *2 (Tex. App.—Austin June 3, 2015, no pet.) (mem. op.) (“[C]ourts have determined that the
expunction statute is ‘arrest-based,’ meaning that expunction is not an available remedy for less than
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all of the charges stemming from one arrest.”); Texas Dep’t of Pub. Safety v. Dicken, 415 S.W.3d
476, 480 (Tex. App.—San Antonio 2013, no pet.) (“The statute does not address or make allowances
for expunction of individual offenses stemming from an arrest.”). In concluding that all charges
arising from an arrest must meet article 55.01’s requirements, these courts have predominantly
considered the introductory statement in subarticle 55.01(a) that a petitioner is entitled to have
“all records and files relating to the arrest expunged.” See Tex. Code Crim. Proc. art. 55.01(a)
(emphasis added); see also Vega, 2016 WL 455327, at *5. In addition, courts have noted provisions
in article 55.01 giving weight to charges for additional offenses “arising out of the same arrest or
based on the same criminal transaction,” see In re Expunction, 465 S.W.3d at 289, and the lack of
any provision in the statute contemplating the partial, content-based removal or redaction of arrest
records, see S.J., 438 S.W.3d at 843; see also Vega, 2016 WL 455327, at *5 (noting that article 55.02
requires that if return of affected records is impracticable, government agency or official must
“obliterate” any parts of its records and files which “can identify the person,” but makes no provision
for expunging particular charge).
Viewing the statute as a whole, and consistent with these cases, we conclude that the
current expunction statute maintains an arrest as the unit of expunction and that, consequently, a
petitioner must prove that each charge arising from the arrest satisfies the requirements of article
55.01.2 As we recognized in M.M., the primary purpose of the expunction statute is to allow the
2
In 2015, the Texas Legislature attempted to amend article 55.01 to allow for offense-based
expunction under certain circumstances. See Senate Research Center, Bill Analysis, Tex. H.B. 3579,
84th Leg., R.S. (2015) (engrossed bill analysis). Among other things, House Bill 3579 would have
amended the first sentence of article 55.01 to state that a petitioner is “entitled to have all records
and files relating to the offense for which the person was arrested.” See id. (emphasis added).
However, the bill was later vetoed by the governor. According to Governor Abbott’s veto statement,
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record of a wrongful arrest to be expunged. M.M., 354 S.W.3d at 920; see M.R.S., 468 S.W.3d at
556 (“The purpose of the expunction statute is to remove records of wrongful arrests.”). “[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 . . . .” M.M., 354 S.W.3d at 928;
see also S.D., 457 S.W.3d at 171-72 (citing M.M., 354 S.W.3d at 928).
The undisputed evidence shows that T.H. was placed on deferred adjudication for
the charge of theft. We have previously recognized that trial court orders that impose deferred
adjudication are orders that impose “court-ordered community supervision under Article 42.12”
within the meaning of article 55.01. Nail, 305 S.W.3d at 678. Consequently, T.H. cannot demonstrate
that this theft charge meets the requirements of article 55.01(a)(2). See Tex. Code Crim. Proc. art.
55.01(a)(2) (requiring petitioner to show that “there was no court ordered community supervision
under Article 42.12”). The theft charge against T.H. arose from her arrest on July 18, 2012.
Consequently, the trial court did not abuse its discretion in concluding that the records and files
related to the July 18, 2012 arrest fail to meet the statutory requirements for expunction. We
overrule T.H.’s issue on appeal.
CONCLUSION
Having overruled T.H.’s sole issue on appeal, we affirm the trial court’s order
denying T.H.’s petition for expunction.
House Bill 3579 went “too far by allowing courts to expunge dismissed criminal charges—including
serious felony charges—even when the defendant was convicted of other, related charges.” Veto
Message of Governor Abbott, Tex. H.B. 3579, 84th Leg., R.S. (2015).
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__________________________________________
Scott K. Field, Justice
Before Justices Puryear, Goodwin, and Field
Affirmed
Filed: October 6, 2016
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