In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00231-CV ___________________________
EX PARTE E.A.
On Appeal from the 16th District Court Denton County, Texas Trial Court No. 22-6468-16
Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
I. Introduction
Appellant E.A. appeals from the trial court’s expunction order. In her sole
issue, Appellant argues that the trial court erred by denying her petition for
expunction under Article 55.01(a)(2)(B) of the Texas Code of Criminal Procedure. We
will reverse.
II. Background
In February 2013, over a decade ago, Appellant was arrested for the felony
offense of diversion of a controlled substance. See Tex. Health & Safety Code Ann.
§ 481.1285. The affidavit for the arrest warrant states that the offense occurred on or
about October 25, 2012. The record also contains an arrest-warrant affidavit for the
felony offense of money laundering over $100,000 and under $200,000 that also
occurred on or about October 25, 2012. See Tex. Penal Code Ann. § 34.02(e). But
Appellant was not initially arrested based on that affidavit; rather, she was indicted
sometime later for the money-laundering offense and was arrested after the
indictment.
Pursuant to plea negotiations, Appellant was placed on deferred adjudication
for the diversion offense, and the State dismissed the money-laundering offense. After
completing deferred adjudication, Appellant filed a petition to expunge the arrest
records of the money-laundering offense under Article 55.01(a)(2)(B) of the Texas
2 Code of Criminal Procedure. After a hearing, the trial court signed an order denying
Appellant’s petition for expunction. This appeal followed.
III. Discussion
Appellant argues in her sole issue that the trial court erred by denying her
expunction petition because she satisfied the requirements of Article 55.01(a)(2)(B).
A. Standard of Review
An expunction proceeding is a civil matter even though the expunction statute
appears in the Texas Code of Criminal Procedure. Ex parte Green, 373 S.W.3d 111,
113 (Tex. App.—San Antonio 2012, no pet.); see Tex. Code Crim. Proc. Ann. art.
55.01. A trial court’s expunction order is reviewed for abuse of discretion, but a
statute’s meaning is a question of law reviewed de novo. Ex parte R.P.G.P.,
623 S.W.3d 313, 317 (Tex. 2021).
B. Applicable Law
Article 55.01(a)(2)(B) 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 Chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that:
3 (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. Ann. art 55.01(a)(2)(B).
C. Analysis
The State’s position is that Appellant is not entitled to expunction because her
money-laundering arrest “arose out of the same arrest and criminal episode as her
charge for diversion of a controlled substance.”
In R.P.G.P., a case on which Appellant relies, the Texas Supreme Court
considered “whether an arrest involving multiple offenses is divisible for purposes of
expunging records under Article 55.01.” 623 S.W.3d at 314. R.P.G.P. was charged
with misdemeanor driving while intoxicated and misdemeanor possession. Id. at 315.
R.P.G.P. pleaded no contest to the possession charge and completed deferred
adjudication. Id. The DWI charge was dismissed after R.P.G.P. completed pretrial
intervention, after which R.P.G.P. filed a petition to expunge the DWI arrest records
under Article 55.01(a)(2)(A)(ii)(c). 1 Id. The trial court denied the petition, and the
court of appeals affirmed. Id.
1 Article 55.01(a)(2)(A) provides for expunction under a variety of circumstances that—unlike subsection (a)(2)(B)—do not turn on whether limitations have expired. Subarticle (a)(2)(A)(ii)(c), which was the basis of R.P.G.P.’s petition, provides for expunction if an indictment or information is later dismissed because the arrestee completed an authorized pretrial-intervention program. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A).
4 Reversing and holding that R.P.G.P. was entitled to expunction, the Court
noted that “[m]ost appellate courts have favored an ‘arrest-based’ construction . . .
that treats the offenses collectively over an ‘offense-based’ approach that considers
the offenses individually for expunction purposes.” Id. at 314. The Court concluded,
though, that Article 55.01(a)(2) is an offense-based expunction provision under which
“misdemeanor offenses are eligible for expunction on an individual basis,” thereby
rejecting the “all-or-nothing [arrest-based] approach.” Id. at 315, 318. The Court
explained that subarticle (a)(2) links an arrest to a single offense and that “[t]he use of
‘the’ in referring to ‘the charge’ and ‘the offense’ indicates the Legislature . . . intended
to tie an arrest to a single offense under Article 55.01(a)(2).” Id. at 322. Although the
Court held that “subarticles (a)(2) and (a)(2)(A)” are “offense-based provisions with
regard to misdemeanors but arrest-based with respect to felonies,” id. at 325, it did
not specifically address—or even mention—Article 55.01(a)(2)(B). The State argues
that R.P.G.P. is distinguishable because that case involved a misdemeanor offense and
was decided under Article 55.01(a)(2)(A), not (B).
But after R.P.G.P. was decided, our sister court in Houston used R.P.G.P.’s
reasoning in allowing a felony expunction under Article 55.01(a)(2)(B), thus rejecting
the substance of the State’s argument here. Ex parte R.J.F., 640 S.W.3d 365, 369–
70 (Tex. App.—Houston [14th Dist.] 2022, no pet.). In that case, the appellant was
arrested in 2007 for possession of a controlled substance (a state-jail felony) and
possession with intent to deliver drug paraphernalia (a misdemeanor). Id. at 366. The
5 appellant pleaded no contest to the misdemeanor charge, and the State dismissed the
felony charge because “[t]he Defendant was convicted in another case.” Id. After
limitations had run, the appellant petitioned to have the felony charge expunged under
Article 55.01(a)(2)(B)—a provision that the court pointed out is a “separate option for
seeking expunction, completely distinct from (a)(2)(A)” and to which (a)(2)(A)’s
strictures do not apply. Id. at 369 (cleaned up). Based on R.P.G.P. and statutory
analysis, the court held that Article 55.01(a)(2)(B) is also offense-based, not arrest-
based. Id. at 370.
“Because the language under (a)(2) is offense-based, see R.P.G.P., 623 S.W.3d at
322–23, an applicant qualifies for expunction of an offense under (a)(2)(B) ‘provided
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In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00231-CV ___________________________
EX PARTE E.A.
On Appeal from the 16th District Court Denton County, Texas Trial Court No. 22-6468-16
Before Kerr, Birdwell, and Bassel, JJ. Memorandum Opinion by Justice Kerr MEMORANDUM OPINION
I. Introduction
Appellant E.A. appeals from the trial court’s expunction order. In her sole
issue, Appellant argues that the trial court erred by denying her petition for
expunction under Article 55.01(a)(2)(B) of the Texas Code of Criminal Procedure. We
will reverse.
II. Background
In February 2013, over a decade ago, Appellant was arrested for the felony
offense of diversion of a controlled substance. See Tex. Health & Safety Code Ann.
§ 481.1285. The affidavit for the arrest warrant states that the offense occurred on or
about October 25, 2012. The record also contains an arrest-warrant affidavit for the
felony offense of money laundering over $100,000 and under $200,000 that also
occurred on or about October 25, 2012. See Tex. Penal Code Ann. § 34.02(e). But
Appellant was not initially arrested based on that affidavit; rather, she was indicted
sometime later for the money-laundering offense and was arrested after the
indictment.
Pursuant to plea negotiations, Appellant was placed on deferred adjudication
for the diversion offense, and the State dismissed the money-laundering offense. After
completing deferred adjudication, Appellant filed a petition to expunge the arrest
records of the money-laundering offense under Article 55.01(a)(2)(B) of the Texas
2 Code of Criminal Procedure. After a hearing, the trial court signed an order denying
Appellant’s petition for expunction. This appeal followed.
III. Discussion
Appellant argues in her sole issue that the trial court erred by denying her
expunction petition because she satisfied the requirements of Article 55.01(a)(2)(B).
A. Standard of Review
An expunction proceeding is a civil matter even though the expunction statute
appears in the Texas Code of Criminal Procedure. Ex parte Green, 373 S.W.3d 111,
113 (Tex. App.—San Antonio 2012, no pet.); see Tex. Code Crim. Proc. Ann. art.
55.01. A trial court’s expunction order is reviewed for abuse of discretion, but a
statute’s meaning is a question of law reviewed de novo. Ex parte R.P.G.P.,
623 S.W.3d 313, 317 (Tex. 2021).
B. Applicable Law
Article 55.01(a)(2)(B) 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 Chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that:
3 (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. Ann. art 55.01(a)(2)(B).
C. Analysis
The State’s position is that Appellant is not entitled to expunction because her
money-laundering arrest “arose out of the same arrest and criminal episode as her
charge for diversion of a controlled substance.”
In R.P.G.P., a case on which Appellant relies, the Texas Supreme Court
considered “whether an arrest involving multiple offenses is divisible for purposes of
expunging records under Article 55.01.” 623 S.W.3d at 314. R.P.G.P. was charged
with misdemeanor driving while intoxicated and misdemeanor possession. Id. at 315.
R.P.G.P. pleaded no contest to the possession charge and completed deferred
adjudication. Id. The DWI charge was dismissed after R.P.G.P. completed pretrial
intervention, after which R.P.G.P. filed a petition to expunge the DWI arrest records
under Article 55.01(a)(2)(A)(ii)(c). 1 Id. The trial court denied the petition, and the
court of appeals affirmed. Id.
1 Article 55.01(a)(2)(A) provides for expunction under a variety of circumstances that—unlike subsection (a)(2)(B)—do not turn on whether limitations have expired. Subarticle (a)(2)(A)(ii)(c), which was the basis of R.P.G.P.’s petition, provides for expunction if an indictment or information is later dismissed because the arrestee completed an authorized pretrial-intervention program. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A).
4 Reversing and holding that R.P.G.P. was entitled to expunction, the Court
noted that “[m]ost appellate courts have favored an ‘arrest-based’ construction . . .
that treats the offenses collectively over an ‘offense-based’ approach that considers
the offenses individually for expunction purposes.” Id. at 314. The Court concluded,
though, that Article 55.01(a)(2) is an offense-based expunction provision under which
“misdemeanor offenses are eligible for expunction on an individual basis,” thereby
rejecting the “all-or-nothing [arrest-based] approach.” Id. at 315, 318. The Court
explained that subarticle (a)(2) links an arrest to a single offense and that “[t]he use of
‘the’ in referring to ‘the charge’ and ‘the offense’ indicates the Legislature . . . intended
to tie an arrest to a single offense under Article 55.01(a)(2).” Id. at 322. Although the
Court held that “subarticles (a)(2) and (a)(2)(A)” are “offense-based provisions with
regard to misdemeanors but arrest-based with respect to felonies,” id. at 325, it did
not specifically address—or even mention—Article 55.01(a)(2)(B). The State argues
that R.P.G.P. is distinguishable because that case involved a misdemeanor offense and
was decided under Article 55.01(a)(2)(A), not (B).
But after R.P.G.P. was decided, our sister court in Houston used R.P.G.P.’s
reasoning in allowing a felony expunction under Article 55.01(a)(2)(B), thus rejecting
the substance of the State’s argument here. Ex parte R.J.F., 640 S.W.3d 365, 369–
70 (Tex. App.—Houston [14th Dist.] 2022, no pet.). In that case, the appellant was
arrested in 2007 for possession of a controlled substance (a state-jail felony) and
possession with intent to deliver drug paraphernalia (a misdemeanor). Id. at 366. The
5 appellant pleaded no contest to the misdemeanor charge, and the State dismissed the
felony charge because “[t]he Defendant was convicted in another case.” Id. After
limitations had run, the appellant petitioned to have the felony charge expunged under
Article 55.01(a)(2)(B)—a provision that the court pointed out is a “separate option for
seeking expunction, completely distinct from (a)(2)(A)” and to which (a)(2)(A)’s
strictures do not apply. Id. at 369 (cleaned up). Based on R.P.G.P. and statutory
analysis, the court held that Article 55.01(a)(2)(B) is also offense-based, not arrest-
based. Id. at 370.
“Because the language under (a)(2) is offense-based, see R.P.G.P., 623 S.W.3d at
322–23, an applicant qualifies for expunction of an offense under (a)(2)(B) ‘provided
that’ ‘prosecution of the person for the offense for which the person was arrested is
no longer possible because the limitations period has expired.’” Id. at 369; Tex. Code
Crim Proc. Ann. art. 55.01(a)(2)(B). The court concluded that “[l]ike the language
under (a)(2), the language under (a)(2)(B) ties an ‘arrest’ to a single offense.” R.J.F.,
640 S.W.3d at 369–70. The court also reasoned that subarticle (a)(2)(B) lacks any of
(a)(2)(A)’s language limiting expunction of felonies, nor does it track (a)(1)’s language
limiting expunction of charges arising out of the same criminal episode as a final
conviction. Id. at 370. The court thus held that the appellant was entitled to
expunction of the felony arrest records under (a)(2)(B). Id.
The State argues that the R.J.F. court got it wrong. But we agree with our sister
court’s reasoning. In R.P.G.P., the Court explicitly held that subarticle (a)(2) is an
6 offense-based expunction provision. 623 S.W.3d at 316. Although the R.P.G.P. court
held that Article 55.01(a)(2)(A) is offense-based for misdemeanors but arrest-based
for felonies, Article 55.01(a)(2)(B) does not distinguish between misdemeanors and
felonies. Compare Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A) with art.
55.01(a)(2)(B). We hold that Article 55.01(a)(2)(B) is an offense-based expunction
provision. R.J.F., 640 S.W.3d at 370.
Under Article 55.01(a)(2)(B), Appellant is entitled to expunction of her money-
laundering arrest records if the charge has not resulted in a final conviction, is no
longer pending, and there was no court-ordered community supervision for the
offense—provided that prosecution for the offense is no longer possible because
limitations has expired. Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B); see also id. art.
12.01(3)(E) (providing seven-year limitation period for money laundering). The record
shows that all these conditions have been met. We sustain Appellant’s sole issue.
IV. Conclusion
Because we sustain Appellant’s sole issue, we reverse the trial court’s order
denying Appellant’s petition for expunction of records related to her arrest for money
laundering and remand to the trial court to grant the petition.
/s/ Elizabeth Kerr Elizabeth Kerr Justice
Delivered: February 8, 2024