by Douglas Ankney

The Supreme Court of Texas held that under Article 55.01(a)(2)(A) of the Texas Code of Criminal Procedure multiple misdemeanor offenses charged in a single arrest are eligible for expunction on an individual basis.

R.P.G.P. was arrested for a misdemeanor driving while intoxicated (“DWI”) offense. An inventory search of his vehicle uncovered a small amount of marijuana, and he was subsequently charged with misdemeanor possession. Following R.P.G.P.’s successful completion of a pretrial intervention program, the DWI charge was dismissed. He entered a no-contest plea to the possession charge, and it was dismissed after he served nine months of deferred adjudication probation.

After both charges were dismissed, R.P.G.P. moved for expunction of the DWI arrest records pursuant to Article 55.01(a)(2)(A). The State opposed expunction, arguing that arrest records cannot be expunged under Article 55.01 as to any single offense unless all charges stemming from the arrest are eligible for expunction. Since the possession charge was ineligible for expunction (R.P.G.P. had served the equivalent of court-ordered supervision for that charge), no part of the arrest record was eligible for expunction. The trial court agreed with the State and denied the motion. The court of appeals (“COA”) affirmed in a split decision, and the Texas Supreme Court granted further review.

The Court observed “[a]n expunction order allows the person arrested to ‘deny the occurrence of the arrest and [deny] the existence of the expunction order [except in a criminal proceeding]’ and prohibits governmental and private entities named in the order from releasing, maintaining, disseminating, or using expunged records and files ‘for any purpose.’ Because the remedy is a privilege defined by the Legislature, and not a constitutional or common-law right, the statutory requirements are mandatory and exclusive and cannot be equitably expanded by the courts.” Ex parte E.H., 602 S.W.3d 486 (Tex. 2020). Article 55.01(a)(2) provides: “the charge, if any, has not resulted in a final conviction.”

Use of the definite article “the” in referring to “the charge” indicates the Legislature intended to tie an arrest to a single offense under Article 55.01(a)(2), the Court reasoned. The Supreme Court reached the same result with respect to Article 55.01(a)(1) in State v. T.S.N., 547 S.W.3d 617 (Tex. 2018). There, T.S.N. was simultaneously arrested for two wholly unrelated charges. In 2013, she was arrested for assault, and during the arrest process, the officer discovered she had an outstanding warrant on a 2010 charge of theft by check. She pleaded guilty to the theft charge but went to trial on the assault and was acquitted. T.S.N. then petitioned for expungement under Article 55.01(a)(1)(A) which permits expunction if “the person is tried for the offense for which the person was arrested” and is “acquitted by the trial court,” unless “the offense ... arose out of a criminal episode ... and the person was convicted of or remains subject to prosecution for at least one other offense during the criminal episode.” The trial court granted T.S.N.’s petition, the COA affirmed, and the State appealed.

In T.S.N., as in the instant case, the State had argued that expunction was unavailable because “the overriding structure of article 55.01 uses ‘arrest’ as the unit of measurement” for expunction since the prefatory language of Article 55.01(a) stating “all records and files relating to the arrest” required an “all-or-nothing approach to multiple-offense arrests.” The State had also argued that parsing arrest records to expunge some charges while leaving intact other portions for other offenses would be overly cumbersome. In rejecting the State’s arguments and affirming the lower courts in T.S.N., the Supreme Court explained that the term “the offense” links arrest records to a single offense and permits partial expunction as to individual offenses.

Further, the Court explained subarticle (a)(2)(A) of the statute demands the same result: “(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information [1] charging the person with the commission of a misdemeanor offense based on the person’s arrest or [2] charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested….”

In subarticle (a)(2)(A), the words “the offense” directly refer back to “the offense” in 55.01(a)(2), according to the Court. Therefore, subarticle (a)(2)(A) contrasts an indictment “charging the person with the commission of a misdemeanor offense based on the person’s arrest” with an indictment “charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested.” That is, “a” misdemeanor is singular whereas “any” felony is plural. A misdemeanor offense “based on the person’s arrest” requires an offense-based application, but “any felony offense arising out of the same transaction for which the person was arrested” requires an arrest-based application, the Court determined.

Thus, the Court concluded that partial expunction is permitted by the statute where a single arrest results in multiple misdemeanor charges.

Accordingly, the Court reversed the COA’s judgment and remanded to the trial court to grant R.P.G.P.’s petition and render an expunction order with regard to the DWI arrest records. See: Ex parte R.P.G.P., 623 S.W.3d 313 (Tex. 2021). 

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