Opinion issued December 22, 2020
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00079-CV ——————————— HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE, Appellant V. C.D.F., Appellee
On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2016-28262
MEMORANDUM OPINION
Appellant, the Harris County District Attorney’s Office (“HCDA”),
challenges the trial court’s order granting the petition for expunction of appellee,
C.D.F., which expunged all records of C.D.F.’s June 21, 1996 arrest for the misdemeanor offense of driving while intoxicated (“DWI”).1 In its sole issue,
HCDA contends that the trial court erred in granting the petition for expunction.
We reverse and render.
Background
In May 2016, C.D.F. filed a petition for expunction alleging that on June 21,
1996, he was arrested and charged with the misdemeanor offense of DWI. The DWI
charge was later dismissed. C.D.F. requested expunction2 of all records relating to
the dismissed DWI charge because (1) he had been released, (2) the DWI charge did
not result in a final conviction, (3) the DWI charge was no longer pending, (4) there
was no court-ordered community supervision under Texas Code of Criminal
Procedure article 42.12 related to the DWI charge, and (5) prosecution of the DWI
charge was no longer possible because the statute of limitations period had expired.
HCDA answered, generally denying the allegations in C.D.F.’s petition for
expunction.
After a hearing,3 the trial court granted C.D.F.’s petition, expunging all
records of C.D.F.’s June 21, 1996 arrest for the misdemeanor offense of DWI.
1 See TEX. PENAL CODE ANN. § 49.04. 2 See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2)(B). 3 We do not have a reporter’s record from this hearing.
2 HCDA moved for a new trial, arguing that the trial court erred in granting the
petition for expunction because (1) on June 21, 1996, C.D.F. was charged with the
misdemeanor offense of DWI and the misdemeanor offense of resisting arrest,
(2) both charges arose out of a single criminal episode, (3) C.D.F. was convicted of
the misdemeanor offense of resisting arrest and his punishment was assessed at
confinement for “180 days probated for one year and a $400 fine,” and (4) HCDA
only moved to dismiss the charge for the misdemeanor offense of DWI because
C.D.F. had been “convicted [of the misdemeanor offense of resisting arrest] in [the]
[]other case.” According to HCDA, because C.D.F. was convicted of the
misdemeanor offense of resisting arrest, which arose from the same criminal episode
and the same arrest as the June 21, 1996 arrest for the misdemeanor offense of DWI,
C.D.F. was not entitled to expunction of all records relating to the dismissed DWI
charge.
HCDA attached to its motion for new trial, copies of: (1) the Houston Police
Department (“HPD”) Incident Report relating to C.D.F’s June 21, 1996 arrest,
(2) the Harris County Justice Information Management System D.A. Intake
Management Summary related to C.D.F.’s 1996 misdemeanor offenses of DWI and
resisting arrest, (3) a motion to dismiss filed by HCDA and an order granting the
motion to dismiss related to the case against C.D.F. for the misdemeanor offense of
DWI, (4) the September 23, 1996 judgment convicting C.D.F. of the misdemeanor
3 offense of resisting arrest, and (5) the HPD “Criminal Records Arrest Dispo.” related
to the charges against C.D.F. for the misdemeanor offenses of DWI and resisting
arrest.4
The HPD Incident Report related to C.D.F’s June 21, 1996 arrest states that
C.D.F., while driving a car, passed a law enforcement officer’s patrol car at a high
rate of speed, which prompted the officer to pursue C.D.F.’s car. After C.D.F.’s car
stopped, the officer approached the driver’s side of the car. He noticed that C.D.F.
appeared intoxicated; C.D.F. had a blank or confused stare, glassy eyes, and slurred
speech. C.D.F. admitted to drinking alcohol, and the officer asked C.D.F. to step
out of the car to perform field sobriety tests. After completing the testing, the officer
informed C.D.F. that he was under arrest, handcuffed him, and escorted him to the
rear of the officer’s patrol car. C.D.F. then refused to get into the patrol car and did
not respond to the officer’s verbal commands. The officer pushed C.D.F. into the
back seat of the patrol car and took hold of C.D.F.’s feet to restrain him. C.D.F.
responded by thrashing about, “striking the officer several times in both [his] shins[]
and knee area.” With the assistance of another law enforcement officer, the officer
was finally able to subdue C.D.F. and secure him in the patrol car.
4 Copies of these documents were admitted into evidence at the hearing on HCDA’s motion for new trial.
4 The September 23, 1996 judgment of conviction states that C.D.F. pleaded
nolo contendere5 to the misdemeanor offense of resisting arrest and the trial court
assessed his punishment at confinement for 180 days, probated for one year, and a
$400 fine.
The September 1996 motion to dismiss filed by HCDA relates to the charge
against C.D.F. for the misdemeanor offense of DWI and seeks dismissal of the case
against C.D.F. because he “was convicted [of the misdemeanor offense of resisting
arrest] in [the] []other case.” The trial court granted HCDA’s motion to dismiss.
After a hearing, the trial court denied HCDA’s motion for new trial.
Standard of Review
We review a trial court’s ruling on a petition for expunction for an abuse of
discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). Under this standard,
we review the trial court’s legal determinations de novo, recognizing that the trial
court has no discretion in deciding what the law is or in applying it to the facts. Id.
In conducting our review, though, we may not substitute our judgment for that of the
trial court in resolving factual issues committed to its discretion. In re A.G., 388
S.W.3d 759, 761 (Tex. App.—El Paso 2012, no pet.) (holding trial court abuses its
5 See Odom v. State, 962 S.W.2d 117, 119 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d) (pleading “nolo contendere” is a plea of “no contest” (internal quotations omitted)).
5 discretion if it acts arbitrarily or unreasonably without reference to guiding rules and
legal principles).
When, as here, the trial court’s ruling on the petition for expunction turns on
a question of law because it requires statutory interpretation, the ruling is subject to
de novo review. See T.S.N., 547 S.W.3d at 620. “Statutes are to be analyzed as a
cohesive, contextual whole with the goal of effectuating the Legislature’s intent and
employing the presumption that the Legislature intended a just and reasonable
result.” Id. (internal quotations omitted). “Further, our analysis is limited to
application of the plain meaning of the statutory language unless a different meaning
is apparent from the context or the plain meaning leads to absurd or nonsensical
results.” Id. at 621 (internal quotations omitted). “We also operate under the
presumption that the [L]egislature chooses a statute’s language with care, deciding
to omit or include words purposefully.” Ex parte J.A.B., 592 S.W.3d 165, 169 (Tex.
App.—San Antonio 2019, no pet.) (internal quotations omitted).
“Expunction is not a right; it is a statutory privilege.” In re State Bar of Tex.,
440 S.W.3d 621, 624 (Tex. 2014); In re Expunction of M.T., 495 S.W.3d 617, 620
(Tex. App.—El Paso 2016, no pet.). Because expunction is a statutory privilege and
not a constitutional or common law right, courts must enforce the statutory
requirements and may not add equitable or practical exceptions. Ex parte E.H., 602
S.W.3d 486, 489 (Tex. 2020); see also In re Expunction of M.T., 495 S.W.3d at 620
6 (“An expunction cannot be granted unless the statutory requirements are satisfied.”).
Although codified in the Texas Code of Criminal Procedure, an expunction
proceeding is civil in nature, and an expunction may not be granted unless the
petitioner satisfies the burden of proving that all statutory requirements have been
met. In re Expunction of M.T., 495 S.W.3d at 620; see also T.S.N., 547 S.W.3d at
620; Ex parte J.A.B., 592 S.W.3d at 168.
Eligibility for Expunction
In its sole issue, HCDA argues that the trial court erred in granting C.D.F.’s
petition for expunction because “the arrest-based approach to multi-charge arrests
stemming from the same criminal episode” should apply to this case and the
“arrest[-]based approach holds that a person is not entitled to expunction for an arrest
record if any charge stemming from that arrest resulted in a final conviction.”
HCDA asserts that C.D.F.’s June 21, 1996 arrest resulted in a final conviction for
the misdemeanor offense of resisting arrest, which stemmed from the same criminal
episode and arrest as the dismissed DWI charge for which C.D.F. seeks expunction.
The remedy of expunction allows a person who has been arrested for the
commission of an offense to have all records and files relating to the arrest removed
from the State’s records. See TEX. CODE CRIM. PROC. ANN. arts. 55.01–.06; Collin
Cty. Dist. Atty’s Office v. Fourrier, 453 S.W.3d 536, 538 (Tex. App.—Dallas 2014,
no pet.). Texas Code of Criminal Procedure article 55.01 sets out the statutory
7 requirements for expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.01; In re
M.T.R., 606 S.W.3d 288, 291 (Tex. App.—Houston [1st Dist.] 2020, no pet.). The
portion of the statute that C.D.F. relied on in his petition for expunction 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:
(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).
Article 55.01 begins with language that centers on a person’s arrest. See TEX.
CODE CRIM. PROC. ANN. § 55.01(a) (declaring “person who has been placed
under . . . arrest for commission of either a felony or misdemeanor is entitled to have
all records and files relating to the arrest” expunged on satisfaction of enumerated
conditions (emphasis added)). The Texas Supreme Court, though, has explained that
the expunction statute is “neither entirely arrest-based nor offense-based.” T.S.N.,
547 S.W.3d at 623. In T.S.N., the Supreme Court analyzed the petitioner’s eligibility
for expunction under Texas Code of Criminal Procedure article 55.01(a)(1), which 8 is not at issue here. See id. at 619, 623. In that case, the petitioner had been arrested
on the same day on two unrelated charges, one for the misdemeanor offense of theft
and one for the felony offense of aggravated assault. Id. at 618. The petitioner
pleaded guilty to the misdemeanor offense of theft, but she pleaded not guilty to the
felony offense of aggravated assault. Id. After a jury trial on the charge for the
felony offense of aggravated assault, the petitioner was acquitted of that charge. Id.
Following her acquittal, she filed a petition for expunction, seeking expungement of
the records relating to the aggravated-assault charge. Id. at 618–19.
Rejecting a categorical arrest-based approach to determining a petitioner’s
eligibility for expunction under Texas Code of Criminal Procedure article
55.01(a)(1), the Texas Supreme Court concluded that the petitioner was entitled to
expunction as to the aggravated-assault charge of which she was acquitted. Id. at
624. However, the court expressly declined to weigh in on whether the same
approach would apply to a petitioner seeking expunction under article 55.01(a)(2).
See id. at 623 (“The expunction scheme under []article (a)(2) is not at issue, and we
express no opinion about it.”). Citing article 55.01(a) generally, though, the court
observed that,
where an arrest is made pursuant to a charge or charges for multiple related offenses as part of a criminal episode, the statute . . . clearly does not entitle the person to expunction of any files and records relating to the episode if the person . . . is convicted of one of the offenses . . . .
9 Id. (emphasis omitted).
Since the Texas Supreme Court’s decision in T.S.N., the Fourteenth Court of
Appeals has considered whether Texas Code of Criminal Procedure article
55.01(a)(2)(B) permits the expunction of records pertaining to an individual offense
when the arrest of the petitioner involved multiple charged offenses. See Tex. Dep’t
of Public Safety v. T.R.W., No. 14-17-00572-CV, 2019 WL 3724707, at *2 (Tex.
App.—Houston [14th Dist.] Aug. 8, 2019, no pet.) (mem. op.); Ex parte N.B.J., 552
S.W.3d 376, 383–84 (Tex. App.—Houston [14th Dist.] 2018, no pet.).
In Ex parte N.B.J., the petitioner was arrested on the same day on two
unrelated charges. 552 S.W.3d at 378–79. The petitioner pleaded guilty to the initial
offense and was convicted. See id. The State then dismissed the case related to the
second charged offense—the records of which the petitioner later sought to have
expunged under Texas Code of Criminal Procedure article 55.01(a)(2)(B). Id. The
trial court granted the petitioner’s petition for expunction concluding that he was
entitled to expunction of the arrest records related to the second charge under article
55.01(a)(2)(B). Id. at 379.
On appeal, the Fourteenth Court of Appeals held that the Texas Supreme
Court’s treatment of unrelated charges under article 55.01(a)(1) in T.S.N. also
applied to an expunction being sought under article 55.01(a)(2). Id. at 383–84. And
it affirmed the trial court’s order granting expunction, concluding that article
10 55.01(a)(2)(B) permitted expunction of “records stemming from each individual
offense or charge, at least when the charges are unrelated.” 552 S.W.3d at 384.
In contrast, in T.R.W., the petitioner was arrested on January 2, 2012 and
charged with the misdemeanor offense of theft and the misdemeanor offense of
possession of a controlled substance. 2019 WL 3724707, at *1. Both of the offenses
were alleged to have occurred on January 2, 2012. Id. The petitioner and the State
entered a plea agreement under which the petitioner completed a pre-trial
intervention program related to the misdemeanor offense of theft and pleaded no
contest to the charge for the misdemeanor offense of possession of a controlled
substance. Id. The trial court, pursuant to the plea agreement, then placed the
petitioner on community supervision for a period of two years related to the
misdemeanor offense of possession of a controlled substance. Id. After the
petitioner successfully completed the pre-trial intervention program, the trial court
dismissed the case against the petitioner for the misdemeanor offense of theft. Id.
In 2016, the petitioner filed a petition for expunction seeking expunction of the
records related to her January 2, 2012 arrest for the misdemeanor offense of theft.
Id. The trial court granted the petition. Id. at *2.
On appeal, the Fourteenth Court of Appeals noted that, unlike the petitioner
in Ex parte N.B.J., the petitioner in T.R.W. “did not present any evidence indicating
that the two charged offenses emanating from her January 2, 2012 arrest were
11 unrelated.” Id. at *6. Further, the petitioner did “not dispute that she served
community supervision for the possession charge stemming from the January 2,
2012 arrest, and the record contain[ed] ample documentation to establish that as a
fact.” Id. at *7. Because the record did not show that the related charge—the charge
for the misdemeanor offense of possession of a controlled substance which stemmed
from the same January 2, 2012 arrest—did not result in a conviction, the court
concluded that the petitioner did not establish, under Texas Code of Criminal
Procedure article 55.01(a)(2)(B), that she was entitled to expunction of the records
related to her January 2, 2012 arrest for the misdemeanor offense of theft. Id. at *9.
In In re Expunction,6 this Court addressed whether “an expunction applie[d]
to an entire arrest[] [and] not to individual charges resulting from an arrest,” when
both of the petitioner’s “felony and misdemeanor charges resulted from the same
arrest.” 465 S.W.3d 283, 286 (Tex. App.—Houston [1st Dist.] 2015, no pet.),
overruled on other grounds by T.S.N., 547 S.W.3d at 622. The petitioner in In re
Expunction was arrested in October 2011 for the felony offense of attempted
indecency with a child by sexual contact. 465 S.W.3d at 285. A month later, he
6 This Court’s decision predates the Texas Supreme Court’s decision in State v. T.S.N., 547 S.W.3d 617 (Tex. 2018), and the Fourteenth Court of Appeals’s decisions in Texas Department of Public Safety v. T.R.W., No. 14-17-00572-CV, 2019 WL 3724707 (Tex. App.—Houston [14th Dist.] Aug. 8, 2019, no pet.) (mem. op.), and Ex parte N.B.J., 552 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2018, no pet.), but we reached the same result as our sister appellate court.
12 pleaded nolo contendere to the misdemeanor offense of assault in exchange for the
dismissal of the case against him for the felony offense of attempted indecency with
a child by sexual contact. Id. at 285–86. After the felony
attempted-indecency-with-a-child charge against the petitioner was dismissed, he
filed a petition for expunction seeking expunction of all records related to his arrest
for the felony offense of attempted indecency with a child by sexual contact. Id.
As we noted in our opinion, the record in In re Expunction showed that the
petitioner’s second charge for the misdemeanor offense of assault was related to his
October 2011 arrest for the felony offense of attempted indecency with a child by
sexual contact and resulted in a conviction pursuant to a plea agreement with the
State. Id. at 291. At a hearing on the petition for expunction, the petitioner testified
that the State made “an offer that [it] would refile an assault charge and place [him]
on one-year deferred . . . [a]nd dismiss the sexual assault allegations [against him].”
Id. (internal quotations omitted). The petitioner thus “admitted that he completed a
course of deferred adjudication in connection with the assault charge,” and his plea
of nolo contendere to the misdemeanor offense of assault amounted to an admission
that “his arrest was not wrongful and . . . the felony charge [for the offense of
attempted indecency with a child by sexual contact] was not dismissed due to false
information, mistake, or lack of probable cause,” making him ineligible for
13 expunction under Texas Code of Criminal Procedure article 55.01(a)(2)(A). Id. at
292–93.
This Court also concluded that the petitioner was ineligible for expunction
under article 55.01(a)(2)(B) because no statute of limitations applied to the charge
for the offense of indecency with a child by sexual contact. Id. at 293. The opinion
does not address why this Court did not use the same arrest-based rationale under
article 55.01(a)(2)(B) as it did to conclude that the petitioner was not entitled to
expunction under article 55.01(a)(2)(A). But we reject C.D.F.’s assertion in this
appeal that In re Expunction requires us to focus solely on whether the statute of
limitations has run on the dismissed offense and ignore the result of any related
charge stemming from the same arrest in determining whether the trial court erred
in concluding that he is eligible for expunction under article 55.01(a)(2)(B).
The Legislature did not elucidate on the connection between the arrest-based
language at the beginning of Texas Code of Criminal Procedure article 55.01(a) and
the petitioner’s burden to prove that “prosecution of the person for the offense for
which the person was arrested is no longer possible because the [statute of]
limitations period has expired.” See TEX. CODE CRIM. PROC. ANN. art.
55.01(a)(2)(B). But both provisions begin with the reference to the “arrest” and
C.D.F’s approach to analyzing the statute would ignore that usage. Further, it would
run counter to T.S.N.’s general observation that Texas Code of Criminal Procedure
14 article 55.01(a) does not allow the expunction of related charges out of a single
criminal episode if a person is convicted of one of those offenses. See 547 S.W.3d
at 621. This observation counsels a more nuanced approach than either the
categorical arrest-based one urged by HCDA or the categorical offense-based one
urged by C.D.F.—that is, one that considers the arrest as a whole while recognizing
that when more than one offense is charged, all charges may not necessarily stem
from the same criminal episode.
Here, though, the two charges—the charge for the misdemeanor offense of
DWI and the charge for the misdemeanor offense of resisting arrest—against C.D.F.
stemmed from the same criminal episode and the same arrest. C.D.F. pleaded nolo
contendere to the misdemeanor offense of resisting arrest and was convicted and
sentenced for that offense. The motion to dismiss filed by HCDA relating to the
DWI charge against C.D.F. sought dismissal of the case against him because C.D.F.
had been convicted of the misdemeanor offense of resisting arrest “in another case
. . . .” The record thus precludes C.D.F. from showing that the June 21, 1996 arrest
that led to his DWI charge “has not resulted in a final conviction,” rendering him
ineligible for expunction under Texas Code of Criminal Procedure article
55.01(a)(2)(B). See T.R.W., 2019 WL 3724707, at *7, *9 (petitioner failed to
establish entitlement to expunction of theft charge under article 55.01(a)(2) where
evidence showed she was charged with both misdemeanor offense of theft and
15 misdemeanor offense of possession of a controlled substance on same date;
petitioner complied with plea agreement requiring completion of pre-trial
intervention on theft charge, entry of no-contest plea and community supervision as
to possession charge, resulting in dismissal of both charges); In re J.G., 588 S.W.3d
290, 291, 294 (Tex. App.—El Paso 2019, no pet.) (petitioner ineligible for
expunction where he pleaded guilty to one of three charges stemming from same
criminal episode and arrest; petitioner pleaded guilty to a reduced charge, State
dismissed remaining charges, and both dismissal forms noted reason for dismissal
as being petitioner’s conviction in another case); In re Expunction of J.O., 353
S.W.3d 291, 294 (Tex. App.—El Paso 2011, no pet.) (holding petitioner failed to
carry burden to establish that possession charge did not result in final conviction and
precluding expunction under article 55.01(a)(2)(B), where evidence showed she was
charged with possession of marijuana, less than two ounces, then pleaded guilty to
offense and was convicted of reduced charge of disorderly conduct).
We hold that the trial court erred in granting C.D.F.’s petition for expunction.
We sustain the State’s sole issue.
16 Conclusion
We reverse the trial court’s order of expunction and render judgment denying
C.D.F.’s petition for expunction.
Julie Countiss Justice
Panel consists of Justices Lloyd, Landau, and Countiss.