law-expunction
EXPUNCTION CASE LAW SNIPPETS
CAVEAT: On September 1, 2011, an amended, and entirely restructured Article
55.01(a) replaced the provisions at issue in this case. See Act of June 17, 2011,
82nd Leg., R.S., ch. 690, § 1, 2011 Tex. Gen. Laws 1651, 1651-1653,1655 (current
version at Tex. Code Crim. Proc. Ann. art. 55.01(a) (West Supp 2010)). While we
recognize the Legislature's action, the case before us was decided before the
effective date of the most recent amendment and is governed by the prior
statute. Citations to Article 55.01(a) in this opinion refer to the statute as it
existed prior to September 1, 2011.
The right to an expunction is a statutory right. In re E.R.W., 281 S.W.3d 572, 573 (Tex. App. - El
Paso 2008, pet. denied). When, as in this case, the petitioner alleges that she is entitled to an
expunction under subsection (a) of Article 55.01, the trial court has no discretion but to grant the
petition if the statutory requirements are met. (2) See In re S.D., No. 08-08-00180-CV, 2010 WL
4676921, at *3 (Tex. App. - El Paso Nov. 17, 2010, no pet.), citing Ex parte Current, 877 S.W.2d
833, 836 (Tex. App. - Waco 1994, no writ). By the same token, trial courts have no equitable
power to grant expunction should the petitioner fail to establish her right to such by
demonstrating strict compliance with the conditions imposed by Article 55.01. See In re
Expunction of Jones, 311 S.W.3d 502, 504-05 (Tex. App. - El Paso 2009, no pet.); see also In re
E.R.W., 281 S.W.3d at 573 (noting that it is the petitioner's burden to establish the statutory
requirements have been met).
In relevant part, Article 55.01(a)(2) provides the right to have all records of an arrest for the
commission of a felony or misdemeanor offense expunged only if the petitioner establishes the
existence of several conditions. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2) (West Supp
2010). If an indictment or information charging the person with commission of a felony was
presented, the petitioner must demonstrate that the indictment or information has been
dismissed or quashed. Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A). In addition, under
subsection (A), the petitioner also must demonstrate either that the statute of limitations for the
offense expired before the petition for expunction was filed or, obtain a trial court finding that the
information or indictment was dismissed or quashed; because the petitioner completed a court
ordered pretrial intervention plan according to Section 76.011 of the Texas Government Code,
because there was a reason to indicate the presentment was without probable cause to believe
the person committed the offense, or the indictment or information was otherwise void. See Tex.
Code Crim. Proc. Ann. art. 55.01(a)(2)(A)(i), (ii). Under subsection (B), the petitioner must also
prove that she has been released from custody related to the charge, that the charge is no
longer pending, that the charge "has not resulted in a final conviction," and with the exception of
Class C misdemeanors, that there was no court ordered community supervision pursuant to
Article 42.12. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B). Finally, the petitioner must
establish that she was not convicted of a felony offense in the five years preceding the arrest.
See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C).
Article 55.01 of the Texas Code of Criminal Procedure allows a trial court to expunge the arrest
records of a person who is arrested, but who is later acquitted or had the charges dropped. Tex.
Code Crim. Proc. Ann. art. 55.01(a) (West Supp. 2010). A statutory expunction proceeding is a
civil rather than criminal proceeding, and the petitioner has the burden of proving that he has
complied with the requirements of the expunction statute. Houston Police Dep’t v. Berkowitz, 95 S.
W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); Collin Cnty. Criminal Dist.
Attorney’s Office v. Dobson, 167 S.W.3d 625, 626 (Tex. App.—Dallas 2005, no pet.).
CASES
08‑1014 IN THE MATTER OF THE EXPUNCTION OF E.R.W.; from Pecos County; 8th district
(08‑07‑00067‑CV, ___ SW3d ___, 10‑23‑08)(expunction, capital murder conviction overturned)
The right to expunction is a statutory privilege. In re Expunction of C.V., 214 S.W.3d 43, 44 (Tex.
App.--El Paso 2006, no pet.). The statute gives people the opportunity to have all records of an
arrest expunged provided certain requirements are met. Id.; Tex.Code Crim.Proc.Ann. art. 55.01
(Vernon 2006). All provisions in a statutory cause of action are mandatory and exclusive and all
conditions must be met before a person is entitled to expunction. In re C.V., 214 S.W.3d at 44. A
statutory expunction proceeding is civil rather than criminal in nature, and the petitioner bears
the burden of proving compliance with the statute. Id. Article 55.01 provides, in pertinent part
(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) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been
presented against the person for an offense arising out of the transaction for which the person
was arrested or, if an indictment or information charging the person with commission of a felony
was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under
Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the
presentment had been made because of mistake, false information, or other similar reason
indicating absence of probable cause at the time of the dismissal to believe the person
committed the offense or because it was void;
(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; and
(C) the person has not been convicted of a felony in the five years preceding the date of the
arrest.
Tex.Code Crim.Proc.Ann. art. 55.01(a)(2).
08-1014 IN THE MATTER OF THE EXPUNCTION OF E.R.W.; from Pecos County; 8th district
(08-07-00067-CV, ___ SW3d ___, 10-23-08)
The right to expunction is a statutory privilege. In re Expunction of C.V., 214 S.W.3d 43, 44 (Tex.
App.--El Paso 2006, no pet.). The statute gives people the opportunity to have all records of an
arrest expunged provided certain requirements are met. Id.; Tex.Code Crim.Proc.Ann. art. 55.01
(Vernon 2006). All provisions in a statutory cause of action are mandatory and exclusive and all
conditions must be met before a person is entitled to expunction. In re C.V., 214 S.W.3d at 44. A
statutory expunction proceeding is civil rather than criminal in nature, and the petitioner bears
the burden of proving compliance with the statute. Id. Article 55.01 provides, in pertinent part:
(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) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been
presented against the person for an offense arising out of the transaction for which the person
was arrested or, if an indictment or information charging the person with commission of a felony
was presented, the indictment or information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under
Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the
presentment had been made because of mistake, false information, or other similar reason
indicating absence of probable cause at the time of the dismissal to believe the person
committed the offense or because it was void;
(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; and
(C) the person has not been convicted of a felony in the five years preceding the date of the
arrest.
Tex.Code Crim.Proc.Ann. art. 55.01(a)(2).
08-0407
PAIGE LOUIS BENNER A/K/A PAGE LOUIS MOLISH v. THE STATE OF TEXAS; from Tarrant
County; 2nd district
(02-07-00271-CV, ___ SW3d ___, 05-01-08, pet denied Aug. 2008)(denial of expunction)
Appellant Paige Louis Benner a/k/a Paige Louis Molish appeals the trial court=s order denying
his request for an expunction. In two issues, appellant argues that the trial court erred by not
holding a hearing on his motion for expunction and by not granting him an expunction. We affirm.
In his second issue, appellant argues that the trial court erred by denying his motion for
expunction. The State, however, argues that expunction is prohibited under article 55.01(c),
which provides that the trial court may not expunge an arrest or charged offense, even if it
resulted in an acquittal, if the offense arose out of one criminal episode, and the defendant was
convicted of or remains subject to prosecution for at least one other offense occurring during the
same criminal episode.[2] Tex. Code Crim. Proc. Ann. art. 55.01(c); Addicks v. State, No. 03-06-
00114-CV, 2007 WL 844872, at *2 (Tex. App.- Austin Mar. 21, 2007, no pet.) (mem. op., not
designated for publication).
Here, appellant was arrested for, but not charged with, kidnaping. In his subsequent trial for
burglary with the intent to commit kidnaping, which was one count in the indictment, the jury
found appellant not guilty of that offense and instead convicted him for the offense of aggravated
assault with a deadly weapon. Because the kidnaping arrest, the subsequent charge of burglary
with intent to commit kidnaping, and the conviction for the offense of aggravated assault with a
deadly weapon arose from the same facts and thus the same criminal episode, article 55.01(c)
bars an expunction under these circumstances. See Tex. Code Crim. Proc. Ann. art. 55.01(c);
Addicks, 2007 WL 844872, at *2. Because appellant did not meet his burden to show that he is
entitled to an expunction under article 55.01, the trial court did not abuse its discretion in refusing
his request for an expunction. See Tex. Code Crim. Proc. Ann. art. 55.01(c). We overrule
appellant=s second issue.
08-0455
EX PARTE GARY HAMPTON; from Dallas County; 5th district (05-07-00523-CV, ___ SW3d ___,
03-26-08, pet. denied Sp. 208) (expunction denied)
The right to expunction is neither a common law nor a constitutional right; rather, it exists as a
statutory privilege which is granted and can be limited by the Legislature. Bargas v. State, 164 S.
W.3d 763, 771 (Tex. App.-Corpus Christi 2005, no pet.); McCarroll v. Tex. Dep't of Pub. Safety,
86 S.W.3d 376, 378 (Tex. App.-Fort Worth 2002, no pet.). Under article 55.01 of the Texas Code
of Criminal Procedure, a person who has been placed under a custodial or noncustodial arrest
for commission of a felony or misdemeanor offense is entitled to have all records and files
relating to the arrest expunged if the person meets certain statutory requirements. See Tex.
Code Crim. Proc. Ann. art. 55.01(a) (Vernon 2006). A statutory expunction proceeding is civil
rather than criminal in nature, and the burden of proving compliance with the statutory conditions
rests with the petitioner. Houston Police Dep't v. Berkowitz, 95 S.W.3d 457, 460 (Tex. App.-
Houston [1st Dist.] 2002, pet. denied). All of the statutory provisions are mandatory and
exclusive, and a person is entitled to expunction only when all statutory conditions have been
met. In re Wilson, 932 S.W.2d 263, 266 (Tex. App.-El Paso 1996, no writ).
Here, appellant has not met his burden of showing he met the statutory conditions for expunction
of the records that relate to his convictions. Appellant was neither acquitted by the trial court nor
convicted and subsequently pardoned. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(1). Further,
the indictments were neither quashed nor dismissed. See id. art. 55.01(a)(2). Appellant, who
pleaded guilty to felony forgery in trial court cause number C74-5289-PQ and was found guilty of
felony forgery in trial court cause numbers F83-10873-R and F83-10874-R, and was sentenced
to imprisonment in each case, is not entitled to obtain any relief under the expungement statute
as a matter of law. See Harris County Dist. Attorney's Office v. D.W.B., 860 S.W.2d 719, 721
(Tex. App.-Houston [1st Dist.] 1993, no writ). Therefore, the trial court did not err in granting the
State's motion for summary judgment.
Also see:
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