                            NUMBER 13-16-00522-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

                     EX PARTE CARLOS DE LA GARZA


                   On appeal from the 138th District Court
                        of Cameron County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
            Memorandum Opinion by Justice Benavides

      By his sole issue, appellant Carlos De La Garza challenges the trial court’s denial

of his motion to expunge his arrest for assault, family violence, a Class A misdemeanor.

See TEX. PENAL CODE ANN. § 22.01      (West, Westlaw through 2017 1st C.S.); see TEX.

CODE CRIM. PROC. ANN. § 55.01 (West, Westlaw through 2017 1st C.S). We affirm.

                                 I.     BACKGROUND

      De La Garza was arrested for assault, family violence, and disorderly conduct, a

Class C misdemeanor, on July 3, 2012.      See TEX. PENAL CODE ANN. §§ 22.01, 42.01
(West, Westlaw through 2017 1st C.S.). On March 5, 2015, he pleaded guilty to the

disorderly conduct in exchange for the dismissal of the assault charge.      See id. Both

charges arose out of the same arrest.

          On September 11, 2015, De La Garza filed his motion to expunge the assault

arrest.    The trial court held a hearing on the motion to expunge, and after both De La

Garza and the State submitted post-hearing briefs on the issue, it denied the motion to

expunge.       The trial court reasoned that because the assault was dismissed pursuant to

a plea agreement, De La Garza was not entitled to the expunction.     This appeal followed.

                                     II.    EXPUNCTION

          By one issue, De La Garza argues he was entitled to an expunction of his assault

arrest which was subsequently dismissed.

          A.    Standard of Review

          We review a trial court’s ruling on a petition for expunction for an abuse of

discretion.     Tex. Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624 (Tex. App.—Austin

2014, pet. denied) (en banc).       A trial court abuses its discretion when it renders a

decision that is (1) arbitrary, unreasonable, or without reference to guiding rules or

principles, or (2) without supporting evidence.      Id.   However, to the extent that the

court’s ruling on an expunction petition turns on a question of law, we review that ruling

de novo because the trial court has no discretion in determining what the law is or applying

the law to the facts.    Id.; Tex. Dep’t of Pub. Safety v. Ibarra, 444 S.W.3d 735, 738 (Tex.

App.—Corpus Christi 2014, pet. denied).

          B.    Applicable Law

          The remedy of expunction permits a person who has been arrested for the

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commission of a criminal offense and released, and who meets certain other conditions,

to have all records and files related to that arrest removed from the government’s records.

See TEX. CODE CRIM. PROC. ANN. art. 55.01; see also Ex Parte Vega, 510 S.W.3d 544,

548 (Tex. App.—Corpus Christi 2016, no pet.). Although the statute is codified in the

Texas Code of Criminal Procedure, an expunction proceeding is civil in nature.       Vega,

510 S.W.3d at 548. As in other civil proceedings, it is the petitioner’s burden to show

that all the statutory conditions have been met.    Id. And because expunction is not a

right but a statutory privilege, each of the statutory conditions for expunction are

mandatory and exclusive.     Id.   It is an abuse of discretion for the trial court to order

expunction when the statutory conditions have not been met because the court

possesses “no equitable power to permit expunction where it is not allowed” by statute.

Id.

       De La Garza’s issue requires us to interpret the expunction statute. Statutory

interpretation is a question of law that we also review de novo. City of Rockwall v.

Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Our goal in interpreting a statute is to give

effect to the legislature's intent as expressed by the language in the statute. Id. We

assume that the statute's words bear their “plain and common meaning” unless the

Legislature provided a definition or another meaning that is apparent from the context.

Id. at 625–26. We consider the statute as a whole, reading each word and phrase in

context, and attempt to give effect to every part. Mid–Century Ins. Co. of Tex. v. Ademaj,

243 S.W.3d 618, 621 (Tex. 2007). If the meaning of statutory language is clear and

unambiguous, we may not resort to rules of construction or extrinsic aids.          City of

Rockwall, 246 S.W.3d at 626. However, we may also consider the object the Legislature

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sought to attain by enacting the statute. Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83,

87 (Tex. 2006) (citing TEX. GOV'T CODE ANN. § 311.023(1) (West, Westlaw through 2017

1st C.S.)).

       Article 55.01(a) of the expunction statute governs a petitioner’s right to expunction

and provides, in relevant part, that:

       (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, provided that:

                     (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
                            charging the person with the commission of a
                            misdemeanor offense . . .

                            (i)     has not been presented against a person at any
                                    time following the arrest . . .

                                    . . . or

                            (ii)    if presented at any time following the arrest, was
                                    dismissed or quashed, and the court finds that
                                    the indictment or information was dismissed or
                                    quashed because the person completed a
                                    pretrial intervention program authorized under
                                    Section 76.011, Government Code, 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 the
                                    indictment or information was void; or

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                     (B)    prosecution of the person for the offense for which the
                            person was arrested is no longer possible because the
                            limitations period had expired.

TEX. CODE CRIM. PROC. ANN. art. 55.01(a).

       C.      Discussion

       To establish entitlement to expunction based on dismissal under article

55.01(a)(2), De La Garza was required to prove that:      (1) he has been released; (2) the

charge, if any, has not resulted in a final conviction; (3) the charge, if any, is no longer

pending; and (4) there was no court-ordered community supervision under article 42.12

of the Texas Code of Criminal Procedure.         See id. art. 55.01(a)(2)(A); see also Tex.

Dep’t. of Pub. Safety v. G.B.E., 459 S.W.3d 622, 626 (Tex. App.—Austin 2014, pet. ref’d).

       De La Garza argues that the plea to a Class C misdemeanor does not prevent

expunction of the assault charge because it was not a lesser-included offense of the

assault.    The State argues expunction is prevented because the Class C disorderly

conduct arose out of the same criminal transaction and is therefore barred.

       Article 55.01(a) begins by providing that “[a] person who has been placed under a

custodial or noncustodial arrest” may “have all records and files relating to the arrest”

expunged if certain conditions are met.          TEX. CODE CRIM. PROC. ANN. art. 55.01

(emphasis added). The statutory language contemplates expunging all of the records

related to an arrest but makes no provision for expunging records related to a particular

charge that resulted from an arrest.   See id.; see also Ex Parte Vega, 510 S.W.3d at 550

(interpreting article 55.01(a) in the same manner); G.B.E., 459 S.W.3d at 629.        If the

Legislature wished to permit persons to expunge records related to a particular charge


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resulting from an arrest without expunging all records of the arrest itself, we presume that

it would have included language with that meaning in the statute.        See S.J. v. State, 438

S.W.3d 838, 843 (Tex.App.–Fort Worth 2014, no pet.); see also Ex parte S.C., 305

S.W.3d 258, 263 (Tex.App.–Houston [14th Dist.] 2009, no pet.) (holding that an

expunction order was overbroad because the Legislature did not include language

allowing a person to expunge records “relating to the investigation” or “resulting in” or

“contributing to” an arrest). Furthermore, the statute does not make the availability of

expunction turn on whether a charge was filed following the arrest, but requires that “the

charge, if any” is not still pending and did not have certain results.    See TEX. CODE CRIM.

PROC. ANN. art. 55.01(a)(2); see also S.J., 438 S.W.3d at 843.       Viewing the statute as a

whole and keeping in mind its general purpose of permitting the expunction of wrongful

arrests, we conclude that a person is “not entitled to have any arrest records expunged

under article 55.01(a)(2) when (1) one or more charges result in a conviction (for that

particular charge) and (2) any remaining charge is dismissed, but that dismissal results

in a final conviction of any charge arising from the same arrest.”       G.B.E., 459 S.W.3d at

629 (emphasis in original); see In re A.G., 417 S.W.3d 652, 655 (Tex. App.—El Paso

2013, no pet.) (reversing trial court’s grant of expunction of DWI charge, concluding that

petitioner failed to show that charge had not resulted in final conviction under current

version of article 55.01 because petitioner pleaded guilty to reckless driving).

       De La Garza was originally arrested for Class A assault and Class C disorderly

conduct.   As part of a plea agreement, he pleaded guilty to the disorderly conduct, and

the State dismissed the assault case.     Because of the events that occurred, we hold that

De La Garza failed to meet the requirements of article 55.01(a). De La Garza was not

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tried, and acquitted or pardoned.    Therefore, De La Garza did not meet the requirements

of article 55.01(a)(1). De La Garza also failed to satisfy article 55.01(a)(2) because the

record shows that, although the assault charge was dismissed, as part of his plea

agreement with the State, De La Garza was convicted of a Class C offense for disorderly

conduct. Thus, the charge resulted in a final conviction rendering De La Garza’s records

ineligible for expunction.   See Rodriguez v. State, 224 S.W.3d 783, 785 (Tex. App.—

Eastland 2007, no pet.); see also Tex. Dep’t of Pub. Safety v. Aytonk, 5 S.W.3d 787, 788

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

       We overrule De La Garza’s sole issue.

                                     III.   CONCLUSION

       We affirm the ruling of the trial court.



                                                              GINA M. BENAVIDES,
                                                              Justice



Delivered and filed the
22nd day of March, 2018.




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