

Affirmed as
Modified and Opinion filed
December 8, 2009.
 
 
In The
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-08-00381-CV
_______________
 
EX PARTE S.C.
 
                                                                                                   
          
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Cause No. 2007-06382-A
                                                                                                      
       
 
O P I N I O N
Appellant, Texas State Securities Board (Athe Board@), appeals from an expunction order
concerning files and records relating to appellee, S.C.  In its sole issue, the
Board contends the order is broader than authorized by the statute governing
expunction.  Because we agree, we modify the order and affirm as modified.
I.  Background




After an investigation by the Board and referral to the
Harris County District Attorney,  S.C. was indicted for securities fraud and
engaging in organized criminal activity to commit theft.  The district attorney
subsequently dismissed the charges.  S.C. filed a petition seeking expunction
of Aall files and records relating to the
arrest and investigation@ maintained by several governmental agencies, including the
Board.[1]  In its
answer, the Board asserted S.C. was entitled to expunction of all files and
records relating to the arrest but not its investigation.
S.C.=s claim was resolved by agreed order or nonsuit relative to
files and records of all agencies except the Board.  The court severed the
action pertaining to the Board=s files and records from the remainder of the suit.  On April
25, 2008, following a hearing, the trial court signed an AOrder of Expunction@ governing the Board=s files and records, despite the
Board=s objection to the scope of the
proposed order.  The Board appeals from the order.
II.  Issues and Standard of Review
Chapter 55 of the Texas Code of Criminal Procedure governs
expunction of criminal records.  Tex. Code Crim. Proc. Ann. arts. 55.01B.06 (Vernon 2006 & Supp. 2009). 
Article 55.01, entitled ARight to Expunction,@ prescribes the circumstances under
which a person who was arrested for a felony or misdemeanor Ais entitled to have all records and
files relating to the arrest expunged.@  Id. art. 55.01. With respect
to the present case, a person is entitled to expunction if the indictment for a
felony has been dismissed and certain other conditions are satisfied.  Id.
art. 55.01(a)(2).  




Expunction is neither a constitutional nor common-law right,
but a statutory privilege.  Tex. Dep=t of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.CHouston [14th Dist.]  2008, no
pet.).  Although the expunction statute is located in the Texas Code of
Criminal Procedure, an expunction proceeding is civil rather than criminal in
nature.  Id.  Therefore, the petitioner bears the burden to prove all
statutory requirements have been satisfied.  Id.  A person=s entitlement to expunction arises
only after all statutory conditions have been met.  Id.  The trial court
has no equitable power to extend the protections of the expunction statute
beyond its stated provisions.  Id.  
The Board does not dispute that S.C. met the requirements for
expunction.  However, the Board contends the order was broader than authorized
by the statute.  
The pertinent portions of the order state:
It is ordered that Petitioner is entitled
to the complete expunction of all files and records related to the arrest of
Petitioner:.[sic] 
. . .
Without limiting the scope of this order,
the expunction shall include all files and records which mention petitioner by
name or which refer to petitioner.
Without
limiting the scope of this order, the expunction shall include all files and
records generated by or received by the Texas State Securities Board and its
counsel, including counsel for its current or former employees, during this
expunction proceeding, including all copies of all pleadings and discovery.
The Board does not challenge the first above-cited provision
because it tracks the language of the statute.  See Tex. Code Crim.
Proc. Ann. art. 55.01(a).  However, the Board challenges the two provisions
that follow, contending they require expunction of more than Athe records and files relating to
[S.C.=s] arrest.@[2]
The Board does not object to expunction of S.C.=s Amug shots, finger prints, warrants,
rap sheets, criminal charges, arraignment records, dismissal of criminal
charges,@ and the Board=s investigative files and records
that reference the arrest.  However, the Board objects to wholesale expunction
of its files and records pertaining to its investigation of S.C., arguing such
relief is not authorized by the statute.  In contrast, S.C. contends he is
entitled to expunction of all these investigative files and records as Arelating to the arrest.@




Initially, we agree that the challenged provisions, as
currently worded, are clearly too broad to satisfy the statute because, even if
S.C. were entitled to expunction of all the investigative files and records,
these provisions are not even limited to his case.  With respect to the first
such provision, the Board could possess documents mentioning S.C. if, for
example, he were a witness in a matter unrelated to his case.  Further, as the
Board asserts, the second challenged provision encompasses its files on all its
other cases and its AChristmas cards.@
We recognize the trial court must not have intended to enter
such a broad order.  The trial court likely intended to require expunction of
all files and records pertaining to the Board=s investigation  of S.C. considering
that is the disputed issue, S.C. submitted the order signed by the court, and
these provisions would encompass such relief if limited accordingly.  In other
words, the challenged provisions were likely intended to define Afiles and records related to the
arrest@ to include all files and records
pertaining to the Board=s investigation  of S.C.  Therefore, rather than simply
deleting the challenged provisions, we will decide if S.C. is entitled to
expunction of all these investigative files and records and the challenged
provisions should be narrowed to, at least, afford such relief.[3]




We note also that the parties disagree regarding the
applicable standard of review.  The Board acknowledges a court=s decision whether to grant an
expunction is reviewed for abuse of discretion.  See Heine v. Tex.
Dep=t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.CAustin 2002, pet. denied).  However,
as the Board asserts, we are not addressing whether S.C. was entitled to
expunction, but whether the order exceeded the scope of expunction allowed by
the statute, and construction of a statute is a question of law, which we
review de novo.  F.F.P. Operating Partners, L.P. v. Duenez, 237
S.W.3d 680, 683 (Tex. 2007).
S.C. contends we must nonetheless apply an
abuse-of-discretion standard because the trial court reviewed the files and
records referenced in the challenged provisions and made a fact finding that
they related to S.C.=s arrest; thus, we must uphold the order because it was based
on Asolid evidence.@  See Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 211 (Tex. 2002) (recognizing a trial court does not
abuse its discretion if some evidence reasonably supports its decision).  We
disagree.
The trial court held a hearing at which it entertained the
Board=s objection to the scope of the
proposed order.  During the hearing, the parties stipulated to the facts
necessary to establish S.C.=s right to expunction, but no evidence was admitted regarding
the scope of the expunction.  Further, there was no request for, and the trial
court did not render,  findings of fact concerning the files and records to be
expunged.[4]  We may not
uphold the challenged provisions based on any implied finding that the files
and records mentioned therein related to S.C.=s arrest because there was no
evidence admitted to support such a finding.  See BMC Software Belg.,
N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002) (stating that, when trial
court does not issue findings of fact and conclusions of law, all facts
necessary to support the judgment and supported by the evidence are
implied).




Moreover, it is apparently undisputed the Board possesses
files and records pertaining to its investigation of S.C. that do not
specifically reference the arrest.  Consequently, whether these investigative
files and records nonetheless constitute Afiles and records relating to the
arrest@ under the expunction statute is
solely a legal issueCnot a fact issue on which the trial court could have rendered
any findings.  Accordingly, we will employ a de novo standard to review
this issue.  See Tex. Educ. Agency v. T.F.G., No. 09-08-00514-CV,
___ S.W.3d ___, 2009 WL 2616250, at *2 (Tex. App.CBeaumont Aug 27, 2009, no pet. h.)
(rejecting petitioner=s argument that abuse-of-discretion standard applied to
agency=s challenge to expunction order and
employing de novo standard because court was not addressing petitioner=s right to expunction but whether
order exceeded scope of statute with respect to records expunged).[5]
III.  Analysis




When construing a statue, we ascertain and give effect to the
legislature=s intent as expressed by Athe plain and common meaning of the statute=s words.@  HCBeck, Ltd. v. Rice, 284
S.W.3d 349, 352 (Tex. 2009); Duenez, 237 S.W.3d at 683.  We may also
consider, among other matters, the objective the legislature sought to attain,
circumstances under which the statute was enacted, legislative history, common
law, consequences of a particular construction, and the title of the statute. 
Tex. Gov=t Code Ann. ' 311.023 (Vernon 2005); see Rice,
284 S.W.3d at 352; see also Harris County Dist. Attorney=s Office v. J.T.S., 807 S.W.2d 572, 573 (Tex. 1991)
(recognizing Code Construction Act controlled when interpreting expunction
statute).  We presume every word of a statute was used for a purpose and,
likewise, every word excluded from a statute was excluded for a purpose.  Cameron
v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981).  We must
consider the statute as a whole rather than isolated provisions.  Helena
Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).
We conclude that S.C. is not entitled to expunction of all
the Board=s files and records pertaining to its investigation of S.C. based on the
language of article 55.01, the legislative intent in enacting the expunction
statute, other provisions of the statute, its title, the illogical consequence
of adopting the opposite construction, and the few cases providing guidance on
the scope of expunction.[6]
A.        Language
of article 55.01
Article 55.01 provides only that a petitioner may obtain
expunction of Afiles and records relating to the arrest.@  Tex. Code Crim. Proc. Ann. art.
55.01(a).  The Code of Criminal Procedure does not define Arelating to the arrest.@  However, considering the plain and
common meaning of this phrase, we do not construe the statute to encompass
investigative files and records that existed prior to, and independent of, the
ultimate arrest.  See Tex. Code Crim. Proc. Ann. art. 3.01 (Vernon 2005)
(providing, Aterms used in the Code are to be taken and understood in their usual
acceptation in common language, except where specially defined@). 




It is axiomatic that an arrest may follow an investigation
into possible criminal conduct, such as the investigation conducted by the
Board.  See 7 Tex. Admin. Code ' 127.1 (providing that certain
personnel of State Securities Board may sign complaints before appropriate
district or county attorneys where there is sufficient evidence of a
violation of penal provisions of the Securities Act.).  However, article 55.01
does not also state that a person may obtain expunction of records Arelating to the investigation@ or Aresulting in@ or Acontributing to@ the arrest, using these or similar
terms.  Tex. Code Crim. Proc. Ann. art. 55.01(a).  We presume that, if the
Legislature had intended to allow expunction of these investigative files and
records, it would have so specified.  Accordingly, we decline to expand the
scope of the statute beyond the meaning expressed therein.
B.        Legislative
intent
Our construction of the statute is consistent with the
legislature=s intent.  The Texas Supreme Court, our court, and sister courts have
recognized that the statute was enacted to enable a person who is wrongfully
arrested to expunge his arrest record.  See, e.g., J.T.S., 807
S.W.2d at 574; Carson v. State, 65 S.W.3d 774, 785 (Tex. App.CFort Worth 2001, no pet.);
Wilkomirski v. Tex. Criminal Info.  Ctr., 845 S.W.2d 424, 426 (Tex. App.CHouston [1st Dist.] 1992, no writ); State
v. Knight, 813 S.W.2d 210, 212 (Tex. App.CHouston [14th Dist.] 1991, no writ); Smith
v. Millsap, 702 S.W.2d 741, 742 (Tex. App.CSan Antonio 1985, no writ);  Tex.
Dep=t of Pub. Safety v. Failla, 619 S.W.2d 215, 217 (Tex. Civ. App.CTexarkana 1981, no writ).
More specifically, the statute was enacted to prevent the
record of a wrongful arrest from negatively impacting a person for the
remainder of his life.  See State v. Arellano, 801 S.W.2d 128, 131B32 (Tex. App.CSan Antonio 1990, no writ).  The Arellano
court recited various presentations in the legislature by the sponsors or
supporters of the bills that resulted in passage of the expunction statute,
including the following statements:
If you=ve been
arrested and you=ve got an arrest record, and no circumstances exist,
there is no reason at all in a just society why you should be penalized for the
rest of your life for the existence of that record.  




It=s almost unthinkable to me that in
Texas in 1977 that we still have thousands of people who=ve been arrested by a mistake, by
accident, in cases in which there were no charges to be filed ultimately but
their records reflect for the rest of their lives a charge which was filed
against them and they go through life with a felony.
Id. at 131.  A
sponsor also presented a witness who explained that the existence of his son=s arrest record arose when he was
asked on military and law school applications whether he had ever been
arrested, although the charge had been dismissed.  Id. at 132.  Relying
on this legislative history, the Arellano court concluded it was Aabundantly clear that the legislative
intent in passing the statute was to cure the evils attendant to wrongful
arrests and subsequent indictments.@  Id.  S.C. cites no authority
indicating the legislature also intended to allow a person to eradicate any
evidence he had ever been subject to a governmental investigation or was
concerned that being the subject of such an investigation imposes a life-long
stigma.
C.        Other
provisions of the expunction statute and its title
Another portion of the expunction statute supports our
conclusion.  Specifically, article 55.03, entitled AEffect of Expunction,@ provides that, subject to a certain
exception, when an expunction order is final, Athe person arrested may deny the
occurrence of the arrest and the existence of the expunction order.@  Tex. Code Crim. Proc. Ann. art.
55.03.  This article does not authorize the person also to deny occurrence of
the investigation that lead to the arrest.  See id. 




Moreover, the title of the statute is AExpunction of Criminal Records.@  We have not found a definition of Acriminal records@ in the Code of Criminal Procedure. 
Nonetheless, applying the plain meaning of the term, in the context of the
expunction statute, we do not construe it to entail records created merely in
the course of investigating possible criminal conduct before formal institution
of criminal proceedings, such as by arrest or indictment.            To support
his position that article 55.01 authorizes expunction of all investigative
files and records, S.C. cites several portions of the expunction statute
effectively providing as follows: expunction based on non-presentment,
dismissal, or quashing of an indictment is allowed only if the limitations
period expired before the petition was filed; see id. art.
55.01(a)(2)(A)(i); expunction based on an acquittal is not allowed if the
petitioner was convicted of, or remains subject to prosecution for, another
offense arising out of the same criminal episode; see id. art.
55.01(c); if Athe person who is the subject of an expunction order is still subject to
conviction for an offense arising out of the transaction for which the person
was arrested because the statute of limitations has not run and there is
reasonable cause to believe that the state may proceed against the person for
the offense, the court may provide in its order that the law enforcement agency
and the prosecuting attorney responsible for investigating the offense may
retain any records and files that are necessary to the investigation@; see id. art. 55.02 '4(a); and in an expunction order
which was based on acquittal of the petitioner, the court may provide that the
law enforcement agency and the prosecuting attorney retain records and files if
(1) they are necessary to conduct a subsequent investigation and prosecution of
another person or (2) the state establishes the records and files are necessary
for use in another criminal case or a civil case; see id. art.
55.02 ' (4)(a)(1), (2).
According to S.C., the legislature would not have included
the above-cited provisions if it intended the scope of expunction to be as
limited as urged by the Board because items such as a petitioner=s mug shot, fingerprint card, rap
sheet, and indictment would have no relevance to a future prosecution of the
petitioner, another person, or a civil action; rather, these provisions reflect
that expunction includes investigative records because they are the only type
of records that would be pertinent to such future prosecutions.  We disagree.  




It is not unreasonable that the legislature intended to
ensure a record remains showing  a person was previously arrested for an
offense while he remains subject to prosecution for the offense or another
offense arising out of the same criminal episode.  Moreover, the petitioner=s fingerprints might be useful in the
prosecution of another person to exclude the petitioner as the perpetrator of
that offense; or information regarding the petitioner=s arrest might be needed if he were
to assert a civil rights action based on the circumstances of the arrest.  We
need not outline every conceivable instance in which arrest records might be
relevant in a future criminal prosecution or civil case.  We simply cite these
examples to negate S.C. position that only investigative recordsCnot arrest recordsCwould ever be relevant in a future
criminal prosecution or civil case. 
D.        Illogical
consequences of the opposite construction
The illogical consequence of adopting the construction urged
by S.C. also supports our conclusion.  Only a person who was arrested may
obtain expunction of his records because A[a]n arrest is a threshold
requirement under the expunction statute.@  Carson, 65 S.W.3d at 779; Harris
County Dist. Attorney v. Lacafta, 965 S.W.2d 568, 570 (Tex. App.CHouston [14th Dist.] 1997, no pet.); see
Tex. Code Crim. Proc. Ann. art. 55.01.  Therefore, under S.C.=s reasoning, a person who was
eventually arrested may obtain expunction of records of the investigation
whereas a person who was investigated but not arrested has no such right. We
cannot conclude the legislature intended to afford greater rights to a person
who was arrested than to one who was not arrested. 
E.        Cases
discussing the scope of expunction
Although the parties cite, and we have found, few cases
discussing the scope of expunction authorized under the statute, several
decisions support our conclusion that not all of the Board=s investigative files and records
pertaining to S.C. are necessarily subject to expunction.




For instance, in S.P. v. Dallas County Child Welfare Unit
of the Texas Department of Human Resources, the trial court ordered
expunction of records maintained by various agencies relating to the petitioner=s arrest for child abuse but excluded
records of the respondent child welfare unit because it was not an agency Adirectly involved in criminal
matters.@  577 S.W.2d 385, 386B87 (Tex. Civ. App.CEastland 1979, writ ref=d n.r.e.).  On appeal, the court held
that the unit=s Arecords and files relating to the
arrest@ were subject to expunction.  Id.
at 388.  However, the court noted that the Ainvestigations and written reports@ rendered pursuant to the Family Code
provision authorizing the unit to investigate child-abuse allegations were not
subject to expunction Aexcept for any references in such reports which are based
upon police records and files relating to the arrest.@  Id.
  Similarly, in Carson, the respondent city argued
that none of its records concerning the offense for which the petitioner was
acquitted were subject to expunction because they were maintained in the city=s capacity as his former employerCnot as a state agency.  65 S.W.3d at
777, 784.  Although the court refused to exclude the city=s records in toto from expunction, it
remarked that the city was not precluded on remand from attempting to show some
records were beyond the scope of expunction.  Id. at 785. 
Significantly, the court stated:
The obvious objective of
the expunction statute is to remove from public access and from access by the
officials and agencies named in the order all evidence of a petitioner=s arrest and the charges made against
him. This evidence consists generally of the indictment and the photographs,
fingerprints, and other matters comprising the arrest record and records
relating to the expunction proceeding. To the extent [the city] possess records
other than these types of records, they are not subject to expunction.
Id. (citing W.V.
v. State, 669 S.W.2d 376, 378 (Tex. App.CDallas 1984, writ ref=d n.r.e.), in which the court recited
above-items constituting the arrest record and the indictment as subject to
expunction and then decided records relating to the expunction proceeding were
also subject to expunction); see City of Fort Worth v. Tuckness, 165
S.W.3d 425, 429 n.5 (Tex. App.CFort Worth 2005, no writ) (citing Carson when reciting
same list of items as subject to expunction but not addressing whether the
agency at issue=s records were subject to expunction order because it lacked
standing to challenge the order).[7] 




Accordingly, S.P. and Carson support a
conclusion that the legislature=s intent in enacting the expunction statute was not to
eradicate all evidence of the conduct underlying the expunged arrest.  See
Carson, 65 S.W.3d at 785; S.P., 577 S.W.2d at 388; see
also Bustamante v. Bexar County Sheriff=s Civil Serv. Comm=n, 27 S.W.3d 50, 51B54 (Tex. App.CSan Antonio 2000, pet. denied)
(rejecting appellant=s argument that expunction of records relating to her arrest
for drug possession barred findings supporting termination of her employment
with sheriff=s department on same grounds; civil service commission upholding the
termination did not rely on expunged records, but instead on Aevents surrounding the arrest,@ particularly other officers= testimony about their personal
observations of drugs at appellant=s home and her conduct during their
investigation).
After the parties filed their briefs, a sister court
considered the scope of the expunction statute.  In Texas Education Agency
v. T.F.G., following the petitioner=s acquittal for  indecency with a
child, the trial court granted expunction of Arecords pertaining to [petitioner]@ possessed by certain agencies
including Texas Education Agency (ATEA@).  2009 WL 2616250, at *1B 2. TEA, which evaluates applications
for teaching certificates, opposed expunction of its records, claiming the
petitioner=s underlying conduct might result in sanctions with respect to his
educator certification.  See id. 




TEA agreed any reference to the petitioner=s arrest should be expunged but
argued that its records regarding the alleged incident and the petitioner=s underlying conduct were excluded
from expunction because the legislature=s intent was Anot to wipe agencies= files clean of any information about
a person whose arrest records alone are expunged.@  Id. at *1B3.  In contrast, the petitioner
argued the statute=s purpose is to Aprovide those who have been acquitted
with a >fresh start= from allegations of wrongdoing,@ and any documents Amemorializing the events leading to
the charge are included within the ambit of documents >related to the arrest.=@  Id.  at *3.  After analyzing
S.P. and Carson, the court of appeals held: 
It is certainly possible
that TEA may have documents or files which pertain to [petitioner], and the
allegations made against him, separate and apart from the records and files
relating to the criminal investigation, arrest, and prosecution of [petitioner]
for the offense. . . . Based on our reading of the plain language of the
statute, we believe the statute=s intent is not to erase all evidence of the underlying
conduct, but to expunge any evidence of the criminal investigation, subsequent
arrest and prosecution for that conduct.  This interpretation is in line with
our fellow courts of appeals= application of this statute, as set forth above. We conclude
that only documents and records that pertain to the criminal investigation,
arrest, and prosecution of [petitioner], can be said to Arelate to the arrest.@ Any other documents resulting from
TEA=s internal investigation are not
subject to expunction, except for references in any such documents that are
based on the criminal investigation and subsequent arrest of [petitioner].
Id. at *4
(citations omitted).




In post-submission briefing, the Board claims that T.F.G.
supports its position because the court refused to allow expunction of all TEA=s records pertaining to the
petitioner.  See id.  In contrast, S.C. contends the situation in
T.F.G. is distinguishable from the present case and actually supports
his position.  As S.C. suggests, unlike the present case, TEA apparently did
not conduct the investigation leading to the petitioner=s arrest; instead, it possessed
information obtained during its own investigation to determine whether he
should retain his educator certificate.  See id. at *1B5.  The court seemed to rely on this
distinction when holding that files and records relating to the Acriminal investigation@ were subject to expunction but files
and records from TEA=s own investigation were not.  See id. at *4. 
Although not exactly clear, the court apparently used the term Acriminal investigation@ to mean a investigation that results
in a petitioner=s arrest.  See id.  S.C. emphasizes the court=s inclusion of files and records
relating to the Acriminal investigation@ within the scope of expunction.
We agree the court=s decision was Ain line@ with Carson and S.P.
to the extent it recognized an agency may possess documents related to the
petitioner and the underlying offense that are not subject to expunction and
specifically held TEA=s records were not subject to expunction.  See id.
at *3B4.  However, we disagree with the
court=s injecting files and records
relating to the Acriminal investigation@ into the scope of expunction.  See
id. at *4.  The court did not conduct any analysis to demonstrate the
statute authorizes such relief.  See id. at *1B5.  For the reasons discussed above,
we conclude its opinion regarding expunction of files and records pertaining to
the Acriminal investigation@ does not comport with the statute,
and we decline to follow this portion of the opinion. 




Further, S.P. and Carson do not support the T.F.G.
court=s inclusion of files and records
pertaining to the Acriminal investigation@ within the scope of expunction. 
Like T.F.G., in Carson, the respondent city apparently did not
participate in the investigation leading to the petitioner=s arrest but possessed information
about the underlying offense in his personnel records.  See Carson, 65
S.W.3d at 777, 784.  Nevertheless, when reciting the items typically subject to
expunction, the court did not include any sort of investigative files
and records.  See id. at 785.  In S.P., the child welfare
unit opposed expunction of its records relating to the petitioner=s arrest because it was prosecuting a
suit for termination of his parental rights; however, it is unclear whether the
unit participated in the investigation that lead to his arrest.  See generally,
S.P., 577 S.W.2d 385.  Regardless, when specifically excluding the unit=s investigative files and records
from expunction, the court did not distinguish an investigation that led to the
arrest from one pursued for some other purpose.  See id. at 388.[8] 
Likewise, when concluding the statute does not necessarily encompass expunction
of investigative files and records, we find no distinction between an
investigation resulting in the petitioner=s arrest and an investigation pursued
for some other purpose; the same underlying conduct is the focus of both
investigations.
In fact, a federal court cited S.P. when holding the
Connecticut Acriminal erasure statute,@ which effectively requires expunction of records and
information Apertaining to [a dismissed] charge,@ did not prohibit disclosure of
police records and Abyproducts@ of its Acriminal investigation@ of the underlying offense that
existed prior to the erased charge.  See Penfield v. Venuti, 93 F.R.D.
364, 366B69 (D. Conn. 1981).  Although not a
Texas case, we cite this decision because the court=s reasoning is consistent with our
analysis of the Texas statute.  Among other factors, the court based its
decision on the following: the plain language of the statute, particularly the
operative words, Apertaining to [the] charge@; legislative history showing the
statute was enacted to remove the stigma of arrest or formal charges from a
person who has not committed a crime; and the fact that investigative evidence
would have existed notwithstanding the criminal prosecution and should not be
protected from disclosure merely because the defendant=s conduct prompted an attempted
prosecution.  See id. at 367B69. 
IV.  Conclusion




In sum, we cannot uphold the two challenged provisions in any
form because S.C.=s entitlement to expunction of Aall records and files relating to the
arrest@ does not include all the Board=s files and records pertaining to its
investigation of S.C.[9]  Accordingly,
we sustain the Board=s sole issue.
We modify the AOrder of Expunction@ to delete the following provisions: 
Without limiting the scope of this order, the
expunction shall include all files and records which mention petitioner by name
or which refer to petitioner.
Without limiting the
scope of this order, the expunction shall include all files and records generated
by or received by the Texas State Securities Board and its counsel, including
counsel for its current or former employees, during this expunction proceeding,
including all copies of all pleadings and discovery.
We affirm the AOrder of Expunction@ as modified.[10]
 
 
/s/        Charles W. Seymore
Justice
Panel consists of Justices Seymore, Brown, and Boyce.




[1]  In the introductory portion of his petition, S.C.
requested expunction of Aall records and files relating to his arrest and
prosecution.@  However, in his prayer for relief, he requested
expunction of Aall files and records relating to the arrest and investigation.@


[2]  Throughout this opinion, we will refer to the first
provision of the above-cited portion of the order as Athe unchallenged provision@ and the two following provisions as Athe challenged provisions.@


[3]  We note that, on its face, the intended scope of the
order is not exactly clear.  The unchallenged provision ends with both a colon
and a period.  Thus, it is unclear whether the challenged provisions that
follow are merely encompassed within the unchallenged provision, i.e.
implicitly qualified with the language Arelated
to the arrest@; or whether the challenged provisions expand on the
unchallenged provision by defining certain files and records as  Arelated to the arrest.@  However, narrowly construing the challenged provisions as merely
encompassed within the unchallenged provision would not resolve the issue in
this case;  all parties agree S.C. is entitled to expunction of files and
records Arelated to the arrest,@ and the dispute concerns whether this right includes all files and
records pertaining to the Board=s investigation
of S.C.  Therefore, we glean that the challenged provisions were intended to
expand on the unchallenged provision and define Afiles and records related to the arrest@ to include these investigative files and records.


[4]  In its order, the trial court found S.C. was
entitled to expunction and jurisdiction and venue were proper.  The court also
recited findings concerning S.C.=s
identification, arrest date, and the offenses charged, which he was required to
set forth in his petition.  See Tex. Code Crim. Proc. Ann. art.
55.02(2)(b).


[5]  When asserting the trial court heard evidence, S.C.
refers to deposition testimony of a Board employee that S.C. presented in
response to a motion for summary judgment filed by the Board, on which the
trial court apparently did not rule.  The employee agreed the files and records
that the Board submitted to the district attorney Ahad to do ultimately with the arrest of [S.C.].@  However, this testimony was not admitted at the
hearing on the petition for expunction.  On appeal from a trial on the merits,
we cannot consider summary‑judgment evidence that was not admitted in
evidence at trial.  Celadon Trucking Servs., Inc. v. Titan Textile Co.,
130 S.W.3d 301, 307 (Tex. App.CHouston [14th
Dist.] 2004, pet. denied); Noble Exploration, Inc. v. Nixon Drilling Co.,
794 S.W.2d 589, 592 (Tex. App.CAustin 1990, no
writ).  Further, evidence the Board=s
files and records Ahad to do ultimately with the arrest of [S.C.]@ would not resolve the legal issue of whether the
records that do not specifically reference the arrest are nonetheless
encompassed under the statutory language, Arelating
to the arrest.@ 


[6]  The Board also argues that, if we adopt S.C.=s and the trial court=s interpretation of the statute, the Board=s ability under the securities act to share its
information with other agencies will be compromised, the confidentiality of its
records will be violated, and witnesses who cooperate in its investigations
face potential retaliation because expunged records may be returned to the
petitioner.  Because we agree with the Board=s
construction of the statute based on the factors we cite above, we need not
address these arguments.  


[7]  S.C. argues that the Carson court=s statement was dicta.  See Four Bros. Boat Works,
Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 662 (Tex. App.CHouston [14th Dist.] 2006, pet. denied) (ADictum is an observation or remark made concerning
some rule, principle, or application of law suggested in a particular case,
which observation or remark is not necessary to the determination of the case.@).  We acknowledge that, in Carson, as well as S.P.,
the scope of expunction was not directly stated as the issue.  See generally
Carson, 65 S.W.3d 774; S.P., 577 S.W.2d 385.  However, we do not
necessarily characterize the courts=
pertinent statements as dicta because each court=s holding that the agency=s
records were not automatically excluded from expunction encompassed an opinion
that some of its records may not be subject to expunction.  See Carson,
65 S.W.3d at 785; S.P., 577 S.W.2d at 388. Further, these opinions
factored into the ultimate relief granted by each court: when remanding, the Carson
court stated the agency could contest that certain records were subject to such
an order; see 65 S.W.3d at 785; and the S.P. court actually
modified the trial court=s order to exclude specifically the investigative
records from expunction in accordance with its opinion.  577 S.W.2d at
388.  Nevertheless, even if the Carson and S.P.  statements were
dicta, they, at least, indicate that other courts have construed the expunction
statute in the same manner as we have.  Moreover, the Carson court cited
W.V. which directly addressed the extent to which items were subject to
an expunction order.  See Carson, 65 S.W.3d at 785; W.V.,
669 S.W.2d at 377B79. 


[8]  In fact, the trial court referred to records
obtained under a Family Code provision that required the agency to investigate,
and report on, child-abuse allegations to determine whether grounds existed for
a suit affecting the parent-child relationship, but also to report its findings
to the district attorney or other appropriate law enforcement agency.  See Act
of May 25, 1973, 63th Leg., R.S., ch.543, '34.05,
1973 Tex. Gen. Laws 1411, 1455, amended by Act of June 2, 1975, 64th Leg.,
R.S., ch. 476, '53, 1975 Tex. Gen. Laws 1253, 1272 (current version at
Tex. Fam. Code Ann. ''261.301B.308
(Vernon 2008 & Supp. 2009)).


[9]  As noted, the S.P. court concluded
investigative files and records that reference the petitioner=s arrest are subject to expunction.  See 577
S.W.2d at 388.  We need not decide whether the S.P. court=s conclusion was correct because, for purposes of the
order in this case, the Board concedes they are included within the provision
requiring expunction of Afiles and records relating to the arrest.@


[10]  The Board also seems to challenge the following
portion of the order: AIt is further ordered that the Texas State Securities
Board shall delete from its public records all index references to the records
and files that are subject to the expunction order.@  However, the Board challenges this language only
because it requires deletion of index references to records that are not
properly included within the scope of expunction.  Because we limit the scope
of the order, any complaint regarding this provision is now moot. 


