Reverse and Render; Opinion Filed January 29, 2019.




                                                        In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas
                                               No. 05-18-00348-CV

                                EX PARTE JOAN REIMHERR FALLIS

                           On Appeal from the 216th Judicial District Court
                                       Gillespie County, Texas
                                   Trial Court Cause No. 15167

                                   MEMORANDUM OPINION
                        Before Justices Partida-Kipness, Pedersen, III, and Carlyle
                                   Opinion by Justice Partida-Kipness

         In this restricted appeal,1 appellant, the Texas Department of Public Safety (“Department”),

challenges an order of expunction entered in favor of appellee, Joan Reimherr Fallis. 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 Fallis

failed to meet all 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 Fallis’s petition to expunge.

                                                 BACKGROUND

         On January 25, 2014, Fallis was arrested for driving while intoxicated (“DWI”). An

information charging Fallis with the DWI offense was filed on July 28, 2014. On July 14, 2015,



    1
      In restricted appeals, we are limited to considering only errors that are apparent on the face of the record. See
Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam). The face of the record
includes all the papers on file in the appeal, including the reporter’s record. Id. A restricted appeal affords appellant
the same scope of review as an ordinary appeal. Id.
pursuant to a plea bargain, Fallis pleaded guilty and was convicted of the offense of park stop or

stand vehicle on roadway side of vehicle (“parking offense”), a Class C misdemeanor.           The trial

court assessed punishment at a $200 fine and sixteen hours of community service.

          On October 24, 2017, Fallis filed a petition for expunction of all records related to the DWI

offense pursuant to article 55.01(a) of the Texas Code of Criminal Procedure. The petition alleged

that the judgment for the parking offense was void because the offense is not a lesser included

offense of DWI. The petition further alleged that Fallis had been released, the statute of limitations

had run on the DWI offense, the charge was no longer pending and had not resulted in a final

conviction for DWI, there was no community supervision ordered related to the charge, and she

had not been convicted of a felony in the five years prior to the arrest. The Department filed an

answer and general denial requesting that the expunction be denied because Fallis had no right to

an expunction of the DWI offense since her conviction for the parking offense was a result of the

arrest.

          At the hearing on the petition, the State argued that Fallis was not entitled to an expunction

for the same reasons set forth in the Department’s answer, i.e., Fallis’s final conviction for the

parking offense was a result of the arrest she sought to have expunged. Fallis argued the conviction

for the parking offense did not bar her from getting an expunction for the DWI because it was not

a lesser included offense of DWI. Fallis was not seeking to have the parking offense expunged

from the record.

          Following the hearing, the trial court signed an order granting the expunction. On appeal,

the Department makes the same argument as was set forth in its answer to the petition. The

Department further argues that Fallis failed to present legally sufficient evidence to support the

expunction order. Fallis has not exercised her right to respond to the Department’s arguments on

appeal.

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                                           ANALYSIS

       The purpose of the expunction statute is to allow the record of a wrongful arrest to be

expunged. See Travis County Dist. Attorney v. M.M., 354 S.W.3d 920, 928 (Tex. App.—Austin

2011, no pet.) (en banc). Expunction is a statutory privilege, not a constitutional or common-law

right. Id. at 923. The petitioner is not entitled to the expunction remedy unless he meets all the

statutory requirements of article 55.01 of the code of criminal procedure. See TEX. CODE CRIM.

PROC. ANN. art. 55.01; Collin County Dist. Attorney v. Fourrier, 453 S.W.3d 536, 538 (Tex.

App.—Dallas 2014, no pet.) (en banc); Tex. Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 624

(Tex. App.—Austin 2014, pet. denied) (en banc). The trial court has no equitable power to extend

the protections of the expunction statute beyond what the legislature has provided. Fourrier, 453

S.W.3d at 539; Tex. Dep’t of Pub. Safety v. Dicken, 415 S.W.3d 476, 479 (Tex. App.—San Antonio

2013, no pet.). We review a trial court’s ruling on a petition for expunction for an abuse of

discretion. Fourrier, 453 S.W.3d at 539. 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.

       The relevant portion of the expunction statute applicable here provides that a person who

has been placed under arrest of either a felony or a misdemeanor may have records and files

relating to the arrest expunged if (1) the person 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 for the offense, unless the offense is a

class C misdemeanor. TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). The Department does not

dispute that Fallis had been released or that there was no court-ordered community supervision

under article 42.12. The Department’s only contention is that Fallis failed to establish that the




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charge did not result in a final conviction because Fallis pleaded guilty to a charge resulting from

the arrest. We agree with the Department.

       Texas courts have held that article 55.01 requires an “arrest-based” approach to expunction

because it authorizes expunging only the records and files relating to an arrest rather than an

individual charge that resulted from an arrest. See V.E. v. Travis County Dist. Attorney, 500

S.W.3d 652, 655–56 (Tex. App.—Austin 2016, no pet.); Ex parte Vega, 510 S.W.3d 544, 548

(Tex. App.—Corpus Christi 2016, no pet.); In re Expunction, 465 S.W.3d 283, 290 (Tex. App.—

Houston [1st Dist. 2015, no pet.); S.J. v. State, 438 S.W.3d 838, 845–46 (Tex. App.—Fort Worth

2014, no pet.); Dicken, 415 S.W.3d at 480. In other words, an expunction under article 55.01(a)(2)

is unavailable if the petitioner’s arrest leads to a final conviction on any charge. See G.B.E., 459

S.W.3d at 626–30. We presume that if the Legislature wished to permit persons to expunge records

related to a particular charge resulting from an arrest without expunging all records of the arrest

itself, it would have included language with that meaning in the statute. See S.J., 438 S.W.3d at

843.

       Fallis was originally arrested and charged with DWI. As part of a plea agreement, she

pleaded guilty to a Class C parking offense.      Thus, the charge resulted in a final conviction

rendering Fallis’s arrest records ineligible for expunction. During the hearing on the petition,

Fallis argued that the conviction for the parking offense did not bar her from getting an expunction

for the DWI because it was not a lesser included offense of DWI. This argument fails. There is

nothing in the expunction statute to indicate that the Legislature intended to limit the “resulted

from” requirement to final convictions for offenses which would otherwise be considered “lesser-

included” of the expunction offense. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); In re

J.O., 353 S.W.3d 291, 294 (Tex. App.—El Paso 2011, no pet.). Further, Fallis did not file a brief

in this Court citing Texas precedent imposing such a limitation, nor have we found any authority

                                                –4–
for such a proposition. Because she failed to establish all conditions required for expunction under

article 55.01(a)(2), Fallis was not entitled to an expunction as a matter of law. We resolve the

Department’s first issue in its favor.

       Having concluded that the trial court erred by granting Fallis’s petition for expunction, we

need not address the Department’s second issue contending that Fallis failed to present legally

sufficient evidence to support the expunction order. See TEX. R. APP. P. 47.1.

                                         CONCLUSION

       We reverse the trial court’s judgment granting Fallis’s petition for expunction, and we

render judgment denying Fallis’s petition for expunction.




                                                      /Robbie Partida-Kipness/
                                                      ROBBIE PARTIDA-KIPNESS
                                                      JUSTICE


Do Not Publish
TEX. R. APP. P. 47
180348F.P05




                                                –5–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 EX PARTE JOAN REIMHERR FALLIS                       On Appeal from the 216th Judicial District
                                                     Court, Gillespie County, Texas
 No. 05-18-00348-CV                                  Trial Court Cause No. 15167.
                                                     Opinion delivered by Justice Partida-
                                                     Kipness. Justices Pedersen, III and Carlyle
                                                     participating.

      In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED denying Joan Reimherr Fallis’s petition for
expunction.

        It is ORDERED that appellant The Texas Department of Public Safety recover its costs
of this appeal from appellee Joan Reimherr Fallis.


Judgment entered this 29th day of January 2019.




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