Response to Petition - Supreme Court of Texas by jianghongl

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									                                                            FILED
                                                            IN THE SUPREME COURT
                                                            OF TEXAS
                                                            12 May 23 P3:44
                                                             BLAKE. A. HAWTHORNE
                                                            CLERK
                      CASE NO. 12-0321


            IN THE SUPREME COURT OF TEXAS

_____________________________________________________________

                      EX PARTE M.R.L.
_____________________________________________________________

         ON REVIEW FROM THE COURT OF APPEALS
            FOR THE TENTH DISTRICT OF TEXAS
                      NO. 10-11-00275-CV
_____________________________________________________________

            RESPONSE TO PETITION FOR REVIEW
_____________________________________________________________


                                 BILL TURNER
                                 DISTRICT ATTORNEY
                                 BRAZOS COUNTY, TEXAS

                                 Kara S. Comte
                                 Assistant District Attorney
                                 Brazos County, Texas
                                 300 E. 26th Street, Suite 310
                                 Bryan, Texas 77803
                                 (979) 361-4320
                                 (979) 361-4368 (Facsimile)
                                 kcomte@co.brazos.tx.us
                                 State Bar No. 24036387
                      CASE NO. 12-0321


             IN THE SUPREME COURT OF TEXAS

_____________________________________________________________

                       EX PARTE M.R.L.
_____________________________________________________________

          ON REVIEW FROM THE COURT OF APPEALS
             FOR THE TENTH DISTRICT OF TEXAS
                      NO. 10-11-00275-CV
_____________________________________________________________

             RESPONSE TO PETITION FOR REVIEW
_____________________________________________________________


                                 BILL TURNER
                                 DISTRICT ATTORNEY
                                 BRAZOS COUNTY, TEXAS

                                 Kara S. Comte
                                 Assistant District Attorney
                                 Brazos County, Texas
                                 300 E. 26th Street, Suite 310
                                 Bryan, Texas 77803
                                 (979) 361-4320
                                 (979) 361-4368 (Facsimile)
                                 kcomte@co.brazos.tx.us
                                 State Bar No. 24036387
IDENTITY OF PARTIES AND COUNSEL

PETITIONER                 M.R.L.

    Appellate Counsel:     Robert Swearingen
                           Attorney at Law
                           SBN 19563050
                           3002 Texas Avenue South, Suite 101
                           College Station, Texas 77845

    Trial Counsel:         Byron D. Thompson
                           Attorney at Law
                           SBN 24051698
                           3002 Texas Avenue South, Suite 101
                           College Station, Texas 77845

RESPONDENT                 THE STATE OF TEXAS

    Bill Turner
    District Attorney
    Brazos County, Texas

    Trial and Appellate
    Counsel:               Kara S. Comte
                           Assistant District Attorney
                           SBN 24036387
                           300 E. 26th Street, Suite 310
                           kcomte@co.brazos.tx.us
                           Bryan, Texas 77803




                              i
                                                TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ................................................................................. i

TABLE OF CONTENTS............................................................................................................... ii

INDEX OF AUTHORITIES ........................................................................................................ iii

ISSUE PRESENTED ..................................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................ 1

SUMMARY OF THE STATE’S ARGUMENT........................................................................... 2

ARGUMENT ................................................................................................................................. 3

          The court of appeals ruled correctly when it reversed the trial
          court’s order granting expunction and rendered judgment
          denying Petitioner’s expunction. ............................................................................... 8


PRAYER ........................................................................................................................................ 8

CERTIFICATE OF SERVICE .................................................................................................. 8

APPENDIX ............................................................................................................................... 9




                                                                    ii
INDEX OF AUTHORITIES

STATUTES

TEX. CODE CRIM. PROC. art. 42.12 § 2(2)(A)............................................................................ 4

TEX. CODE CRIM. PROC. art. 55.01 ........................................................................................ 3, 7

TEX. CODE CRIM. PROC. art. 55.01(2)(B) .................................................................................. 4

TEX. R. APP. PROC. 41.2 ............................................................................................................ 6

CASES

Collin County Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625 (Tex. App.—
       Dallas 2005, no pet.) ....................................................................................................... 3

Ex parte E.E.H., 869 S.W.2d 496 (Tex. App.—Houston [1st Dist.] 1993, writ denied) .......... 5

Ex parte Fleck, No. 05-07-01433, 2008 WL 2455102 (Tex. App.—Dallas 2008,
      no pet.)(not designated for publication) ......................................................................... 5

Ex Parte M.R.L., No. 10-11-00275-CV, 2012 WL 763139 (Tex. App.—Waco March 7,
      2012)(memorandum opinion)) ........................................................................................ 2

Ex parte M.R.R., 223 S.W.3d 499 (Tex. App.—Amarillo 2006, pet. denied) .......................... 3

Harris County Dist. Attorney’s Office v. D.W.B., 860 S.W.2d 719 (Tex. App.—Houston
       [1st Dist.] 1993, no writ) ................................................................................................ 4

Harris County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572 (Tex. 1991) .................... 4, 7

Rodriguez v. State, 224 S.W.3d 783 (Tex. App.—Eastland 2007, no pet.) ...................... 3-4, 7

State v. Echeverry, 267 S.W.3d 423 (Tex. App.—Corpus Christi 2008, pet. denied) .............. 3

State v. Knight, 813 S.W.2d 210 (Tex. App.—Houston [1st Dist.] 1991, no writ) .................. 5

Texas Dep’t of Public Safety v. Failla, 619 S.W.2d 215 (Tex. App.—Texarkana 1981,
      no writ) ........................................................................................................................... 4

Texas Dep’t of Public Safety v. Lopez, No. 13-05-619-CV, 2007 WL 1933574 (Tex.
      App.—Corpus Christi 2007, no pet.)(not designated for publication) ............... 5, 6, 7, 8


                                                                 iii
Travis County Atty. v. J.S.H., 37 S.W.3d 163 (Tex. App.—Austin 2001, no pet.) .................. 5

Travis County D.A. v. M.M., 354 S.W.3d 920 (Tex. App.—Austin, 2011, no pet. h.) .... 5-6, 6




                                              iv
                                  CASE NO. 12-0321


                       IN THE SUPREME COURT OF TEXAS

      _____________________________________________________________

                             EX PARTE M.R.L.
      _____________________________________________________________

                ON REVIEW FROM THE COURT OF APPEALS
                   FOR THE TENTH DISTRICT OF TEXAS
                            NO. 10-11-00275-CV
      _____________________________________________________________

                   RESPONSE TO PETITION FOR REVIEW
      _____________________________________________________________

TO THE HONORABLE SUPREME COURT OF TEXAS:

      COMES NOW the State of Texas, by and through its District Attorney, and files this

response and would respectfully show the Court the following:

                                 ISSUE PRESENTED

      The court of appeals ruled correctly when it reversed the trial court’s order granting

expunction and rendered judgment denying Petitioner’s expunction.

                              STATEMENT OF FACTS

      Petitioner was arrested on July 24, 2007, for the offense of Driving While

Intoxicated. (CR p. 1). He was charged by information for Driving While Intoxicated on

(CR p. 11; RR p. 11). Subsequently, the information was amended on August 22, 2008, and

Petitioner was charged with Driving While Intoxicated in count one and Racing on a




                                            1
Highway in count two. (CR p. 12; RR p. 12).1 On August 25, 2008, Petitioner pled guilty

to the offense of Racing on a Highway. (CR p. 13; RR p. 13). It appears from the record

that the Driving While Intoxicated charge was waived at the time of the plea. (CR p. 12;

RR p. 12).         Following his plea, Petitioner was sentenced to two (2) years’ deferred

adjudication probation. (CR pp. 14-18; RR pp. 14-18).

         On April 16, 2011, Petitioner filed a Petition for Expunction of Records relating to

the Driving While Intoxicated count. (CR pp. 1-6). The Petition for Expunction stated that

the charge had not resulted in court-ordered community supervision under Article 42.12 of

the Texas Code of Criminal Procedure. (CR p. 2). A hearing was held on June 2, 2011.

(RR p. 3). Following the hearing, and over the State’s objection, the trial court granted

Petitioner’s Petition for Expunction. (RR p. 8; CR pp. 29-33). Following the granting of

the Petition for Expunction, the State filed Notice of Appeal on July 5, 2011. (CR pp. 36-

37).

         After receiving briefs from Petitioner and Respondent, the Tenth Court of Appeals

reversed the trial court’s order granting Petitioner’s expunction and rendered judgment

denying Petitioner’s expunction. Ex Parte M.R.L., No. 10-11-00275-CV, 2012 WL 763139

(Tex. App.—Waco March 7, 2012)(memorandum opinion).

                           SUMMARY OF THE STATE'S ARGUMENT

                  The court of appeals ruled correctly when it reversed the trial court’s order

granting expunction and rendered judgment denying Petitioner’s expunction. Petitioner was


1
   It is important to note that there is only one arrest date listed in the Petition for Expunction: July 24, 2007. (CR
p. 1). July 24, 2007, is also the date listed for both offenses in the amended information. (CR p. 12; RR p. 12).


                                                           2
not entitled to an expunction of his arrest for Driving While Intoxicated.   Petitioner was

placed on deferred adjudication probation for an offense arising out of his arrest for

Driving While Intoxicated and, thus, did not meet all the requirements set forth in the

expunction statute.

                                      ARGUMENT

       The court of appeals ruled correctly when it reversed the trial court’s
       order granting expunction and rendered judgment denying Petitioner’s
       expunction.

       Chapter 55 of the Code of Criminal Procedure governs when and how a person

may receive an expunction of his records. Article 55.01 requires strict compliance with

conditions imposed by the statute; courts have no equitable power to expunge criminal

records. Collin County Criminal Dist. Attorney’s Office v. Dobson, 167 S.W.3d 625,

626 (Tex. App.—Dallas 2005, no pet.) “Trial courts have no inherent or equitable power

to expunge criminal records.” Ex parte M.R.R., 223 S.W.3d 499, 499-500 (Tex. App.—

Amarillo 2006, pet. denied). As such, a trial court commits reversible error if it fails to

comply with the statute. State v. Echeverry, 267 S.W.3d 423, 425 (Tex. App.—Corpus

Christi 2008, pet. denied).

Entitlement to Expunction

       Texas Code of Criminal Procedure Article 55.01 sets forth the requirements a

petitioner must meet when seeking an expunction. TEX. CODE CRIM. PROC. art. 55.01;




                                             3
Rodriguez, 224 S.W.3d at 784.2 The relevant portion of Article 55.01 provides that a

person arrested for a misdemeanor is

      [E]ntitled to have all records and files relating to the arrest expunged
      if…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.
TEX. CODE CRIM. PROC. art. 55.01(2)(B) (emphasis added).

         The legislature intended the expunction statute to clear the record of those who are

wrongfully arrested. See Harris County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d

572, 574 (Tex. 1991); Harris County Dist. Attorney’s Office v. D.W.B., 860 S.W.2d 719,

721 (Tex. App.—Houston [1st Dist.] 1993, no writ). “It was not ‘intended to allow a

person who is arrested, pleads guilty to an offense, and receives probation pursuant to a

guilty plea to expunge arrest and court records concerning that offense.’” D.W.B., 860

S.W.2d at 721 (quoting Texas Dep’t of Public Safety v. Failla, 619 S.W.2d 215, 217

(Tex. App.—Texarkana 1981, no writ)). Deferred adjudication is a form of community

supervision under Article 42.12. TEX. CODE CRIM. PROC. art. 42.12, § 2(2)(A); see

J.T.S., 860 S.W.2d at 721.

Petitioner’s Argument

         Petitioner contends that there is a split among the appellate courts as to the issue of

whether an individual is entitled to expunction when arrested for one offense but placed

on community supervision for another offense arising out of the same arrest.

Specifically, Petitioner identifies three courts of appeal that he claims have “arrived at

2
          Petitioner filed his petition for expunction in 2011; therefore, the State used the 2011 version of the statute
in its analysis, prior to the enactment of the new statute on September 1, 2011.


                                                           4
different answers.” See Ex parte E.E.H., 869 S.W.2d 496 (Tex. App.—Houston [1st

Dist.] 1993, writ denied); State v. Knight, 813 S.W.2d 210 (Tex. App.--Houston [14th

Dist.] 1991); Travis County Atty. v. J.S.H., 37 S.W.3d 163 (Tex. App.—Austin 2001, no

pet.).

         Petitioner is mistaken in his assertion that these courts have addressed the issue

currently before this Court. In all three cases, those courts were dealing with a different

version of the expunction statute than the statute currently at issue before this Court. See

E.E.H., 869 S.W.2d at 497; Knight, 813 S.W.2d at 211-12; J.S.H., 37 S.W.3d at 165. The

version of the statute in effect at the time that Petitioner sought to obtain an expunction

(set forth above) became effective in September of 2009. TEX. CODE CRIM. PROC. art.

55.01. All three of the cases relied upon by Petitioner pre-date the 2009 date of the

expunction statute and, therefore, do not specifically address the issue currently before

this Court. Specifically, the relevant language missing from the earlier version of the

statute is the words “for any offense,” as emphasized above.

         Texas courts which have dealt with that statute containing the “for any offense”

language have all ruled that an individual placed on probation for any offense arising out

of an arrest is not entitled to an expunction. See Ex Parte Fleck, No. 05-07-01433, 2008

WL 2455102 (Tex. App.—Dallas, 2008, no pet.) (not designated for publication); Texas

Department of Public Safety v. Lopez, No. 13-05-619-CV, 2007 WL 1933574 at *2 (Tex.

App.—Corpus Christi 2007, no pet.) (not designated for publication); Travis County D.A.




                                              5
v. M.M., 354 S.W.3d 920 (Tex. App.—Austin, 2011, no pet. h.).3

        In Lopez, the defendant was arrested for Aggravated Assault with a Deadly

Weapon, but he was charged with misdemeanor assault, to which he pled guilty and was

sentenced to twelve (12) months’ deferred adjudication probation. Lopez, 2007 WL

1933574 at *1. Following the completion of his probationary period, the defendant

petitioned the court for an expunction of the Aggravated Assault with a Deadly Weapon

charge, and the trial court granted the petition. Id. On appeal, the appellate court stated,

“[B]y a single issue, the Department contends that because Lopez admitted he was placed

on probation as a result of an arrest, he is not entitled to expunge records related to that

arrest. We agree.” Id. at *2. Further, the court stated, “[B]ecause he was placed on

probation under article 42.12, he is not entitled to expunge records related to this arrest

and probation.” Id.

        Further, the Austin Court of Appeals ruled the same as the Corpus Christi Court in

2011, when it withdrew its previously issued opinion dealing with the same issue. See

M.M., 354 S.W.3d at 921. The Austin Court held that an individual placed on probation

for one offense precluded that individual from having his record expunged as it related to

other offenses arising from the same arrest. Id.




3
  It should be noted that Petitioner makes reference to the M.M. case in his petition as one of the courts that has
“arrived at a different answer.” The Austin Court of Appeals initially ruled that an individual would be eligible to
have an arrest expunged after being placed on community supervision for a different offense arising out of the same
arrest. However, the court then withdrew its opinion pursuant to Texas Rule of Appellate Procedure 41.2 and issued
a new opinion. M.M., 354 S.W.3d at 921. Petitioner is misguided in his attempt to rely on the previous withdrawn
opinion issued by the Austin Court and has even gone so far as to attach the withdrawn opinion in his appendix, as
opposed to the substituted opinion. A copy of the substituted opinion issued by the Austin Court of Appeals is
attached in an appendix to the State’s Response.


                                                         6
       The Texas Legislature specifically accounted for multiple offenses arising out of

the arrest in the statute that was in place at the time Petitioner sought his expunction.

TEX. CODE CRIM. PROC. art. 55.01. By including the language “for any offense,” the

legislature clearly intended to take into consideration charging decisions made by

prosecutors.    Id.   The expunction statute did not enumerate that the community

supervision had to be for the offense the individual was originally arrested for, but for

any offense that might arise out of that arrest. Id. This interpretation of the statute is also

in agreement with the legislature’s intent that the expunction statute is intended to clear

the record of those who are wrongfully arrested. See J.T.S., 807 S.W.2d at 574.

       In the present case, Petitioner was arrested for Driving While Intoxicated. (CR p.

1). He was later charged by a two count information with the offenses of Driving While

Intoxicated and Racing on a Highway with Open Container. (CR p. 12; RR p. 12).

Further, he was placed on deferred adjudication probation for a period of two (2) years

for the offense of Racing on a Highway.           (CR pp. 14-18; RR pp. 14-18).          After

successfully completing the probation, Petitioner petitioned the trial court for an

expunction of the Driving While Intoxicated arrest. (CR pp. 1-6). Like the Lopez case,

Petitioner is not entitled to an expunction of his records because he was placed on

probation under article 42.12 of the Code of Criminal Procedure for an offense arising

out of the arrest for Driving While Intoxicated. Lopez, 2007 WL 1933574 at *2.

       Finally, in conclusion, Petitioner is the party who has the burden of proof on the

Petition for Expunction. Rodriguez, 224 S.W.3d at 784. During the hearing, Petitioner

offered as an exhibit the records relating to his charge and plea to Racing on a Highway.


                                              7
(RR p. 7; RR pp. 11-18). As such, Petitioner conceded that he was placed on community

supervision for an offense arising out of his arrest. As a result, Petitioner is not entitled

to an expunction of the charge for Driving While Intoxicated. Lopez, 2007 WL 1933574

at *2.

                                         PRAYER

         Wherefore, premises considered, the State of Texas respectfully prays that

Supreme Court deny Petitioner’s Petition for Review and allow the opinion issued by the

Tenth Court of Appeals to stand.

                                                  Respectfully submitted,

                                                  BILL TURNER
                                                  DISTRICT ATTORNEY
                                                  BRAZOS COUNTY, TEXAS


                                                  _______/s/__________________
                                                  Kara S. Comte.
                                                  Assistant District Attorney
                                                  State Bar No. 24036387


                             CERTIFICATE OF SERVICE

       I do hereby certify that a true and correct copy of the above and foregoing State’s
Response to Petition for Review was mailed to Robert Swearingen, Attorney for Petitioner
at 3002 Texas Avenue South, Suite 101, College Station, Texas 77845 on this 23rd day of
May, 2012.


                                                  ________/s/_________________
                                                  Kara S. Comte
                                                  Assistant District Attorney




                                             8
                             APPENDIX

Tab 1   Travis County D.A. v. M.M., 354 S.W.3d 920 (Tex. App.—Austin, 2011,
        no pet. h.).




                                  9
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                                                                 110XXVIII Criminal Records
                                                                     110k1226 In General
                                                                        110k1226(3) Expungement or Correction;
                                                             Effect of Acquittal or Dismissal
          Court of Appeals of Texas,                                        110k1226(3.1) k. In general. Most
                    Austin.                                  Cited Cases
   TRAVIS COUNTY DISTRICT ATTORNEY,
                  Appellant,
                      v.                                         Expunction is neither a constitutional nor
              M.M., Appellee.                                common-law right; rather, it is a statutory privilege.
                                                             Vernon's Ann.Texas C.C.P. art. 55.01.
                No. 03–08–00241–CV.
                     Dec. 8, 2011.                           [3] Criminal Law 110         1226(3.1)

Background: Arrestee filed petition seeking to               110 Criminal Law
expunge records relating to driving while intoxicated            110XXVIII Criminal Records
(DWI) and assault charges after State abandoned the                  110k1226 In General
DWI charge, arrestee pled no contest to a resisting-                    110k1226(3) Expungement or Correction;
arrest charge, and arrestee admitted guilt as to felony      Effect of Acquittal or Dismissal
assault charge so that trial court could consider the                       110k1226(3.1) k. In general. Most
admitted offense in sentencing her for resisting arrest.     Cited Cases
The District Court, Travis County, 299th Judicial
District, Charles F. Baird, J., granted petition. District        A person is entitled to expunction only when all
attorney appealed.                                           statutory conditions have been met. Vernon's
                                                             Ann.Texas C.C.P. art. 55.01.
Holdings: On rehearing, the Court of Appeals, en
banc, David Puryear, J., held that:                          [4] Criminal Law 110         1226(3.1)
(1) felony assault charge was not dismissed and thus
was not expungible, and                                      110 Criminal Law
(2) status of felony assault charge as “not dismissed”           110XXVIII Criminal Records
precluded expunction for any offense arising out of                  110k1226 In General
the transaction.                                                        110k1226(3) Expungement or Correction;
                                                             Effect of Acquittal or Dismissal
    Reversed and rendered.                                                  110k1226(3.1) k. In general. Most
                                                             Cited Cases
                    West Headnotes
                                                                  Trial court has no power to extend equitable
[1] Criminal Law 110          1226(3.1)                      relief beyond the clear meaning of the expunction
                                                             statute. Vernon's Ann.Texas C.C.P. art. 55.01.
110 Criminal Law
    110XXVIII Criminal Records                               [5] Criminal Law 110         1226(3.1)
        110k1226 In General
           110k1226(3) Expungement or Correction;            110 Criminal Law
Effect of Acquittal or Dismissal                                 110XXVIII Criminal Records
               110k1226(3.1) k. In general. Most                     110k1226 In General
Cited Cases                                                             110k1226(3) Expungement or Correction;
                                                             Effect of Acquittal or Dismissal
     The Court of Appeals applies an abuse-of-                              110k1226(3.1) k. In general. Most
discretion review standard to trial court rulings on         Cited Cases
petitions for expunction.
                                                                  The cause of action created by the expunction
[2] Criminal Law 110          1226(3.1)                      statute is civil rather than criminal in nature, and the
                                                             burden of proving compliance with the statutory
                                                             requirements rests with the petitioner. Vernon's
110 Criminal Law
                                                             Ann.Texas C.C.P. art. 55.01.
[6] Criminal Law 110         1226(3.1)                     110 Criminal Law
                                                               110XXVIII Criminal Records
110 Criminal Law                                                   110k1226 In General
    110XXVIII Criminal Records                                        110k1226(3) Expungement or Correction;
        110k1226 In General                                Effect of Acquittal or Dismissal
           110k1226(3) Expungement or Correction;                         110k1226(3.1) k. In general. Most
Effect of Acquittal or Dismissal                           Cited Cases
               110k1226(3.1) k. In general. Most
Cited Cases                                                    An individual is only entitled to expunction if
                                                           she satisfies all of the statutory requirements.
    Arrestee's unadjudicated felony assault charge         Vernon's Ann.Texas C.C.P. art. 55.01.
was not dismissed within meaning of statute
requiring charge to be dismissed before charge would       [10] Criminal Law 110        1226(3.1)
be expungible, where arrestee admitted guilt of
charge so that trial court could, under another statute,   110 Criminal Law
take such admission into account when it sentenced             110XXVIII Criminal Records
her on separate resisting-arrest charge. V.T.C.A.,                 110k1226 In General
Penal Code § 12.45; Vernon's Ann.Texas C.C.P. art.                    110k1226(3) Expungement or Correction;
55.01(a)(2)(A) (2008).                                     Effect of Acquittal or Dismissal
                                                                          110k1226(3.1) k. In general. Most
[7] Criminal Law 110         1226(4)                       Cited Cases

110 Criminal Law                                                Courts do not have equitable power to grant
    110XXVIII Criminal Records                             relief beyond the plain language of the expunction
        110k1226 In General                                statute. Vernon's Ann.Texas C.C.P. art. 55.01.
           110k1226(3) Expungement or Correction;
Effect of Acquittal or Dismissal                           *921 Giselle Horton, Assistant Travis County
              110k1226(4) k. Arrest records. Most          Attorney, Austin, TX, for appellant.
Cited Cases
                                                           Christopher M. Perri, Austin, TX, for appellee.
     A primary purpose of the expunction statute is to
permit the expunction of records from wrongful             Before Chief Justice JONES, Justices PURYEAR,
arrests. Vernon's Ann.Texas C.C.P. art. 55.01.             PEMBERTON, HENSON, ROSE, and GOODWIN.

[8] Criminal Law 110         1226(3.1)                                           OPINION
                                                           DAVID PURYEAR, Justice.
110 Criminal Law                                                We grant the Travis County District Attorney's
    110XXVIII Criminal Records                             motion for rehearing, withdraw our previous opinion
        110k1226 In General                                and judgment dated August 6, 2010, and substitute
           110k1226(3) Expungement or Correction;          the following en banc opinion and judgment in their
Effect of Acquittal or Dismissal                           place. See Tex.R.App. P. 41.2 (allowing appellate
               110k1226(3.1) k. In general. Most           courts to decide to consider case en banc).
Cited Cases
                                                                The Travis County District Attorney appeals
     Status of arrestee's felony assault charge as “not    from the trial court's order granting M.M.'s petition
dismissed” under expunction statute precluded her          for expunction of two charges arising from an arrest
from obtaining expunction of records of any offense        in 2004. In the 2004 incident, M.M. was arrested for
arising out of transaction for which she was arrested.     driving while intoxicated (DWI), resisting arrest, and
Vernon's Ann.Texas C.C.P. art. 55.01(a)(2)(A)              assault of a public servant. Later, as part of a
(2008).                                                    negotiated plea bargain, the Travis County Attorney
                                                           abandoned the DWI charge, M.M. pled no contest to
[9] Criminal Law 110         1226(3.1)                     the resisting-arrest charge, and M.M. admitted guilt
                                                           as to the charge of assault of a public servant and
asked the trial court to take the admitted offense into    reviewing trial-court rulings on petitions for
account in sentencing her for resisting arrest. See        expunction. Heine v. Texas Dep't of Pub. Safety, 92
Tex. Penal Code Ann. § 12.45 (West 2011). The              S.W.3d 642, 646 (Tex.App.-Austin 2002, pet.
court sentenced M.M. to two years of deferred-             denied). A trial court abuses its discretion if it acts
adjudication community supervision. See Tex.Code           arbitrarily or unreasonably, without reference to
Crim. Proc. Ann. art. 42.12, § 5 (West Supp. 2011).        guiding rules and principles of law. Cire v.
M.M. later filed a petition seeking to expunge all         Cummings, 134 S.W.3d 835, 838–39 (Tex.2004). We
records and files relating to her DWI and assault          review the trial court's legal conclusions de novo
charges, and the trial court granted the petition.         because the trial court has no discretion in
                                                           determining the meaning of the law or applying the
     On appeal, the Travis County District Attorney        law to the facts. See Texas Dep't of Pub. Safety v.
challenges the trial court's order expunging the           Nail, 305 S.W.3d 673, 678 (Tex.App.-Austin 2010,
assault and DWI charges, contending that M.M. did          no pet.).
not meet the requirements with respect to either
charge. We agree and reverse the trial court's order.           When construing statutes, we use a de novo
                                                           standard of review, and our primary objective is to
                  BACKGROUND                               ascertain and give effect to the legislature's intent.
     The facts of this case are undisputed. In 2004, a     Tex. Gov't Code Ann. § 312.005 (West 2005); F.F.P.
state trooper conducted a traffic *922 stop of M.M.'s      Operating Partners, L.P. v. Duenez, 237 S.W.3d 680,
car after observing M.M. commit traffic violations.        683 (Tex.2007). To discern that intent, we begin with
M.M. refused to perform field sobriety tests and then      the statute's words. Tex. Gov't Code Ann. §§
resisted when the trooper attempted to place her           312.002, .003 (West 2005); State v. Shumake, 199
under arrest. With the assistance of two officers who      S.W.3d 279, 284 (Tex.2006). If a statute uses a term
arrived on the scene, the trooper was eventually able      with a particular meaning or assigns a particular
to take M.M. into custody. Later, when the officers        meaning to a term, we are bound by the statutory
attempted to transfer M.M. from one patrol car to          usage. See Tex. Gov't Code Ann. § 311.011 (West
another, M.M. bit one of them on the head.                 2005); Texas Dep't of Transp. v. Needham, 82
                                                           S.W.3d 314, 318 (Tex.2002). Undefined terms in a
     After her arrest, M.M. was charged by                 statute are typically given their ordinary meaning, but
indictment for the felony offense of assault of a          if a different or more precise definition is apparent
public servant and by information for the                  from the term's use in the context of the statute, we
misdemeanor offenses of DWI and resisting arrest.          apply that meaning. In re Hall, 286 S.W.3d 925,
As part of a plea bargain, the Travis County Attorney      928–29 (Tex.2009). If a statute is unambiguous, we
abandoned the DWI charge, M.M. pled no contest to          adopt the interpretation supported by its plain
the resisting-arrest charge, and M.M. admitted guilt       language unless such an interpretation would lead to
as to the felony offense of assault of a public servant.   absurd results that the legislature could not possibly
Pursuant to section 12.45 of the penal code, M.M.          have intended. Texas Dep't of Protective &
asked the trial court to take the admitted felony          Regulatory Servs. v. Mega Child Care, Inc., 145
offense into consideration in sentencing her for the       S.W.3d 170, 177 (Tex.2004). We consider statutes as
charge of resisting arrest. The trial court agreed to do   a whole rather than their isolated provisions. Texas
so and ultimately sentenced M.M. to two years'             Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d
deferred-adjudication community supervision.               637, 642 (Tex.2004). We presume that the legislature
                                                           chooses a *923 statute's language with care, deciding
                                                           to include or omit words for a purpose. In re M.N.,
     In 2007, M.M. filed a petition to expunge the         262 S.W.3d 799, 802 (Tex.2008).
records pertaining to the DWI and assault charges.
The Travis County District Attorney (“the DA”), the
Travis County Attorney, and the Texas Department                               DISCUSSION
of Public Safety opposed the petition for expunction,           [2][3][4][5] This appeal is governed by a former
arguing that M.M. did not meet the statutory criteria      version of article 55.01 of the code of criminal
for expunction. After a hearing, the trial court granted   procedure (“the expunction statute”), which sets out
M.M.'s petition. The DA appeals from the trial court's     the requirements for expunction. See Act of May 28,
order.                                                     2003, 78th Leg., R.S., ch. 1236, § 1, 2003 Tex. Gen.
                                                           Laws 3499, 3499 (“former art. 55.01”) (amended
                                                           2011) (current version at Tex.Code Crim. Proc. Ann.
          STANDARD OF REVIEW                               art. 55.01 (West Supp. 2011)); Heine, 92 S.W.3d at
    [1] We use an abuse-of-discretion standard in
648. Expunction is neither a constitutional nor
common-law right; rather, it is a statutory privilege.         (B) the person has been released and the charge,
Ex parte S.C., 305 S.W.3d 258, 260 (Tex.App.-                  if any, has not resulted in a final conviction and
Houston [14th Dist.] 2009, no pet.). “[A] person is            is no longer pending and there was no court
entitled to expunction only when all statutory                 ordered community supervision under Article
conditions have been met.” Harris County Dist. Att'y           42.12 for any offense other than a Class C
v. Lacafta, 965 S.W.2d 568, 569 (Tex.App.-Houston              misdemeanor; and
[14th Dist.] 1997, no pet.); see In re Wilson, 932
S.W.2d 263, 266 (Tex.App.-El Paso 1996, no writ).              (C) the person has not been convicted of a felony
The trial court has no power to extend equitable relief        in the five years preceding the date of the arrest.
beyond the clear meaning of the expunction statute.
Texas Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803,
806 (Tex.App.-Houston [14th Dist.] 2008, no pet.).              Former art. 55.01. The current version of
The cause of action created by the expunction statute      subarticle 55.01(a)(2) differs from the former
is civil rather than criminal in nature, and the burden    subarticle, but the introductory portion of the current
of proving compliance with the statutory                   version of subarticle 55.01(a) is identical to the
requirements rests with the petitioner. Houston Police     former version. Compare *924Tex.Code Crim. Proc.
Dep't v. Berkowitz, 95 S.W.3d 457, 460 (Tex.App.-          Ann. art. 55.01(a), (a)(2), with former art. 55.01(a),
Houston [1st Dist.] 2002, pet. denied).                    (a)(2). In other words, both the current and the former
                                                           versions specify that an individual is entitled to “have
                                                           all records and files relating to the arrest expunged” if
     The version of article 55.01(a) in effect when        certain criteria are met. Tex.Code Crim. Proc. Ann.
M.M. sought to expunge the charges provided, in            art. 55.01(a); former art. 55.01(a).
relevant part, as follows:
                                                                M.M. contends on appeal that the trial court did
  (a) A person who has been placed under a custodial       not err in granting her petition for expunction
  or noncustodial arrest for commission of either a        because she satisfied all of the requirements of the
  felony or misdemeanor is entitled to have all            expunction statute with respect to her DWI and
  records and files relating to the arrest expunged if:    assault charges. She asserts that the unit of
                                                           expunction is “the criminal conduct [that] forms the
  ....                                                     basis for a criminal charge,” not the criminal conduct
                                                           that forms the basis for an arrest, which could include
  (2) each of the following conditions exist:              several separate criminal charges. In other words, she
                                                           contends that the legislature's use of the term “the
     (A) an indictment or information charging the         arrest” in former subarticle 55.01(a) refers to each
     person with commission of a felony has not been       charge arising from the arrest and that her DWI and
     presented against the person for an offense           assault charges can therefore be divorced from the
     arising out of the transaction for which the          other charge and individually expunged.FN1 We
     person was arrested or, if an indictment or           disagree. Based on the plain language of the former
     information charging the person with                  expunction statute, we conclude that the statute only
     commission of a felony was presented, the             speaks to expunging the records relating to an arrest,
     indictment or information has been dismissed or       not individual records relating to a charge arising
     quashed, and:                                         from an arrest.

         (i) the limitations period expired before the              FN1. Endorsing the construction offered by
         date on which a petition for expunction was                M.M. would lead to potentially serious
         filed under Article 55.02; or                              problems for law-enforcement personnel.
                                                                    See Tex. Gov't Code Ann. § 311.023(5)
         (ii) the court finds that the indictment or                (West 2005) (explaining that courts may
         information was dismissed or quashed because               consider consequences         of particular
         the presentment had been made because of                   construction when ascertaining meaning of
         mistake, false information, or other similar               statute). If we were to interpret “arrest” as
         reason indicating absence of probable cause at             referring to a charge arising from an arrest,
         the time of the dismissal to believe the person            then an individual would have the ability to
         committed the offense or because it was void;              have expunged “all records and files relating
                                                                    to” a charge arising from his arrest. See
         Tex.Code Crim. Proc. Ann. art. 55.01(a)           to section 12.45 of the penal code, which states:
         (West Supp. 2011); former art. 55.01(a). In
         circumstances in which only a single charge         (a) A person may, with the consent of the attorney
         follows an arrest, an individual would be           for the state, admit during the sentencing hearing
         able to have all documents related to that          his guilt of one or more unadjudicated offenses and
         charge expunged. The situation would be             request the court to take each into account in
         more problematic under circumstances, like          determining sentence for the offense or offenses of
         those present in this case, in which more           which he stands adjudged guilty.
         than one charge stems from a single arrest.
         The phrase “all records and files relating to”      (b) Before a court may take into account an
         would seem broad enough to include all              admitted offense over which exclusive venue lies
         documents that discuss or refer to the charge       in another county or district, the court must obtain
         that is the subject of the expunction motion        permission from the prosecuting attorney with
         even if those documents also discuss other          jurisdiction over the offense.
         charges that resulted from the arrest.
         Accordingly, provided that the requirements
         of article 55.01 were met, an individual            (c) If a court lawfully takes into account an
         would be entitled to expunge documents that         admitted offense, prosecution is barred for that
         bear upon charges for which expunction was          offense.
         not sought, even if those charges were
         successfully prosecuted. Moreover, law-                Tex. Penal Code Ann. § 12.45. The trial court
         enforcement personnel would be forced to          later granted M.M.'s petition to expunge the felony
         comb through all records pertaining to and        charge, concluding that the charge had been
         following the arrest to see what documents        dismissed when it was taken into consideration under
         mentioned the charge at issue. Nothing in         section 12.45. FN2 On appeal, the DA contends that
         the language of the former statute persuades      the trial court erred in granting the expunction
         us that the legislature intended to impose        because an admitted offense taken into consideration
         such an onerous burden on law-enforcement         under section 12.45 does not constitute a dismissal
         officials. See former art. 55.01.                 under former subarticle (a)(2)(A) of the expunction
                                                           statute. In response, M.M. argues that an admitted
     Specifically under the circumstances of this case,    offense taken into account under section 12.45
we conclude that M.M. is not entitled to expunction        “resembles” a dismissal and is the functional
of the DWI and assault charges because an                  equivalent of a dismissal because the felony
indictment for the felony offense of assault of a          proceedings did not result in a conviction or acquittal
public servant was presented against her in this case      and were “terminated solely in her favor.” We
and was not dismissed, thus disqualifying her for          disagree with M.M.
expunction under former subarticle (a)(2)(A) of the
statute as to any offense arising out of the transaction            FN2. The trial court issued findings of fact
for which she was arrested. See former art.                         and conclusions of law in which it
55.01(a)(2)(A). Our conclusion is based on two                      specifically concluded that the felony
determinations: (1) the felony indictment for assault               indictment presented against M.M. “was
of a public servant presented against M.M. and taken                dismissed due to the proceedings that
into consideration in sentencing her for the resisting-             occurred pursuant to Tex. P.Code § 12.45.”
arrest charge was not dismissed, and (2) given that
the indictment was not dismissed, M.M. is                       Although M.M. correctly points out that the
disqualified from expunction under former subarticle       State could no longer prosecute her on the assault
(a)(2)(A) for all charges arising from her arrest. We      charge under the terms of section 12.45, see id., that
address each determination separately below.               is not the same as a dismissal, see Black's Law
                                                           Dictionary 537 (9th ed. 2009) (defining “dismissal”
Felony Indictment                                          as “[t]ermination of an action or claim without
     [6] In the trial court, M.M. admitted guilt as to     further hearing, esp[ecially] before the trial of the
the felony charge of assault of a public servant, and      issues involved”). To begin with, the record in this
the trial court agreed *925 to take the admitted           case does not contain a motion by the State seeking
offense into consideration in sentencing her on the        to dismiss the felony assault charge, and accordingly,
resisting-arrest charge. The trial court did so pursuant   there is no order dismissing the charge. Further, the
                                                           plain language of section 12.45 does not include the
word “dismissal” or otherwise suggest that an               defendant's favor. Here, the trial court took no action
admitted offense under the statute should be or is          on the felony indictment, and the felony proceedings
dismissed at the time that it is taken into                 were not terminated in M.M.'s favor.
consideration in the sentencing of another offense.
Moreover, unlike a dismissal in which there is a                 [7] Further, holding that an offense taken into
termination of the action without consideration of a        account under section 12.45 constituted a dismissal
defendant's guilt for the crime alleged, in this case,      under former subarticle (a)(2)(A) of the expunction
M.M.'s culpability for the felony assault charge was        statute would not be consistent with a primary
considered by the trial court in sentencing M.M. on         purpose of the expunction statute, which is to permit
the resisting-arrest charge. In light of the preceding,     the expunction of records of wrongful arrests. Harris
we must conclude that even though the State was not         County Dist. Attorney's Office v. J.T.S., 807 S.W.2d
permitted to prosecute her for the admitted offense,        572, 574 (Tex.1991); T.C.R. v. Bell County Dist.
that indictment was not dismissed and remained              Attorney's Office, 305 S.W.3d 661, 671 (Tex.App.-
pending.                                                    Austin 2009, no pet.). When a defendant admits guilt
                                                            as to an offense arising out of an arrest, she
     M.M. also references definitions of “dismissal”        necessarily admits that she was not wrongfully
addressed in the DA's brief and argues that if the          arrested. See Ex parte P.D.H., 823 S.W.2d 791, 793
definitions apply to this case, then the trial court's      (Tex.App.-Houston [14th Dist.] 1992, no writ) (“In
consideration of the admitted offense pursuant to           the instant case, appellee pled guilty and by doing so
section 12.45 falls within the definitions. See State v.    admitted that she was not wrongfully arrested.”); see
Moreno,       807      S.W.2d     327,     329,      332    also J.T.S., 807 S.W.2d at 574 (“[T]he expunction
(Tex.Crim.App.1991) (defining “dismisse[d]” as              law clearly was not ‘intended to allow a person who
“effectively terminat[ing] the prosecution in favor of      is arrested, pleads guilty to an offense, and receives
the defendant”); *926Harris County Dist. Attorney's         probation pursuant to a guilty plea to expunge arrest
Office v. R.R.R., 928 S.W.2d 260, 264 (Tex.App.-            and court records concerning that offense.’ ” (quoting
Houston [14th Dist.] 1996, no writ) (defining               Texas Dep't of Pub. Safety v. Failla, 619 S.W.2d 215,
“dismissed” as “essentially terminat[ing] the               217 (Tex.Civ.App.-Texarkana 1981, no writ))). Here,
proceedings”). To begin with, Moreno is                     M.M. admitted guilt as to the felony assault charge,
distinguishable from this case because the definition       and the offense was taken into account in sentencing
of “dismisse[d]” discussed in Moreno pertains to            her on the resisting-arrest charge. By admitting guilt
article 44.01 of the code of criminal procedure, which      as to the assault charge, she also admitted that her
addresses appeals by the State, not article 55.01. See      arrest was not wrongful. See P.D.H., 823 S.W.2d at
Tex.Code Crim. Proc. Ann. art. 44.01(a)(1) (West            793; J.T.S., 807 S.W.2d at 574.
Supp. 2011). Further, even assuming that the
definition in Moreno applies here, the action taken              For all of the reasons given above, we hold that
regarding the felony indictment presented against           the trial court erred in determining that consideration
M.M. does not fit within Moreno's definition of             of M.M.'s admission of guilt as to the assault charge
“dismisse[d]” because the felony prosecution was not        in sentencing her on the resisting-arrest charge
terminated in favor of M.M. Rather, the trial court         pursuant to section 12.45 constituted a “dismissal” of
took M.M.'s admission of guilt as to the felony             the assault charge under former subarticle (a)(2)(A)
offense into consideration when it sentenced her for        of the expunction statute.
resisting arrest, thus allowing for the possibility of an
increased sentence, which is contrary to the concept        Former Subarticle (a)(2)(A)
that the case was terminated in M.M.'s favor.                    [8] Having determined that M.M.'s felony assault
                                                            charge was not dismissed, we must also conclude that
     R.R.R. is also distinguishable from this case          M.M. failed to satisfy former subarticle (a)(2)(A) of
because there, the indictment presented against the         the expunction statute, which requires that any felony
defendant was quashed, and the prosecutor notified          indictment presented as a result*927 of an arrest be
the defendant that the State would not reindict the         dismissed before a person can obtain expunction of
defendant for that offense. 928 S.W.2d at 263. The          an arrest record. Specifically, former subarticles (a)
two actions indicated to the R.R.R. court that there        and (a)(2)(A) state, in relevant part, that:
was an absence of probable cause. Id. at 264. Thus,
R.R.R. was consistent with Moreno's definition of             A person who has been placed under a custodial or
“dismissal” because in R.R.R., the proceedings                noncustodial arrest for commission of either a
against the defendant were terminated in the                  felony or misdemeanor is entitled to have all
  records and files relating to the arrest expunged if:       an indictment or information charging the person
                                                              with commission of a felony [was not] presented
    an indictment or information charging the person          against the person for an offense arising out of the
    with commission of a felony has not been                  transaction for which the person was arrested or, if
    presented against the person for an offense               an indictment or information charging the person
    arising out of the transaction for which the              with commission of a felony was presented, the
    person was arrested or, if an indictment or               indictment or information [was] dismissed or
    information charging the person with                      quashed.
    commission of a felony was presented, the
    indictment or information has been dismissed or              Former art. 55.01(a)(2)(A) (emphasis added).
    quashed.                                                Based on the italicized portion of the provision, a
                                                            trial court may not expunge an arrest record if the
    Former art. 55.01(a), (a)(2)(A).                        transaction for which the person was arrested resulted
                                                            in a felony indictment that was not dismissed. Thus,
     [9] Neither party makes a specific argument            former subarticle (a)(2)(A) disqualifies a person from
regarding former subarticle (a)(2)(A) of the                expunction for all charges arising from the arrest if
expunction statute. Rather, the parties focus on            any felony indictment was presented for any offense
former subarticle (a)(2)(B) of the statute, which sets      arising from the arrest. This meaning is made
forth the second requirement that must be satisfied         especially clear given the language of former
before a person is entitled to expunction. See id.          subarticle (a), which refers only to “the arrest” and
(a)(2)(B). However, M.M. does not reach the second          states that *928 the relief that would be granted if a
requirement because she does not satisfy the first          defendant meets the necessary requirements is
requirement. As previously stated, we use a de novo         expunction of “all records and files relating to the
standard of review in construing statutes and in            arrest.” Because M.M. was presented with a felony
reviewing the trial court's legal conclusions, and an       indictment that was not dismissed, she does not
individual is only entitled to expunction if she            satisfy the first requirement for expunction and is not
satisfies all of the statutory requirements. See F.F.P.     entitled to expunction of any of the records arising
Operating Partners, 237 S.W.3d at 683; Nail, 305            from her arrest.
S.W.3d at 678; Lacafta, 965 S.W.2d at 569. Thus,
regardless of the focus of the parties' briefs, we               [10] To hold otherwise would require us to
conclude that if M.M. fails to satisfy any of the           change various portions of the language in former
requisites of the expunction statute, she is not entitled   subarticles (a) and (a)(2)(A). For example, we would
to expunction as a matter of law.                           first need to read subarticle (a) as authorizing the
                                                            expunction of all records and files relating to “each
     M.M. does not satisfy the first requirement of the     charge arising from the arrest,” rather than “the
expunction statute as set forth under former subarticle     arrest.” We would then need to read subarticle
(a)(2)(A) because former subarticles (a) and (a)(2)(A)      (a)(2)(A) as prohibiting the presentation of a felony
permit the expunction of records pertaining to the          indictment for “the charge the person is seeking to
arrest, not to individual charges arising from the          expunge” rather than for “an offense arising out of
arrest. Specifically, former subarticle (a) sets forth      the transaction for which the person was arrested.”
the relief that will be granted to a person who meets       As we previously stated, an individual must comply
the requirements of the statute, stating that a person is   with all of the requirements in order to be entitled to
entitled to have “all records and files relating to the     expunction, and courts do not have equitable power
arrest expunged” (emphasis added) if the person             to grant relief beyond the plain language of the
meets the three requirements set forth in subparts (A),     expunction statute. S.C., 305 S.W.3d at 260; J.H.J.,
(B), and (C) of former subarticle (a)(2) of the statute.    274 S.W.3d at 806; Lacafta, 965 S.W.2d at 569. We
Thus, from the beginning of the statute, the plain          cannot ignore or alter various portions of the
language refers to “the arrest” and grants relief           language of the statute in order to achieve a
related to “the arrest,” not to individual charges          construction that allows for the expunction of one of
arising from the arrest.                                    multiple charges arising from an arrest.

    The plain language in former subarticle (a)(2)(A)            Further, allowing a person to expunge individual
is consistent with that in former subarticle (a).           charges when there is no suggestion that the arrest
Former subarticle (a)(2)(A) requires that:                  that resulted in the charges was wrongful would be
                                                            contrary to a primary purpose of the expunction
statute, which is to allow the record of a wrongful                 arrest. Former art. 55.01(a)(2)(C). If they
arrest to be expunged, see J.T.S., 807 S.W.2d at 574.               were so convicted, the arrest would stay on
Here, M.M. admitted guilt as to the assault charge,                 their record even though it was proven to be
was convicted of the resisting-arrest charge, and was               wrongful.
not prosecuted for the DWI charge only because the
county attorney abandoned the charge as part of a              *929 Under the terms of the former statute,
plea bargain. As previously stated, an admission of        M.M. is not entitled to expunction of her DWI and
guilt as to an offense arising from an arrest is also an   assault charges because she fails to satisfy the first
admission that the arrest was not wrongful.FN3 See         requirement for expunction. Specifically, she was
P.D.H., 823 S.W.2d at 793; J.T.S., 807 S.W.2d at           presented with a felony indictment for assault of a
574.                                                       public servant that was not dismissed, thus
                                                           disqualifying her for expunction under former
         FN3. The Texas Supreme Court has stated,          subarticle (a)(2)(A) of the expunction statute.FN5
         “[t]he public has an important interest in        Accordingly, the trial court abused its discretion in
         arrest records being kept for use in              expunging M.M.'s DWI and assault charges.
         subsequent     punishment       proceedings,
         including subsequent applications for                      FN5. The analysis in this case conflicts with
         probation. These records are valuable to                   the analysis employed by this Court in a
         document and deter recidivism.” Harris                     prior memorandum opinion. See S.P.S. v.
         County Dist. Attorney's Office v. J.T.S., 807              State, No. 03–09–00151–CV, 2010 WL
         S.W.2d 572, 574 (Tex.1991).                                668884, 2010 Tex.App. LEXIS 1358
                                                                    (Tex.App.-Austin Feb. 26, 2010, no pet.)
     We recognize that former subarticle (a)(2)(B)                  (mem. op.). In S.P.S., the defendant was
makes reference to the phrase “the charge” in setting               arrested and charged with the felony
forth the second requirement necessary for                          offenses of criminal mischief and burglary
expunction, but under the circumstances of this case,               of a vehicle. Id. at *1, 2010 Tex.App.
M.M. does not reach the second requirement because                  LEXIS 1358 at *1. Like this case, the
she does not satisfy the first requirement. Even if she             defendant in S.P.S. pled guilty to one of the
were not disqualified under the first requirement, a                charges, and the State abandoned the other
reference to “the charge” in one provision of the                   charge as part of a plea bargain. Id.
statute does not change the plain language of former                Ultimately, this Court concluded in S.P.S.
subarticles (a) and (a)(2)(A), which are written from               that the defendant was entitled to the
the perspective of “the arrest” and which are                       expunction of the abandoned charge because
consistent with the primary purpose of the statute.                 he satisfied the requirements of the
Any conflict in the language of the statute must be                 expunction statute with respect to that
resolved by the legislature, not the courts. If the                 charge. Id. at *3–4, 2010 Tex.App. LEXIS
legislature intends something different, it could                   1358 at *10–11. In reaching this result, we
amend the statute to authorize the expunction of all                primarily relied on another appellate court's
records and files relating to an individual charge,                 decision that had previously concluded that
rather than an arrest, and could further clarify the                article 55.01 authorized the expunction “of
requirements for expunction to make it clear that                   less than all charges arising from a single
each charge may be expunged individually if it meets                arrest.” See Ex parte E.E.H., 869 S.W.2d
the necessary requirements, even if the arrest itself               496, 498 (Tex.App.-Houston [1st Dist.]
was not wrongful and even if the arrest resulted in a               1993, writ denied). However, as discussed
conviction on another charge.FN4                                    above, we hold in this opinion that former
                                                                    article 55.01 only authorizes the expunction
         FN4. The former expunction statute did not                 of records relating to an arrest and does not
         provide an absolute bar to the retention of a              explicitly authorize expunction of records
         wrongful arrest on a person's record. Even                 relating to individual charges arising from
         when people satisfied the first two                        an arrest. Accordingly, we decline to follow
         requirements of the former expunction                      the analysis employed in our prior
         statute and showed that they were in fact                  memorandum opinion and respectfully
         wrongfully arrested, they still had to prove               disagree with the opinions of our sister
         that they were not convicted of a felony in                courts of appeals to the extent that they have
         the five years preceding the date of the                   permitted the expunction of an individual
        charge arising from a multiple-charge arrest.
        See Ex parte E.E.H., 869 S.W.2d at 498; see
        also State v. Knight, 813 S.W.2d 210, 211–
        12 (Tex.App.-Houston [14th Dist.] 1991, no
        writ) (reversing portion of trial court's order
        that expunged records pertaining to charges
        for tampering with governmental record and
        aggravated perjury but affirming portion of
        order expunging record for other
        misdemeanor charge for tampering with
        governmental record that was dismissed as
        part of plea bargain).

                  CONCLUSION
    In light of the foregoing, we reverse the trial
court's expunction order and render judgment
denying expunction for M.M.'s DWI and assault
charges.

Tex.App.–Austin,2011.
Travis County Dist. Atty. v. M.M.
354 S.W.3d 920

END OF DOCUMENT

								
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