Ex parte K.R.K.

446 S.W.3d 540, 2014 Tex. App. LEXIS 9736, 2014 WL 4257901
CourtCourt of Appeals of Texas
DecidedAugust 29, 2014
DocketNo. 04-13-00470-CV
StatusPublished
Cited by16 cases

This text of 446 S.W.3d 540 (Ex parte K.R.K.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex parte K.R.K., 446 S.W.3d 540, 2014 Tex. App. LEXIS 9736, 2014 WL 4257901 (Tex. Ct. App. 2014).

Opinion

OPINION

Opinion by:

PATRICIA O. ALVAREZ, Justice.

On July 8, 2014, Appellant K.R.K. filed a motion for rehearing. We deny the motion for rehearing; however, we withdraw our opinion and judgment of June 25, 2014, and substitute this opinion in their stead.

Appellant K.R.K. appeals the trial court’s denial of his petition for expunction of all records and files relating to his arrest for felony possession of a controlled substance, less than one gram. On appeal, K.R.K. argues the trial court erred in interpreting the expunction statute to allow the destruction of records of individual offenses, as opposed to records of the arrest. Because K.R.K. failed to prove the statutory requirements of the Texas Code of Criminal Procedure article 55.01(a), we affirm the trial court’s order.

Factual BACKGROUND

On November 6, 2009, K.R.K. was arrested for felony possession of a controlled substance and misdemeanor possession of marijuana.1 K.R.K. subsequently entered a plea to the marijuana possession and the trial court ordered deferred adjudication [542]*542pursuant to a plea agreement with the Brazos County Attorney’s Office. According to the parties, the felony possession charge was “refused” by the Brazos County District Attorney’s Office, and subsequently dismissed. The statute of limitations for the felony possession expired on November 6, 2012.2

On March 28, 2013, K.R.K. filed a petition to expunge the felony possession charge. See Tex.Code Crim. Proc. Ann. art. 55.01(a)(2) (West Supp. 2012). The trial court denied the petition on May 7, 2013, and this appeal ensued.

Standard of Review

An appellate court reviews a trial court’s ruling on a petition for expunction under an abuse of discretion standard. Ex parte Green, 373 S.W.3d 111, 113 (Tex.App.-San Antonio 2012, no pet.). However, “[t]o the extent a ruling on expunction turns on a question 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.’ ” Id. (first alteration in original) (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992)). Statutory construction is a question of law. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008); City of San Antonio v. Caruso, 350 S.W.3d 247, 250 (Tex.App.-San Antonio 2011, pet. denied).

When construing statutory language, our primary objective is to “ascertain and give effect to the Legislature’s intent.” Caruso, 350 S.W.3d at 250; accord Hughes, 246 S.W.3d at 625; see also Tex. Gov’t Code Ann. § 312.005 (West 2013). “Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.” tex. Gov’t Code Ann. § 311.011(b); see Hughes, 246 S.W.3d at 625. “Otherwise, we construe the statute’s words according to their plain and common meaning, unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results.” Hughes, 246 S.W.3d at 625-26 (citations omitted); accord Caruso, 350 S.W.3d at 250. In construing the statutory language, we read the statute as a whole and interpret it so as to give effect to every part, and we presume the legislature intended a just and reasonable result. See Tex. Gov’t Code Ann. § 311.021; Caruso, 350 S.W.3d at 250. We may also consider legislative history regardless of whether the statute is ambiguous. Tex Gov’t Code Ann. § 311.023(3); Caruso, 350 S.W.3d at 250.

Expunction Statute

A. Arguments of the Parties

1. K.R.K. Argument

K.R.K. argues the current version of article 55.01(a) provides for the divisibility of offenses, within the same arrest event. See TexCode Crim. Proc. Ann. art. 55.01(a). K.R.K. points this court to the distinctions between the former version of article 55.01, effective prior to September 1, 2011, and the current version.

In the former version of article 55.01(a), section 55.01(a)(2)(B) provided:

(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[.]

Id. (emphasis added) 81st Leg., R.S., ch. 1103, § 17(b), eff. Sept. 1, 2009. The cor[543]*543responding language in the current version now reads:

(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:
(B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired.

Id. (emphasis added), as most recently amended in 2011. See Act of May 25, 2011, 82d Leg., R. S., ch. 894, § 1, 2011 Tex. Sess. Law Serv. 2274, 2274-75.

K.R.K. contends the legislature’s change of the word “any,” in the former version, to “the,” in the current version demonstrates an intent to make offenses arising from the same arrest event divisible for purposes of the expunction statute.

2. State’s Argument

The State contends the legislature intended an “arrest-based” approach, meaning the statute is intended to clear the record of those who are wrongfully arrested. See Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991); Harris Cnty. Dist. Attorney’s Office v. D.W.B., 860 S.W.2d 719, 721 (Tex.App.-Houston [1st Dist.] 1998, no writ.).

B. Texas Code of Criminal Procedure article 55.01

Although provided for in the Texas Code of Criminal Procedure, “[a]n expunction proceeding is civil rather than criminal in nature.” Ex parte Green, 873 S.W.3d at 113 (citing Tex. Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex.App.-Houston [14th Dist.] 2008, no pet.)). Expunction is a statutory privilege, not a constitutional or common-law right; therefore, the petitioner is not entitled to the expunction remedy unless he meets all the requirements set forth in article 55.01. See Ex parte Green, 373 S.W.3d at 113; T.C.R. v. Bell Cnty. Dist. Attorney’s Office, 305 S.W.3d 661, 663 (Tex.App.-Austin 2009, no pet.); J.H.J., 274 S.W.3d at 806.

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Bluebook (online)
446 S.W.3d 540, 2014 Tex. App. LEXIS 9736, 2014 WL 4257901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-krk-texapp-2014.