                               Fourth Court of Appeals
                                      San Antonio, Texas
                                                 OPINION
                                         No. 04-12-00576-CV

                         TEXAS DEPARTMENT OF PUBLIC SAFETY,
                                      Appellant

                                                  v.
                                              Timothy
                                          Timothy DICKEN,
                                              Appellee

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2012-CI-10924
                            Honorable Antonia Arteaga, Judge Presiding

Opinion by:       Patricia O. Alvarez, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Patricia O. Alvarez, Justice

Delivered and Filed: October 2, 2013

REVERSED AND RENDERED

           The Texas Department of Public Safety appeals the expunction of all records and files

relating to Appellee Timothy Dicken’s offense of possession of a controlled substance. On appeal,

the Department argues the trial court erred in interpreting the expunction statute to allow the

destruction of records of individual offenses, as opposed to records of the arrest. Because Dicken

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

we reverse the order of the trial court and render judgment denying Dicken’s petition to expunge.
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                                         BACKGROUND

       On June 5, 2009, Timothy Dicken was arrested for felony possession of a controlled

substance and misdemeanor driving while intoxicated (DWI). On June 9, 2009, the State formally

charged Dicken with the misdemeanor DWI and on June 22, 2009, Dicken was charged by

indictment with felony possession. Approximately two months later, on August 13, 2009, Dicken

entered a plea of no contest to the DWI charge and was sentenced to 180 days of confinement,

suspended and probated for a term of eighteen months. The plea bargain also required Dicken (1)

to perform sixty hours of community service restitution, (2) to participate in DWI education and

Alcoholics Anonymous, and (3) to install an ignition interlock system on his vehicle for a term of

nine months. The plea documents indicate that cause number 2009CR7758 (the felony possession)

was taken into consideration as part of Dicken’s plea.

       On July 6, 2012, Dicken filed a petition to expunge his charge of possession of a controlled

substance. See TEX. CODE. CRIM. PROC. ANN. art. 55.01(a)(2) (West Supp. 2012). The Texas

Department of Public Safety and the Bexar County Criminal District Attorney filed answers and

general denials opposing Dicken’s petition. The Department reasons that because Dicken entered

a plea of no contest, the court took the felony possession into consideration for the plea, and he

served a term of probation for the DWI offense pursuant to the same arrest, Dicken was not eligible

for expunction. The trial court granted Dicken’s petition for expunction and entered an order of

expunction with regard to the felony possession of a controlled substance charge. The Department

appeals.

                                     STANDARD OF REVIEW

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

applying the law to the facts.’” Id. (first 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; see

also TEX. GOV’T CODE ANN. § 312.005 (West 2013). “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); see 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. We may also consider legislative history

regardless of whether the statute is ambiguous. TEX. GOV’T CODE ANN. § 311.023(3); Caruso,

350 S.W.3d at 250.

                                      EXPUNCTION STATUTE

       Dicken argues article 55.01 is an “offense based” statute whereby offenses are divisible for

purposes of expunction. See generally TEX. CODE CRIM. PROC. ANN. art. 55.01. He contends that

because the felony possession charge was dismissed, he is entitled to an expunction of that charge.

The Department, on the other hand, argues that we should take an “arrest-based” approach. See

generally id. The Department maintains that Dicken was not entitled to expunction of the felony
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possession charge because (1) the trial court took the felony charge into consideration when it

placed Dicken on community supervision for the DWI offense, and (2) the DWI charge arose out

of the same conduct that gave rise to the arrest for possession. Accordingly, Dicken was not

eligible to have the records of his felonious possession expunged under article 55.01(a)(2). We

agree with the Department.

A.     Expunction: 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.

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, the

petitioner is not entitled to the expunction remedy unless he meets all of article 55.01’s

requirements. 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 811. “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 663–64;

accord J.H.J., 274 S.W.3d at 806. Conversely, if the petitioner fully complies with article

55.01(a), the trial court must grant the expunction petition. T.C.R., 305 S.W.3d at 664.

       The relevant portion of article 55.01 of the Texas Code of Criminal Procedure provides

       (a) A person who has been placed under a custodial or noncustodial arrest for
       commission of either a felony or misdemeanor is entitled to have all records and
       files relating to the arrest expunged if:
           ...
           (2) the person has been released and the charge, if any, has not resulted in a
           final conviction and is no longer pending and there was no court-ordered


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           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 (emphasis added).

B.     Analysis

       Here, Dicken was arrested and charged by separate charging instrument for the offenses of

felony possession and DWI. Dicken entered a plea of no contest to the DWI charge. As a result

of that plea, and his agreement to be placed on community supervision for a period of eighteen

months, the felony possession charge was dismissed.

       The plain language reading of article 55.01(a)(2) clearly requires a court to expunge all

records and files relating to the arrest when there was no final conviction and no court–ordered

community supervision. See id. The statute does not address or make allowances for expunction

of individual offenses stemming from an arrest. See T.C.R., 305 S.W.3d at 663–64 (requiring strict

compliance with the statutory provisions); J.H.J., 274 S.W.3d at 806 (same). The record reflects

the trial court was under the impression “the intent the legislature had was to grant someone a

second chance.” Quite to the contrary, this court and the Texas Supreme Court, have explained

that

       [t]he legislature intended section 55.01 to permit the expunction of records of
       wrongful arrests. After the 1979 amendment, the expunction law clearly 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.”

Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991) (citations omitted)

(quoting Tex. Dep’t of Pub. Safety v. Failla, 619 S.W.2d 215, 217 (Tex. Civ. App.—Texarkana

1981, no writ)) (discussing Act of June 13, 1979, 66th Leg., R.S., ch. 604, § 1, 1979 Tex. Gen.

Laws 1333 (amended 1989) (current version at TEX. CODE CRIM. PROC. ANN. art 55.01)); accord

Ex Parte Green, 373 S.W.3d at 115; Tex. Dep’t of Pub. Safety v. Aytonk, 5 S.W.3d 787, 788 (Tex.


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App.—San Antonio 1999, no pet.). The J.T.S. court further reiterated the importance of the public

interest in maintaining arrest records for use in any subsequent punishment proceedings, including

judicial decisions regarding any subsequent applications for probation. See J.T.S., 807 S.W.2d at

574.

       The facts in the present case are remarkably similar to the facts the Austin Court of Appeals

faced in Travis County District Attorney v. M.M., 354 S.W.3d 920 (Tex. App.—Austin 2011, no

pet.). M.M. was arrested and charged with DWI, resisting arrest, and assault of a public servant.

Id. at 921–22. As part of a negotiated plea bargain, M.M. admitted guilt to the charge of assault

of a public servant and entered a plea of no contest to the resisting arrest charge, and the district

attorney’s office abandoned the DWI charge. Id. at 922. During sentencing, M.M. requested the

trial court take the admitted assault offense into account in sentencing her for the resisting arrest

charge. Id. M.M. was sentenced to two years deferred adjudication on the assault. Id. The trial

court subsequently granted M.M.’s petition for expunction of all records and files relating to the

DWI and assault charges. Id. Like Dicken, M.M. argued “the arrest” in article 55.01(a) referred

to each charge arising from the arrest and each of the charges could be “divorced from the other

charge and individually expunged.” See id. at 924. The appellate court held to the contrary

concluding “the statute only speaks to expunging the record relating to an arrest, not individual

records relating to a charge arising from an arrest.” Id.

       In this case, we conclude Dicken failed to prove his felony possession charge was

dismissed and did not result in “court-ordered community supervision.” See TEX. CODE CRIM.

PROC. ANN. 55.01(a)(2). Although the record suggests the charge was dismissed, the record does

not contain a court ordered dismissal on the felony possession charge. Moreover, based on the

plea documents and Dicken’s pleadings, the record shows the possession charge was taken into

consideration on the sentencing for the DWI. Cf. M.M., 354 S.W.3d at 922. Because Dicken’s
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“offense was taken into consideration” under Texas Penal Code section 12.45 and the record does

not contain a notice of dismissal for the felony possession, we conclude Dicken failed to prove a

dismissal as required by article 51.01(a)(2). Cf. M.M., 354 S.W.3d at 925 (“M.M.’s culpability for

the felony assault charge was considered by the trial court in sentencing M.M. on the resisting-

arrest charge.”). Like the courts in M.M. and J.T.S. concluded, the expunction statute was not

intended to allow an individual who is arrested, and enters a plea of guilty to an offense arising

from the arrest, to expunge the arrest and all court records concerning the arrest. See J.T.S., 807

S.W.2d at 574; M.M., 354 S.W.3d at 925. By admitting his guilt to the DWI charge, Dicken also

admitted his arrest was not wrongful. See M.M., 354 S.W.3d at 926; see also J.T.S., 807 S.W.2d

at 574.

          Although Dicken argues the legislative amendments reflect a move “away from an

exclusive ‘mistake’ model of expunction to include aspects of a ‘rehabilitation’ model,” we must

strictly comply with the statutory language. See T.C.R. 305 S.W.3d at 663–64; J.H.J., 24 S.W.3d

at 806. Accordingly, Dicken failed to prove his entitlement to expunction on the felony possession

of a controlled substance charge and the trial court erred in granting the petition for expunction of

the corresponding records and files.

                                            CONCLUSION

          Because the trial court erred in granting the petition for expunction, we reverse the trial

court’s expunction order and render judgment denying expunction of the records and files relating

to Dicken’s arrest for felony possession of a controlled substance.


                                                       Patricia O. Alvarez, Justice




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