Opinion filed May 9, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-17-00334-CV
                                  __________

        IN THE MATTER OF THE EXPUNCTION OF J.L.M.

                    On Appeal from the 142nd District Court
                            Midland County, Texas
                        Trial Court Cause No. CV53260


                     MEMORANDUM OPINION
      J.L.M. appeals the trial court’s denial of his pro se and in forma pauperis
petition for expunction of records arising out of a dismissed charge against him for
escape from custody. See TEX. PENAL CODE ANN. § 38.06 (West 2016). Appellant
contends that the trial court abused its discretion when it denied his petition because
the State dismissed the indictment for this offense. We affirm.
                                 Background Facts
      While Appellant was being held in the Midland County Jail for the offense of
manufacture or delivery of a controlled substance, he allegedly committed the
offense of escape from custody on July 21, 2016. Appellant was later indicted for
escape from custody. Pursuant to a subsequent plea agreement, Appellant pleaded
guilty to the offense of possession of a controlled substance. As a part of the plea
agreement, the charge for escape from custody was dismissed. The motion to
dismiss listed the reason for dismissal as: “The defendant was convicted in another
case.”
         Less than a year later, Appellant filed a pro se petition for expunction of
records arising out of his indictment and confinement for escape from custody.
Appellant alleged that he was entitled to an expunction under Chapter 55 of the
Texas Code of Criminal Procedure because the indictment was dismissed on
October 14, 2016. See TEX. CODE CRIM. PROC. ANN. ch. 55 (West 2018).
         The State filed an answer opposing Appellant’s motion seeking expunction.
The State asserted that the indictment was dismissed as a result of a plea agreement
with the State and not because the indictment was based upon “mistake, false
information, or any other similar reason indicating absence of probable cause” as
required under the Texas Code of Criminal Procedure. The trial court denied
Appellant’s petition for expunction in a written order without holding a hearing on
the matter. This pro se appeal followed.
                                         Analysis
         In a single issue, Appellant contends that the trial court abused its discretion
when it denied his petition for expunction. Appellant asserts that he was entitled to
an expunction based on the dismissal of the indictment for escape from custody.
Appellant argues that Article 55.01 does not require any particular ground for
dismissal to satisfy the requirement that the indictment has been dismissed. We
disagree.
         We review a trial court’s ruling on a petition for expunction under the abuse
of discretion standard.       State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018);
Rodriguez v. State, 224 S.W.3d 783, 784 (Tex. App.—Eastland 2007, no pet.).
“Under the abuse of discretion standard, appellate courts afford no deference to the
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trial court’s legal determinations because a court has no discretion in deciding what
the law is or in applying it to the facts.” T.S.N., 547 S.W.3d at 620 (citing In re
Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009); Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992)). “Thus, a trial court’s legal conclusions are reviewed
de novo.” Id. (citing State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996)). As was the case
in T.S.N., the trial court’s ruling on the expunction request hinged on a question of
law because it required the interpretation of Article 55.01; therefore, it is subject to
de novo review. See id. (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625–
26 (Tex. 2008)).
      “The purpose of an expunction statute is to permit the expunction of records
of wrongful arrests.” In Expunction of R.H., 510 S.W.3d 143, 145 (Tex. App.—El
Paso 2016, no pet.) (citing Harris Cty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d
572, 574 (Tex. 1991); Travis Cty. Dist. Attorney v. M.M., 354 S.W.3d 920, 926 (Tex.
App.—Austin 2011, no pet.)).        Article 55.01 of the Texas Code of Criminal
Procedure contains the requirements for expunction of criminal records. “A person
is not entitled to expunction until all of the statutory conditions are met.” T.S.N.,
547 S.W.3d at 620 (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.)).
      Appellant sought expunction pursuant to subsection (a)(2)(A)(ii) of
Article 55.01. The version of Article 55.01 in effect both at the time of Appellant’s
offense and when he filed his application for expunction, provided as follows:
             (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:

             ....



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             (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 based on the person’s arrest or charging the
      person with the commission of any felony offense arising out of the
      same transaction for which the person was arrested:
             ....
            (ii) if [an indictment or information is] 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.
Act of May 27, 2011, 82nd Leg., R.S., ch. 894, § 1, sec. 55.01, 2011 Tex. Gen. Laws
2275–76. Appellant asserts that the reason why a case is dismissed has no bearing
on an expunction under Article 55.01. We disagree. By the express terms of the
statute, the legislature intended to limit expunction after the dismissal of a case to
only those situations provided in Article 55.01(a)(2). In Expunction of R.H., 510
S.W.3d at 147.
      The El Paso Court of Appeals addressed an analogous situation in In
Expunction of R.H. The applicant in that case had two charges of aggravated assault
with a deadly weapon dismissed as a part of a plea agreement wherein he pleaded
guilty to nine counts of criminal mischief. Id. at 144–45. El Paso County asserted
that the applicant was not entitled to expunction because the charges were dismissed
as a result of a plea bargain with the State and not because the indictment was based
                                          4
upon mistake, false information, or other reason indicating absence of probable
cause, as required under the Texas Code of Criminal Procedure. Id. at 145. The El
Paso Court of Appeals agreed with the County’s contention based upon the express
terms of Article 55.01(a)(2). Id. at 145–47; see Tex. Dep’t of Pub. Safety v. J.A.M.,
No. 01-16-00814-CV, 2017 WL 1629444, at *2–3 (Tex. App.—Houston [1st Dist.]
May 2, 2017, no pet.) (mem. op.) (citing In Expunction of R.H. with approval); Ex
parte Lopez, No. 07-03-0413-CV, 2004 WL 351135, at *1–2 (Tex. App.—Amarillo
Feb. 25, 2004, pet. denied) (mem. op.) (dealing with an escape charge dismissed as
a result of a plea agreement on another charge).
      We agree with the reasoning of the El Paso Court of Appeals.
Article 55.01(a)(2)(A)(ii) sets out the parameters for an expunction when a charge
has been dismissed after the person has been indicted. As quoted above, the
applicable version of Article 55.01(a)(2)(A)(ii) required a finding by the trial court:
      [T]hat the indictment or information was dismissed or quashed 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.
See Act of May 27, 2011, 82nd Leg., R.S., ch. 894, § 1, sec. 55.01, 2011 Tex. Gen.
Laws 2275–76. Because Appellant’s charge for escape from custody was dismissed
as a result of a plea agreement on another charge, the dismissal was not made
because of one of the reasons listed in Article 55.01(a)(2)(A)(ii). Simply put, there
was no evidence indicating that the indictment was dismissed because the indictment
had been made because of mistake, false information, or other similar reason
indicating absence of probable cause or that the indictment was void. Accordingly,
Appellant was not entitled to an expunction under the subsection of Article 55.01
upon which he relied, and the trial court did not err by denying his petition. We
overrule Appellant’s sole issue on appeal.

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                                         This Court’s Ruling
        We affirm the order of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


May 9, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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