                                 MEMORANDUM OPINION
                                         No. 04-09-00772-CV

                                          EX PARTE J.F.G.

                      From the 381st Judicial District Court, Starr County, Texas
                                     Trial Court No. DC-09-339
                             Honorable Jose Luis Garza, Judge Presiding

Opinion by:       Rebecca Simmons, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice

Delivered and Filed: November 24, 2010

REVERSED AND RENDERED

           J.F.G. filed a petition to expunge records of his 2001 driving while intoxicated (DWI)

arrest and conviction. The trial court granted his petition, and the Department of Public Safety

(DPS) appealed, arguing that J.F.G. was ineligible for the expunction because he was convicted

of the offense. We reverse the trial court’s order and render judgment denying the expunction.

                                                BACKGROUND

           In 2001, J.F.G. was arrested in Starr County for driving while intoxicated. According to

J.F.G.’s petition, he was convicted and completed twelve months of probation. In 2009, J.FG.

filed a petition for an expunction of his record, and a hearing was held on the matter. Though
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DPS was properly notified of the hearing, only J.F.G. appeared. The trial court granted J.F.G.’s

petition.

                                          EXPUNCTION

A. Standard of Review

        An appellate court reviews a trial court’s grant of an expunction for an abuse of

discretion. Ex parte Guajardo, 70 S.W.3d 202, 204 (Tex. App.—San Antonio 2001, no pet.). A

trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any

guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985). Accordingly, an appellate court must reverse an order granting an expunction if the

applicant fails to meet the statutory requirements. See State v. Beam, 226 S.W.3d 392, 393–95

(Tex. 2007).

B. J.F.G. Failed to Meet the Statutory Requirements for an Expunction

        Expunction is a statutory privilege governed by article 55.01 of the Texas Code of

Criminal Procedure, which provides that an arrested person is entitled to have the records of an

arrest expunged if (1) he was acquitted or pardoned; or (2) there was no indictment or the

indictment was dismissed, and several other requirements are met, including that the applicant

was not convicted. TEX. CODE CRIM. PROC. ANN. art. 55.01 (West 2006 & Supp. 2010). These

requirements apply to both felonies and misdemeanors. Id. The purpose of the expunction

statute is to allow the record of a wrongful arrest to be expunged, not to allow a person who was

convicted to expunge the record of a righteous arrest. See Harris County Dist. Attorney’s Office

v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). Thus, the statute does not permit an expunction of

records relating to a conviction unless the conviction was pardoned. See TEX. CODE CRIM. PROC.

ANN. art. 55.01(a)(1) & 55.01(2)(B).



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        J.F.G. stated in his petition that his arrest resulted in a conviction. During the hearing,

J.F.G. asserted under oath that the contents of the petition were true and correct. J.F.G.’s petition

also stated that he was entitled to an expunction of his DWI arrest and conviction because the

conviction “was not [for] a felony . . . .” Though the expunction statute historically treated

felonies and misdemeanors differently, the new statutory requirements now apply to both. See

Beam, 226 S.W.3d at 393–95; accord TEX. CODE CRIM. PROC. ANN. art. 55.01(a).

        Because J.F.G. was convicted of a DWI, he does not meet the expunction statute’s

requirements. Accordingly, we reverse the order of the trial court and render judgment denying

expunction. 1

                                                         Rebecca Simmons, Justice




1
  Although only DPS appealed the expunction, this holding applies to all agencies addressed in the expunction order
because they are interwoven and have identical interests for the purposes of maintaining criminal records. See Ex
parte Elliot, 815 S.W.2d 251, 251–52 (Tex. 1991).



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