                                       In The

                                Court of Appeals
                     Ninth District of Texas at Beaumont
                                ________________

                               NO. 09-14-00042-CV
                                ________________

          TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

                                          V.

                          K.J.H., Appellee
__________________________________________________________________

                On Appeal from the 410th District Court
                     Montgomery County, Texas
                   Trial Cause No. 13-06-06780-CV
__________________________________________________________________

                           MEMORANDUM OPINION

      In a single issue, appellant Texas Department of Public Safety (“DPS”)

challenges the trial court’s order granting K.J.H.’s request for expunction. We

affirm the trial court’s judgment in part and reverse and render in part.

      K.J.H. filed a petition for expunction of all criminal records arising from the

following arrests: (1) April 20, 2007, for possession of a controlled substance,

possession of marijuana, public intoxication, and possession of a dangerous drug;

(2) February 17, 2010, for driving while intoxicated; and (3) August 10, 2010, for

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misdemeanor driving while intoxicated. According to K.J.H., the possession

charges were not filed, the public intoxication charge was dismissed, the August 10

DWI was dismissed, and the February 17 arrest “never resulted in a final

conviction.” DPS filed an answer, in which it contended that K.J.H. was ineligible

for expunction of records pertaining to the August 10 arrest “because individual

charges cannot be expunged when the arrest resulted in a conviction for another

offense.” Specifically, DPS argued that the August 10 arrest led to K.J.H. pleading

guilty to obstructing a highway or passageway.

      On October 17, 2013, the trial judge signed an order denying K.J.H.’s

petition for expunction in its entirety. K.J.H. then filed a motion for new trial, in

which she contended the trial court abused its discretion by entering an order “that

is contrary to controlling case law.” In addition, K.J.H. argued that no entity had

objected to expunction of all records stemming from the April 20 arrest. The

Montgomery County District Attorney’s office (“the DA’s office”) filed a

response, in which it agreed that K.J.H. was entitled to expunction of all records of

the April 20, 2007, arrest, and should be “granted a partial expunction of records of

her arrest on August 10, 2010.” The DA’s office contended that the August 10

arrest resulted in prosecution of K.J.H. for driving while intoxicated, but that

charge was dismissed and K.J.H. was subsequently charged with and pleaded

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guilty to the misdemeanor offense of obstructing a highway. According to the

DA’s office, K.J.H. “should be permitted to expunge the records of her DWI

prosecution,” but not the obstructing-a-highway case. The DA’s office

acknowledged the existence of a split of authority among the Courts of Appeals

concerning    whether    partial   expunctions   were    permissible   under    such

circumstances.

      The trial judge granted the motion for new trial and scheduled a hearing. At

the hearing, K.J.H. testified that as a result of the August 2010 arrest, a jury was

empaneled on the DWI charge, but the DA’s office ultimately agreed to dismiss

that charge and instead to charge K.J.H. with obstructing a highway or

passageway. 1 K.J.H. testified that she then pleaded guilty to obstructing a highway,

and the DWI charge was dismissed. K.J.H. explained that she requested expunction

of the records pertaining to all four cases that arose from the April 2007 arrest, as

well as the driving while intoxicated case from August 2010, but not the

obstructing-a-highway case. DPS’s counsel argued that the records pertaining to

the August 2010 arrest for DWI should not be expunged because K.J.H. pleaded

guilty to obstructing a highway and was convicted of that charge. After the

      1
       During K.J.H.’s testimony, counsel and the trial court clarified that the
August 2010 arrest was by warrant and was for the same DWI offense for which
K.J.H. had previously been arrested in February 2010.
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hearing, the trial judge signed an order expunging the records of each arrest except

those pertaining to the conviction for obstructing a highway.

      In its sole appellate issue, DPS argues that the trial court erred by signing an

order expunging the records of K.J.H.’s DWI arrest that resulted in a subsequent

conviction for obstructing a highway. K.J.H. has not alleged, and the record does

not establish, that she was acquitted or pardoned for the misdemeanor DWI charge,

as required for expunction under article 55.01(a)(1)(A) or (b)(1). See Tex. Code

Crim. Proc. Ann. art. 55.01(a)(1)(A), (B)(2)(A)(i)(b) (West Supp. 2013) (A person

who has been arrested is entitled to expunction of all records pertaining to the

arrest if the person is tried and either acquitted or convicted but subsequently

pardoned, or if at least one year has elapsed from the date of the arrest for a Class

B or A misdemeanor and the person was not charged with a felony arising from the

same transaction.); see also Ringo v. State, No. 09-13-00456-CV, 2014 WL

1285140, at *1 (Tex. App.—Beaumont Mar. 27, 2014, no pet.) (mem. op.).

      K.J.H.’s testimony demonstrated that the indictment for misdemeanor DWI,

for which she was arrested on August 10, 2010, was dismissed because K.J.H.

pleaded guilty to obstructing a highway and was sentenced in that case. K.J.H.

correctly notes that there is a split among the Courts of Appeals regarding whether

the expunction statute is “arrest” or “charge” based. However, this Court’s

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precedent is clear. “[E]xpunction is unavailable if the offense resulted in any final

conviction.” Ringo, 2014 WL 1285140, at *2 (citing In re J.O., 353 S.W.3d 291,

293-94 (Tex. App.—El Paso 2011, no pet.)) (emphasis added). Because the charge

resulted in a final conviction, K.J.H. is not entitled to an expunction. See id.

Accordingly, we sustain DPS’s issue. We affirm the trial court’s expunction order

as to K.J.H.’s arrests of April 20, 2007, and February 17, 2010, and we reverse the

trial court’s order as to the arrest of August 10, 2010, and render judgment that

K.J.H. is not entitled to expunction of records pertaining to the arrest of August 10,

2010.

        AFFIRMED IN PART; REVERSED AND RENDERED IN PART.



                                        ________________________________
                                               STEVE McKEITHEN
                                                    Chief Justice



Submitted on July 31, 2014
Opinion Delivered September 4, 2014

Before McKeithen, C.J., Kreger and Johnson, JJ.




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