Texas Department of Public Safety v. T. R. W.

Affirmed as Modified and Memorandum Opinion filed August 8, 2019.

In The

Fourteenth Court of Appeals
NO. 14-17-00572-CV

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant
V.
T.R.W., Appellee

On Appeal from the 207th District Court
Hays County, Texas
Trial Court Cause No. 16-1887

MEMORANDUM OPINION

The Texas Department of Public Safety appeals from the trial court’s order
expunging records and files relating to a misdemeanor theft charge against T.R.W.
The trial court’s expunction order addresses multiple charges stemming from two
different dates—October 31, 2011 and January 2, 2012—but DPS only challenges
the expunction of the theft charge filed on the latter date.1

1
Because DPS does not challenge the expunction of the October 31, 2011 charges, we do
 In regards to the January 2, 2012 theft charge, DPS contends in two issues
that (1) the trial court misinterpreted the expunction statute and (2) the expunction
ruling was not supported by legally sufficient evidence. Because T.R.W. did not
present evidence establishing her entitlement to expunction of the January 2, 2012
theft charge, we modify the trial court’s expunction order to remove the language
ordering expunction of records and files pertaining to that charge. We affirm the
order as modified.

This case was transferred to this court from the Third Court of Appeals by a
Texas Supreme Court transfer order. We must therefore decide the case in
accordance with the precedent of the Third Court of Appeals if our decisions
otherwise would have been inconsistent with that court’s precedent. See Tex. R.
App. P. 41.3.

Background

T.R.W. was arrested on January 2, 2012 and charged with both misdemeanor
theft and misdemeanor possession of a controlled substance. Both offenses were
also alleged to have occurred on January 2, 2012, but the record does not contain
any other details concerning the circumstances involved. T.R.W. and the State
thereafter entered a plea agreement. Pursuant to this agreement, T.R.W. entered a
Pre-Trial Intervention Program (PTI) in regards to the theft charge. She further
pleaded no contest to the possession charge and was sentenced to deferred
adjudication. Under the terms of her deferred adjudication, T.R.W. was sentenced
to two years of community supervision.

After T.R.W. successfully completed the terms of her PTI, the theft charge
was dismissed. After she completed the terms of her deferred adjudication, the

not address that portion of the expunction order.

2
possession charge was likewise dismissed. On September 12, 2016, T.R.W.
requested an order of nondisclosure under Texas Government Code chapter 411,
subchapter E-1 regarding records pertaining to the possession charge. This request
was granted on October 19, 2016. T.R.W. also filed her petition for expunction on
September 12, 2016, requesting expunction of records and files pertaining to her
theft charge pursuant to Texas Code of Criminal Procedure article 55.01(a)(2).2

DPS filed an answer asserting principally that because T.R.W. received
community supervision for the possession charge stemming from the same arrest,
she was not entitled to have records expunged relating to the theft offense under
article 55.01(a)(2). Despite notice, however, DPS failed to appear for the hearing
on the petition for expunction.

At the hearing, T.R.W.’s counsel addressed the community supervision issue
raised by DPS by asserting that because the records relating to the possession
charge were subject to a nondisclosure order, DPS could not rely on the possession
charge to contest expunction of the theft charge. Counsel additionally argued that
DPS (as a representative of the State) was estopped from contesting expunction of
the theft charge because the PTI documents relating to that charge stated T.R.W.
could get records relating to the charge expunged upon successful completion of
the terms of the PTI.

Also at the hearing, an assistant district attorney from the Hays County
District Attorney’s Office appeared and pointed out that someone from that office
had signed the proposed expunction order as “Approved.” The assistant district
attorney also indicated that the district attorney’s office was not challenging
T.R.W.’s entitlement to expunction. At the conclusion of the hearing, the trial court

2
T.R.W. did not expressly cite article 55.01(a)(2) in her petition for expunction, but she
asserted that she met the requirements of that section.

3
ordered that the records pertaining to T.R.W.’s theft charge be expunged.

DPS now brings this restricted appeal. In its first issue, DPS asserts that the
trial court misinterpreted the statute in ordering expunction, arguing that because
T.R.W. received community supervision for one offense stemming from her
January 2, 2012 arrest, her records cannot be expunged for any offense stemming
from that arrest. In its second issue, DPS asserts that the evidence was legally
insufficient to establish T.R.W.’s entitlement to expunction of the records
pertaining to the theft offense.

Standards of Review

In a restricted appeal, the appellant must demonstrate that: (1) it filed notice
of the appeal within six months after the judgment was signed, (2) it was a party to
the underlying lawsuit, (3) it did not participate in the hearing that resulted in the
judgment complained of and did not timely file any post-judgment motions or
requests for findings of fact and conclusions of law, and (4) error is apparent on the
face of the record. Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014). It is
undisputed in this case that DPS has satisfied the first three requirements for a
successful restricted appeal. The absence of legally sufficient evidence to support a
judgment is reviewable in a restricted appeal as error apparent on the face of the
record. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997);
Arbogust v. Graham, No. 03-17-00800-CV, 2018 WL 3150996, at *1 (Tex.
App.—Austin June 28, 2018, no pet.) (mem. op.).

DPS contends that the trial court misinterpreted the requirements of the
statute and that the evidence presented at the expunction hearing was legally
insufficient to support the order. We review the trial court’s interpretation of a
statute de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex.
1989). In doing so, our primary objective is to effectuate the legislature’s intent.
4
City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). We ascertain intent
by first looking to the plain and common meaning of the words used in the statute.
Id. at 625–26. We rely on the plain meaning of the text, unless a different meaning
is supplied by legislative definition or is apparent from the context, or unless such
a construction would lead to absurd results. Id.; see also Tex. Gov’t Code §
311.011. We view terms in context to give them full effect. State v. Gonzalez, 82
S.W.3d 322, 327 (Tex. 2002). And, we presume that the legislature intended a just
and reasonable result. City of Rockwall, 246 S.W.3d at 626.

In deciding whether the trial court abused its discretion in making an
expunction determination, we consider whether the trial court’s ruling is supported
by the evidence. Ex parte Brown, No. 14-17-00695-CV, 2018 WL 3977174, at *2
(Tex. App.—Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.) (citing Tex.
Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—Austin 2014,
pet. denied) (en banc)). When reviewing for legal sufficiency, we consider the
evidence in the light most favorable to the trial court’s finding and indulge every
reasonable inference that supports the challenged finding. City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005). We credit favorable evidence if a reasonable
factfinder could and disregard contrary evidence unless a reasonable factfinder
could not. Id. at 827. We will sustain a legal sufficiency challenge if the record
reveals: (1) a complete absence of evidence of a vital fact; (2) the court is barred
by rules of law or of evidence from giving weight to the only evidence offered to
prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a
mere scintilla; or (4) the evidence establishes conclusively the opposite of the vital
fact. Id. at 810; G.B.E., 459 S.W.3d at 624.

Expunction Law

The remedy of expunction allows a person who has been arrested to have all

5
records and files relating to the arrest removed from the State’s records if she
meets the statutory requirements set out in the expunction statute, chapter 55 of the
Texas Code of Criminal Procedure. Tex. Code Crim. Proc. arts. 55.01-.06; Tex.
Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 674 (Tex. App.—Austin 2010, no
pet.). Expunction is not a right but a statutory privilege, and the petitioner bears the
burden of proving that each of the required conditions have been met. G.B.E., 459
S.W.3d at 625. To carry this burden, the petitioner must provide more than mere
allegations in a verified pleading. Tex. Dep’t of Pub. Safety v. J.W.M., No. 03-17-
00792-CV, 2018 WL 6519696, at *3 (Tex. App.—Austin Dec. 12, 2018, no pet.)
(mem. op.). A trial court must strictly comply with the statutory requirements and
has no equitable power to expand the remedy’s availability beyond what the
legislature has provided. Nail, 305 S.W.3d at 675.

The expunction statute identifies several different circumstances under
which expunction is permitted, including acquittal, pardon, on recommendation by
a prosecutor, and when charges are dismissed. Tex. Code Crim. Proc. art. 55.01;
see also State v. T.S.N., 547 S.W.3d 617, 623 (Tex. 2018) (“Different parts of the
article, including the expunction requirements, address different factual
situations . . . .”). Each potential avenue has requirements that must be satisfied
before expunction may be ordered. See id. at 620 (“A person is not entitled to
expunction until all of the statutory conditions are met.”). As mentioned, T.R.W.
sought expunction specifically pursuant to article 55.01(a)(2), which at the time
she filed her petition provided in full:

(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:
....

6
 (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 Chapter 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 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) at least 180 days have elapsed from the date of arrest if the
arrest for which the expunction was sought was for an offense
punishable as a Class C misdemeanor and if there was no felony
charge arising out of the same transaction for which the person was
arrested;

(b) at least one year has elapsed from the date of arrest if the
arrest for which the expunction was sought was for an offense
punishable as a Class B or A misdemeanor and if there was no felony
charge arising out of the same transaction for which the person was
arrested;
(c) at least three years have elapsed from the date of arrest if the
arrest for which the expunction was sought was for an offense
punishable as a felony or if there was a felony charge arising out of
the same transaction for which the person was arrested; or
(d) the attorney representing the state certifies that the
applicable arrest records and files are not needed for use in any
criminal investigation or prosecution, including an investigation or
prosecution of another person; or
(ii) if presented at any time following the arrest, was dismissed
or quashed, and the court finds that the indictment or information was
dismissed or quashed because the person completed a pretrial
intervention program authorized under Section 76.011, Government
Code, because the presentment had been made because of mistake,
7
 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 the indictment or information was
void; 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).3

The law interpreting article 55.01 has been in flux over the past year,
particularly in regard to whether the statute should be interpreted as permitting
expunction for individual alleged offenses when multiple alleged offenses were
charged following a single arrest. Before the Texas Supreme Court issued its
opinion in T.S.N., most courts of appeals that had addressed the issue, including the
Third Court, held that the statute was wholly arrest-based, meaning if not all of the
charged offenses stemming from an arrest were eligible to be expunged, then no
charged offense stemming from the arrest could be expunged. See, e.g., Tex. Dep’t
of Pub. Safety v. A.M., No. 03-17-00114-CV, 2018 WL 1177601, at *2 (Tex.
App.—Austin March 7, 2018, no pet.) (mem. op.) (“Texas courts, including ours,
have held that article 55.01 requires an ‘arrest-based’ approach to expunction
because it authorizes expunction of records concerning an arrest. . . . If expunction
is not available for all charges stemming from an arrest, it is not available for any
of them.”); T.H. v. Tex. Dep’t of Pub. Safety, No. 03-15-00304-CV, 2016 WL
5874869, at *3 (Tex. App.—Austin Oct. 6, 2016, no pet.) (mem. op.) (“The statute

3
At the time of her arrest and at the time T.R.W. filed her petition for expunction, article
55.01(a)(2) referenced community supervision under Chapter 42.12. The referenced community
supervision provisions were subsequently moved in a nonsubstantive revision to chapter 42A,
and the current version of article 55.01(a)(2) reflects this change. See Act of June 17, 2015, 84th
Leg., R.S., ch. 770, § 2.23, 2015 Tex. Sess. Law Serv. 2320, 2372. Although T.R.W. clearly
sought expunction pursuant to article 55.01(a)(2), she did not specify under which subsection her
claim fell, i.e., (A)(i), (A)(ii), or (B).

8
does not address or make allowances for expunction of individual offenses
stemming from an arrest.”); see also Ex parte N.B.J., 552 S.W.3d 376, 381-83
(Tex. App.—Houston [14th Dist.] 2018, no pet.) (discussing state of the law prior
to T.S.N.).4

In T.S.N., the Texas Supreme Court rejected this notion that article 55.01 as
a whole was arrest-based, stating: “To the extent the courts of appeals have stated
that article 55.01 is entirely arrest-based, we disagree. Article 55.01 is neither
entirely arrest-based nor offense-based.” 547 S.W.3d at 623. The facts before the
court in T.S.N. implicated only subsection (a)(1) of article 55.01, the subsection
concerning expunction after an acquittal. Id. at 618-19. The court stated that for
purposes of that subsection, expunction was permissible for an individual offense
stemming from an arrest even if records for other offenses stemming from that
arrest were not eligible for expunction, so long as the offenses were unrelated. Id.
at 621, 623.5 The court expressly did not take a stand on whether subsection (a)(2)
of article 55.01, the subsection under which T.R.W. seeks expunction, is arrest-
based, offense-based, or some combination thereof. Id. at 623 (“The expunction
scheme under subsection (a)(2) is not at issue, and we express no opinion about
it.”). As the court noted, the prerequisites for expunction under subsections (a)(1)

4
These courts typically based their reading of the statute on two rationales. First, the
opening sentence of article 55.01(a) emphasizes the arrest and not particular offenses: “A person
who has been placed under . . . arrest . . . is entitled to have all records and files relating to the
arrest expunged if . . . .” Second, it is often said that the purpose of the expunction statute is to
allow the record of a wrongful arrest to be expunged. See, e.g., Travis Cty. Dist. Atty. v. M.M.,
354 S.W.3d 920, 928 (Tex. App.—Austin 2011, no pet.) (en banc) (“[A]llowing 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 . . . .”).
5
In T.S.N., the petitioner was arrested for one offense, but during the arrest process, a
separate warrant for multiple other offenses occurring on a different day was also executed. 547
S.W.3d at 618. As the court stated, “Here, a single arrest occurred for multiple unrelated
offenses.” Id. at 621.

9
and (a)(2) “are quite different.” Id. at 622.6

In N.B.J., one of the first post-T.S.N. expunction cases, we addressed the
question of whether subsection 55.01(a)(2)(B)—concerning expunction where the
statute of limitations for an offense had run—allowed for the expunction of records
pertaining to an individual offense when an arrest resulted in multiple charged
offenses. N.B.J., 552 S.W.3d at 383-84. We concluded, based on our reading of the
statutory language and T.S.N., that subsection (a)(2)(B) permitted expunction of
“records stemming from each individual offense or charge, at least when the
charges are unrelated.” Id. at 384 (emphasis added).7 Then, in Ex parte Brown, we
held that the petitioner was disqualified from receiving an expunction pursuant to
subsection 55.01(a)(2)(A) because the charges resulting from the petitioner’s arrest
were related and he was convicted of a felony for one of the offenses. 2018 WL
3977174, at *2-3 & n.4.8

However, in In re Hoover, the Fifth Court of Appeals cited two Third Court
cases in concluding that even post-T.S.N., “article 55.01(a)(2) ‘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(a)(2).”

6
Interestingly, the court discussed in some detail and even quoted an earlier Third Court
opinion in which the Third Court declined to opine regarding whether under article 55.01(a)(2),
“a petitioner may expunge records related to a single charge arising from a multi-charge arrest
when the charge for which expungement is sought is wholly unrelated to any final conviction
arising from the arrest.” T.S.N., 547 S.W.3d at 623 (quoting G.B.E., 459 S.W.3d at 629 n.3)
(emphasis in G.B.E.).
7
Similar to the situation in T.S.N., the petitioner in N.B.J. was arrested for one charge,
and while in jail, an outstanding warrant for an earlier offense was executed. N.B.J., 552 S.W.3d
at 378-79. We concluded on that basis that the offenses were unrelated. Id. at 381 n.6.
8
Although the record regarding the underlying offenses was sparse in Brown, we noted
that the aggravated robbery and capital murder offenses allegedly occurred on the same day and
that the capital murder charge was based on an underlying felony offense of aggravated robbery.
2018 WL 3977174, at *1-3 & n.4.

10
No. 05-16-01363-CV, 2018 WL2926143, at *2-3 (Tex. App.—Dallas June 7,
2018, pet. filed) (mem. op.) (quoting T.H., 2016 WL 5874869, at *4, and also
citing G.B.E., 459 S.W.3d 622).9

The Third Court has not stated a position regarding section 55.01(a)(2) post-
T.S.N., so we do not have its direct guidance in this transfer case. We conclude,
however, that regardless of whether we apply the pre-T.S.N., arrest-based, Third
Court precedent (as the Fifth Court has) or apply the analysis we adopted in N.B.J.
and look to whether the charges in question were related in determining whether an
individual charge was subject to expunction, the outcome would be the same in
this case. The record does not contain legally sufficient evidence to support
expunction under either analysis.

Analysis

DPS’s two issues are closely connected. In its first issue, DPS argues that the
trial court misinterpreted the expunction statute in granting expunction in light of
the fact T.R.W. was placed on community supervision for one of the offenses
stemming from her January 2, 2012 arrest. In its second issue, DPS argues that the
evidence was legally insufficient to support the trial court’s order because T.R.W.
failed to present evidence rebutting DPS’s assertion that T.R.W. was placed on
community supervision.10 Although the trial court’s interpretation of the statute is

9
In Hoover, the petitioner had been charged with four counts of making false statements
to obtain property or credit, but pursuant to a plea agreement, three of the charges were
dismissed in exchange for the petitioner pleading guilty to the fourth charge and serving deferred
adjudication community service. 2018 WL2926143, at *1. The Fifth Court affirmed the trial
court’s denial of expunction of records relating to the three dismissed charges. Id.
10
At two points in its brief, DPS asserted that T.R.W. failed to present any evidence at
the expunction hearing, but this is incorrect. At the hearing, T.R.W.’s counsel offered, and the
court admitted, several exhibits into evidence, including the order granting T.R.W.’s petition for
nondisclosure relating to her possession charge and the order assigning T.R.W. to the PTI
program for her theft charge. Except for the matter of community supervision, DPS does not
argue that the evidence failed to establish any other specific requirements for expunction.
11
not entirely clear, it is clear that the evidence was legally insufficient to support the
expunction of records and files relating to the theft charge. Accordingly, as
discussed below, we will sustain DPS’s second issue.

Under our post-T.S.N. precedent, T.R.W. failed to present evidence that
the January 2, 2012 charged offenses are unrelated.
As discussed above, in N.B.J., we concluded that the Texas Supreme Court’s
reasoning in T.S.N. was also applicable to expunction under section 55.011(a)(2).
552 S.W.3d at 383-84. Accordingly, under our precedent, when an arrest resulted
in multiple charges, a petitioner may have the records of an individual arrest
expunged if the charges were unrelated. Id.

In the present case, however, T.R.W. did not present any evidence indicating
that the two charged offenses emanating from her January 2, 2012 arrest were
unrelated. See id.; see also G.B.E., 459 S.W.3d at 625 (noting that a petitioner
bears the burden of proving that all of the requirements for expunction have been
met). As mentioned, there is little in the record regarding the offenses other than
the fact that both allegedly occurred on the same day as the arrest and T.R.W. was
assigned to PTI for the theft charge in part because she had entered a plea in two
other cases. Those two other cases would presumably have included the possession
charge on which T.R.W. pleaded no contest. T.R.W. does not point to any
indication in the record that the theft and possession charges were unrelated.
Without evidence that the theft and possession charges were unrelated, T.R.W. did
not establish that she was entitled to expunction even under the more relaxed
standard of N.B.J. See Brown, 2018 WL 3977174, at *1-3 & n.4 (concluding
aggravated robbery and capital murder offenses were related when evidence
indicated they occurred on the same day and the capital murder charge was based
on an underlying felony offense of aggravated robbery); N.B.J., 552 S.W.3d at 381

12
n.6 (concluding offenses were unrelated when petitioner was arrested for one
offense, and while in jail, an outstanding warrant for an earlier offense was
executed); see also T.S.N., 547 S.W.3d at 618-19 (holding expunction under article
55.01(a)(1) is permissible for an individual offense when an arrest results in
multiple charges only if the charged offenses are unrelated); G.B.E., 459 S.W.3d at
629 & n.3 (establishing offenses as related when pursuant to plea bargain one
charge was dismissed in exchange for entering a plea to the other charge).

Under existing Third Court precedent, T.R.W. failed to present
evidence that she did not receive community supervision.
As also discussed above, under existing Third Court precedent, a petitioner
is not entitled to expunction if she received community supervision for any charge
stemming from an arrest. See, e.g., A.M., 2018 WL 1177601, at *2-4.11 Here,
T.R.W. does not dispute that she served community supervision for the possession
charge stemming from the January 2, 2012 arrest, and the record contains ample
documentation to establish that as a fact.12

T.R.W. instead raises two arguments as to why the trial court could not
consider the fact that she received community supervision for one of the charges
stemming from the January 2 arrest in determining her entitlement to expunction of
the theft offense emanating from that arrest. First, T.R.W. contends that because
the records relating to the possession charge were subject to a nondisclosure order,
DPS could not rely on the community supervision for the possession charge to
contest the expunction of the theft charge. Second, T.R.W. argues that DPS (as a

11
It is unclear how the Third Court would rule after the Supreme Court’s decision in
T.S.N., because it has not yet addressed the issue. While we call it “Third Court precedent,” all
courts must review their precedent in light of a new Supreme Court opinion on point.
12
As one example, T.R.W. introduced the nondisclosure order into evidence, which
states that she “was placed on 180-day deferred adjudication community supervision” for the
possession charge allegedly occurring on January 2, 2012.

13
representative of the State) was estopped from contesting expunction of the theft
charge because the PTI documents stated T.R.W. could get records relating to the
theft charge expunged upon successful completion of the terms of the PTI. We
discuss and reject each argument in turn.

The nondisclosure order. According to T.R.W., the nondisclosure order
that she obtained regarding the possession charge prevented DPS from using the
fact that she received community supervision for that charge to keep her from
obtaining expunction of the records of her theft offense. See generally Tex. Gov’t
Code §§ 411.071–.0775 (governing issuance of nondisclosure orders). More
specifically, T.R.W. argues that due to the nondisclosure order, DPS could not use
evidence regarding her community supervision sentence as evidence in an
expunction proceeding, which is a civil matter. In support, she cites Government
Code section 552.021, which generally permits a person who has been granted a
nondisclosure order to deny the occurrence of the criminal proceeding subject to
the order unless the information is being used against the person in another
criminal proceeding. Id. § 552.021(b).

T.R.W’s argument, however, ignores the fact that it is her burden to
affirmatively prove that all of the statutory requirements for expunction have been
met. See, e.g., G.B.E., 459 S.W.3d at 625. Moreover, as discussed in detail above,
in drafting the expunction statute, the legislature drew the line at not permitting
expunction if a person received community supervision. See Tex. Code Crim. Proc.
art. 55.01(a)(2). Nothing in the nondisclosure rules suggests an intention to amend
the line drawn within the expunction statute. See Tex. Gov’t Code §§ 411.071–
.0775. A nondisclosure order generally permits the recipient to avoid public
disclosure of criminal records subject to the order. See, e.g., id. §§411.0755–.0765.
Nothing in the statute entitles a person to expunction when the person does not

14
actually meet the requirements of the expunction statute. See Tex. Dep’t of Pub.
Safety v. Ryerson, No. 04-16-00276-CV, 2016 WL 7445063, at *3 (Tex. App.—
San Antonio Dec. 28, 2016, pet. denied) (explaining key differences between
expunction orders and nondisclosure orders and rejecting argument that it was
inconsistent to prohibit expunction of an offense while permitting a nondisclosure
order regarding the offense). Consequently, we reject T.R.W.’s argument that
because she received a nondisclosure order pertaining to the possession charge, she
was entitled to expunge records pertaining to her theft charge.13

Estoppel. Next, T.R.W. argues that DPS is estopped from contesting
expungement because the PTI documents stated she could obtain expunction upon
successful completion of the PTI. Along similar lines, T.R.W. also points out that
an assistant district attorney signed the expunction order as “Approved” and
another assistant district attorney stated at the hearing that his office was not
contesting T.R.W.’s entitlement to expunction. T.R.W.’s arguments, however, rely
on the twin fallacies that either the district attorney and DPS should be considered
the same entity, as both are divisions of the State, or that the district attorney
represented DPS for purposes of the expunction proceedings.

Under the expunction statute, each entity named in the petition as having
documents to be expunged is entitled to represent itself and to appeal the trial
court’s ruling. See, e.g., J.W.M., 2018 WL 6519696, at *2 (citing Tex. Code Crim.

13
DPS argues that even under the nondisclosure statute, it was entitled to use the fact
T.R.W. received community supervision for the possession charge in contesting expunction of
records pertaining to the theft charge. Specifically, DPS points out that under Government Code
section 411.0765, it was permitted to disclose the community supervision for “criminal
justice . . . purposes,” and it argues that contesting expunction is a criminal justice purpose. We
conclude, however, that the analysis here does not need to go this far because, as explained in the
text above, it was T.R.W.’s burden to establish she met the requirements of the expunction
statute and that statute does not permit expunction when the petitioner received community
supervision.

15
Proc. art. 55.02, §§ 2(c-1), 3(a) and Tex. Dep’t of Pub. Safety v. J.B.R., 510 S.W.3d
610, 616 (Tex. App.—El Paso 2016, no pet.)). In other words, “in expunction
proceedings, the district attorney and [DPS] are separate entities and not agents of
the same entity, the State.” Ex parte Harrison, 52 S.W.3d 901, 902 (Tex. App.—
Eastland 2001, no pet.); accord Tex. Dep’t of Pub. Safety v. Woods, 68 S.W.3d
179, 183 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Consequently, any
promise by the district attorney’s office in a plea bargain with T.R.W. would not
estop DPS from contesting T.R.W.’s entitlement to expunction. See Woods, 68
S.W.3d at 183-84 (holding plea agreement with district attorney did not estop DPS
from contesting expunction); Harrison, 52 S.W.3d at 902 (same); Tex. Dep’t. of
Pub. Safety v. Katopodis, 886 S.W.2d 455, 458 (Tex. App.—Houston [1st Dist.]
1994, no writ) (same).

Although a district attorney can represent the interests of other entities in an
expunction proceeding, nothing in the record suggests that that occurred here. To
the contrary, DPS filed its own answer, which was brought to the court’s attention
during the hearing and was at odds with the district attorney’s posture in the case.
See, e.g., J.W.M., 2018 WL 6519696, at *2 (holding no evidence supported
contention that DPS was represented by county attorney even though county
attorney called court’s attention to DPS’s answer); Tex. Dep’t of Pub. Safety v.
J.W.D., No. 03-14-00101-CV, 2014 WL 7464229, at *1 (Tex. App.—Austin Dec.
31, 2014, pet. denied) (mem. op.) (holding assistant district attorney who appeared
at hearing did not represent DPS); cf. Scaife v. State, No. 03-14-00274-CV, 2015
WL 3542883, at *2 (Tex. App.—Austin June 3, 2015, no pet.) (mem. op.) (holding
assistant district attorney represented DPS at hearing based on fact he informed the
court that he would be representing his office as well as DPS because DPS had
asked him to appear on its behalf and nothing in the record contradicted the

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assertion).14 Because the district attorney’s office did not represent DPS, any
actions or statements by an assistant district attorney appearing to concede or agree
to T.R.W.’s expunction request does not prevent DPS from contesting expunction
on appeal.15

Conclusion

Because the record does not contain legally sufficient evidence to support
the trial court’s expunction order, we sustain DPS’s second issue. Accordingly, we
modify the trial court’s expunction order to remove the language ordering
expunction of records and files pertaining to T.R.W.’s January 2, 2012 theft
charge. We affirm the order as modified. See Tex. R. App. P. 43.2(b).

/s/ Frances Bourliot
Justice

Panel consists of Justices Christopher, Bourliot, and Spain.

14
The assistant district attorney who appeared at the hearing in the present case
specifically stated that he was “representing the Hays County Criminal District Attorney Office.”
15
To the extent T.R.W. suggests that the assistant district attorneys’ actions constituted
evidence that T.R.W. had fulfilled the statutory requirements and was therefore entitled to
expunction, we disagree. The assistant district attorneys made no representation to the court
regarding whether T.R.W. fulfilled the requirements. See Ex parte Read, No. 07-00-0535-CV,
2001 WL 1111496, at *2 (Tex. App.—Amarillo Sept. 21, 2001, no pet.) (mem. op.) (holding that
district attorney’s agreement not to contest expunction was no evidence that the statutory
requirements had been met).
We further note that T.R.W. has not suggested in the trial court or on appeal that she has
met the requirements for discretionary expunction pursuant to Code of Criminal Procedure
article 55.01(b)(2). Tex. Code Crim. Proc. art. 55.01(b)(2); see also A.M., 2018 WL 1177601, at
*2 (rejecting discretionary expunction claim because it was not pleaded and further rejecting
notion that assistant district attorney’s signing proposed order as “Agreed” constituted a
recommendation).

17