                               Fourth Court of Appeals
                                      San Antonio, Texas
                                 MEMORANDUM OPINION
                                         No. 04-17-00059-CV

                                 EX PARTE James Kenneth CURLL

                     From the 166th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CI08228
                             Honorable Richard Price, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Rebeca C. Martinez, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: March 28, 2018

REVERSED AND RENDERED

           Appellant Texas Department of Public Safety appeals the trial court’s grant of an

expunction of James Kenneth Curll’s arrest for assault bodily injury-married. Because Curll failed

to prove the statutory requirements of Texas Code of Criminal Procedure article 55.01(a), we

reverse the trial court’s order granting the petition for expunction.

                                       FACTUAL BACKGROUND

           On April 27, 2014, Curll was arrested for assault bodily injury-married and driving while

intoxicated. On May 5, 2014, Curll was charged by information No. 457859 with assault bodily

injury-married and by information No. 457860 with driving while intoxicated with blood alcohol

content 0.15 or higher. On July 28, 2015, Curll entered a plea of no contest to driving while

intoxicated and was sentenced to thirty-days confinement in the Bexar County Jail and a $600.00
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fine. On the same day, the assault charge was dismissed pursuant to the State’s motion asserting

“a necessary and material witness is missing.”

       On May 13, 2016, Curll filed a petition to expunge the records associated with the assault

charge. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2) (West 2018). In his petition, Curll

averred that he was arrested and charged by complaint with assault bodily injury-married, but he

was “released from custody and no final conviction resulted nor are charges pending inasmuch as

all charges were dismissed on July 28, 2015.” On June 17, 2016, the Department filed an answer

denying that Curll was entitled to an expunction because Curll was convicted of the driving while

intoxicated as a result of the arrest. The trial court granted the petition on August 4, 2016, and this

appeal ensued.

                                       RESTRICTED APPEAL

       A restricted appeal is limited to cases in which a party can show (1) “[the party] filed notice

of the restricted appeal within six months after the judgment was signed,” (2) “[the party] was a

party to the underlying lawsuit,” (3) “[the party] did not participate in the hearing that resulted in

the judgment complained of and did not timely file any postjudgment motions or requests for

findings of fact and conclusions of law,” and (4) “error is apparent on the face of the record.” Ins.

Co. of State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam); TEX. R. APP. P.

26.1(c), 30. For purposes of a restricted appeal, “[t]he face of the record . . . consists of all the

papers on file in the appeal, including the [reporter’s record].” Norman Commc’ns v. Tex. Eastman

Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam); Flores v. Brimex Ltd. P’ship, 5 S.W.3d 816,

819 (Tex. App.—San Antonio 1999, no pet.).

A.     Filed within Six Months

       Here, the Order of Expunction was signed by the trial court on August 4, 2016, and the

Department filed its notice of restricted appeal on February 3, 2017. See TEX. R. APP. P. 26.1(c).
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Accordingly, the Department met the first requirement for raising a restricted appeal. See TEX. R.

APP. P. 30; Tex. Dep’t of Pub. Safety v. Foster, 398 S.W.3d 887, 890 (Tex. App.—Dallas 2013, no

pet.).

B.       Party to the Underlying Action

         The Department must also show that it was a party to the underlying action and that it did

not participate in the hearing that resulted in the judgment complained of, and “did not timely file

a postjudgment motion or request for findings of fact and conclusions of law.” See TEX. R. APP.

P. 30; Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004).

         “[A]n agency protesting the expunction may appeal the court’s decision in the same manner

as in other civil cases.” TEX. CODE CRIM. PROC. ANN. art. 55.02, § 3(a); accord Tex. Dep’t of Pub.

Safety v. Jacobs, 250 S.W.3d 209, 210 (Tex. App.—Dallas 2008, no pet.)). “All law enforcement

agencies [including the Texas Department of Public Safety] that may have records a petitioner

wants expunged are entitled to be represented by counsel at an expunction hearing.” Foster, 398

S.W.3d at 890 (citing TEX. CODE CRIM. PROC. ANN. art. 55.02, § 2(c–1); accord Jacobs, 250

S.W.3d at 210.

         Curll’s petition was filed on May 13, 2016. The Department filed an answer on June 17,

2016. Although the District Attorney’s office agreed to the expunction, the Department did not

file any such waiver. The Department was a party, but it did not participate in person or through

counsel at the hearing or file any post-judgment motions. The Department thus fulfilled the

requirement set forth in Rule 30. See TEX. R. APP. P. 30; Foster, 398 S.W.3d at 890.

         Because the Department timely filed its notice of appeal, and met the requirement for

raising a restricted appeal, we turn to whether error is apparent on the face of the record. See TEX.

R. APP. P. 30; Foster, 398 S.W.3d at 890.



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                                   PETITION FOR EXPUNCTION

A.     Standard of Review

       An appellate court usually reviews a trial court’s ruling on a petition for expunction under

an abuse of discretion standard. Ex parte Green, 373 S.W.3d 111, 113 (Tex. App.—San Antonio

2012, no pet.). However, “[t]o the extent a ruling on expunction turns on a question of law, we

review the ruling de novo because ‘[a] trial court has no “discretion” in determining what the law

is or applying the law to the facts.’” Id. (second alteration in original) (quoting Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992)). Statutory construction is a question of law. City of Rockwall

v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008); City of San Antonio v. Caruso, 350 S.W.3d 247, 250

(Tex. App.—San Antonio 2011, pet. denied).

       When construing statutory language, our primary objective is to “ascertain and give effect

to the Legislature’s intent.” Caruso, 350 S.W.3d at 250; accord Hughes, 246 S.W.3d at 625.

“Words and phrases that have acquired a technical or particular meaning, whether by legislative

definition or otherwise, shall be construed accordingly.” TEX. GOV’T CODE ANN. § 311.011(b)

(West 2013); accord Hughes, 246 S.W.3d at 625. “Otherwise, we construe the statute’s words

according to their plain and common meaning, unless a contrary intention is apparent from the

context, or unless such a construction leads to absurd results.” Hughes, 246 S.W.3d at 625–26

(citations omitted); accord Caruso, 350 S.W.3d at 250. In construing the statutory language, we

read the statute as a whole and interpret it so as to give effect to every part, and we presume the

legislature intended a just and reasonable result. See TEX. GOV’T CODE ANN. § 311.021; Caruso,

350 S.W.3d at 250.

B.       Texas Code of Criminal Procedure Article 55.01

       Although provided for in the Texas Code of Criminal Procedure, “[a]n expunction

proceeding is civil rather than criminal in nature.” Ex parte Green, 373 S.W.3d at 113 (citing Tex.
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Dep’t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no

pet.)). Expunction is a statutory privilege, not a constitutional or common-law right; therefore,

Curll is not entitled to the expunction remedy absent proof he met all the requirements set forth in

article 55.01. See Ex parte Green, 373 S.W.3d at 113; T.C.R. v. Bell Cnty. Dist. Attorney’s Office,

305 S.W.3d 661, 663 (Tex. App.—Austin 2009, no pet.); J.H.J., 274 S.W.3d at 806. Each statutory

provision is mandatory and a petitioner is entitled to expunction only upon a showing that each

and every statutory condition has been met. J.H.J., 274 S.W.3d at 806. “The trial court must

strictly comply with the statutory requirements, and it has no equitable power to expand the

remedy’s availability beyond what the legislature has provided.” T.C.R., 305 S.W.3d at 663;

accord J.H.J., 274 S.W.3d at 806.

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

procedures to expunge an individual’s criminal record. See TEX. CODE CRIM. PROC. ANN.

art. 55.01. Curll alleged in his petition that he was entitled to expunction of his assault charge

because he was arrested, released, and never convicted of the offense. Therefore, to prevail on his

petition, he was required to prove the following:

       (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 [Article 42.12] for the offense, unless the
               offense is a Class C misdemeanor. . . .

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); accord J.H.J., 274 S.W.3d at 806.

D.      Analysis

       Curll’s charges for DWI and assault stem from the same arrest. The record contains a copy

of the judgment whereby Curll entered a plea on the DWI offense and was sentenced to thirty-
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days’ confinement in the Bexar County Jail and a fine of $600.00. The record also contains a copy

of the State’s motion to dismiss, filed on July 28, 2015, requesting the assault-bodily injury-

married charge be dismissed because “a necessary and material witness is missing.”

       In its first issue, the Department contends the trial court erred in granting Curll’s petition

because he did not meet the statutory requirements to have “all records and files relating to [his]

‘arrest’ expunged.” See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). The Department argues

the statute is arrest-based and does not allow records of each individual offense for which a

defendant is arrested to be expunged. Because Curll was placed on court-ordered community

supervision for one of the offenses for which he was arrested, the Department contends Curll is

not entitled to have records and files relating to the arrest expunged.

       In Texas Department of Public Safety v. Ryerson, No. 04–16–00276–CV, 2016 WL

7445063, at *2–3 (Tex. App.—San Antonio Dec. 28, 2016, pet. filed) (mem. op.), this court

reiterated that the expunction statute is arrest-based. More specifically, we held that the facts of

the cases “have no effect on the application of the expunction statute. It is a bright line rule.” Id.

at *3. Curll was convicted and confined for the DWI charge, one of the offenses for which he was

arrested at the same time that he was arrested on the assault charge. The Department thus argues

Curll is not entitled to have “all records and files relating to the arrest expunged” as to any of the

offenses with which he was charged stemming from the same arrest as the DWI. See id. at *2–3.

We agree.

       Because the right to an expunction is rooted in the arrest, and not the offense, Curll failed

to prove his entitlement to expunction on the misdemeanor charge of assault bodily injury-married.

The trial court erred in granting his petition for expunction of the corresponding records and files.

See Ex parte Green, 373 S.W.3d at 113; J.H.J., 274 S.W.3d at 806.



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                                           CONCLUSION

       Article 55.01 of the Texas Code of Criminal Procedure does not make allowances for the

expunction of individual offenses stemming from the same arrest. Thus, the record does not

support Curll’s assertion that he was entitled to expunction of the records pertaining to the assault

charge and the trial court erred in granting the petition for expunction. Accordingly, we reverse

the trial court’s order and render judgment denying Appellee James Kenneth Curll’s petition for

expunction.

                                                  Patricia O. Alvarez, Justice




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