                                    IN THE
                            TENTH COURT OF APPEALS

                                   No. 10-11-00275-CV

                                   EX PARTE M. R. L.


                           From the 272nd District Court
                                Brazos County, Texas
                          Trial Court No. 11-000975-CV-272


                            MEMORANDUM OPINION


         The State of Texas appeals from a judgment granting an expunction of records

‚pertaining to *M.R.L.+ in connection with the arrest and/or alleged offense‛ of driving

while intoxicated. See generally TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp.

2011).    The State complains that the trial court erred by granting the petition for

expunction because M.R.L. pled guilty and was sentenced to a period of deferred

adjudication community supervision for the offense of racing in a motor vehicle with an

open container committed on the same date, making expunction unavailable to M.R.L.

We reverse and render judgment denying the petition for expunction.

Facts and Procedural History

         On July 24, 2007, M.R.L. was arrested for the offense of driving while intoxicated,
and an information was filed for that offense on October 23, 2007. However, on August

22, 2008, an amended information was filed with the DWI offense listed as count one

and the offense of racing in a motor vehicle with an open container of alcohol in the

vehicle was listed as count two. The DWI offense was marked out by hand on the

amended information, although the record is unclear as to whether that charge was

abandoned by the State as a result of a plea agreement or for some other reason. M.R.L.

pled guilty to count two on August 25, 2008 and was placed on deferred adjudication

community supervision for two years for the racing offense. See TEX. TRANSP. CODE

ANN. § 545.420 (West 2011).

Entitlement to Expunction

       The State complains in its sole issue that, because M.R.L. was placed on

community supervision for an offense that arose out of the same course of conduct that

gave rise to the arrest for driving while intoxicated, expunction of the arrest is not

available for the driving while intoxicated charge. M.R.L. contended that offenses are

divisible for purposes of the expunction statutes, relying largely on the Austin Court of

Appeals’ decision in Travis County D.A. v. M.M. See Travis County D.A. v. M.M., No. 03-

08-00241-CV, 2010 Tex. App. LEXIS 6346 (Tex. App.—Austin Aug. 6, 2010, no pet. h.),

opinion withdrawn by, substituted opinion at, different results reached on reconsideration by, en

banc, Travis County DA v. M. M.,354 S.W.3d 920 (Tex. App.—Austin Dec. 8, 2011, no pet.

h.).



Ex parte M.R.L.                                                                           Page 2
Code of Criminal Procedure Article 55.01

       This proceeding took place prior to the 2011 amendments to article 55.01 of the

code of criminal procedure (‚the expunction statute‛), which sets out the requirements

for expunction. See Act of May 29, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen.

Laws 1103 (‚former art. 55.01‛) (amended 2011) (current version at TEX. CODE CRIM.

PROC. ANN. art. 55.01 (West Supp. 2011)).        We note that expunction is neither a

constitutional nor common-law right; rather, it is a statutory privilege. Ex parte S.C., 305

S.W.3d 258, 260 (Tex. App.—Houston [14th Dist.] 2009, no pet.). All of the statutory

provisions are mandatory and exclusive, and the petitioner is entitled to expunction

only when all statutory conditions have been met. Tex. Dep't of Public Safety v. J.H.J., 274

S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Further, the trial court

has no equitable power to allow expunction where it is not allowed by statute. Id. The

cause of action created by the expunction statute is civil rather than criminal in nature,

and the burden of proving compliance with the statutory requirements rests with the

petitioner. Ex Parte S.C., 305 S.W.3d at 260.

       The version of article 55.01(a) in effect when M.R.L. sought to expunge the

charge provided, in relevant part, 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:

       (1) the person is tried for the offense for which the person was arrested
       and is:


Ex parte M.R.L.                                                                       Page 3
       (A) acquitted by the trial court, except as provided by Subsection (c) of
       this section; or

       (B) convicted and subsequently pardoned; or

       (2) each of the following conditions exist:

       (A) an indictment or information charging the person with commission of
       a felony has not been presented against the person for an offense arising
       out of the transaction for which the person was arrested or, if an
       indictment or information charging the person with commission of a
       felony was presented, the indictment or information has been dismissed
       or quashed, and:

       (i) the limitations period expired before the date on which a petition for
       expunction was filed under Article 55.02; or

       (ii) 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, or 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 it was
       void;

       (B) 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 any offense other
       than a Class C misdemeanor; and

       (C) the person has not been convicted of a felony in the five years
       preceding the date of the arrest.

FORMER TEX. CODE CRIM. PROC. ANN. art. 55.01.

Statutory Construction

       We must determine whether article 55.01 applies to arrests or to individual



Ex parte M.R.L.                                                                       Page 4
charges stemming from an arrest. When construing statutes, we use a de novo standard

of review, with the primary objective to ascertain and give effect to the legislature’s

intent. TEX. GOV’T CODE ANN. § 312.005 (West 2005); F.F.P. Operating Partners, L.P. v.

Duenez, 237 S.W.3d 680, 683 (Tex. 2007). We begin with the statute’s words to ascertain

that intent. TEX. GOV’T CODE ANN. §§ 312.002, .003 (West 2005); State v. Shumake, 199

S.W.3d 279, 284 (Tex. 2006). If a statute uses a term with a particular meaning or assigns

a particular meaning to a term, we are bound by the statutory usage. See TEX. GOV’T

CODE ANN. § 311.011 (West 2005); Texas Dep't of Transp. v. Needham, 82 S.W.3d 314, 318

(Tex. 2002). Undefined terms in a statute are typically given their ordinary meaning,

but if a different or more precise definition is apparent from the term’s use in the

context of the statute, we apply that meaning. In re Hall, 286 S.W.3d 925, 928-29 (Tex.

2009). If a statute is unambiguous, we adopt the interpretation supported by its plain

language unless such an interpretation would lead to absurd results that the legislature

could not possibly have intended. Texas Dep't of Protective & Regulatory Servs. v. Mega

Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004). We consider statutes as a whole rather

than their isolated provisions. Texas Dep't of Transp. v. City of Sunset Valley, 146 S.W.3d

637, 642 (Tex. 2004).   Further, we presume that the legislature chooses a statute’s

language with care, deciding to include or omit words for a purpose. In re M.N., 262

S.W.3d 799, 802 (Tex. 2008).




Ex parte M.R.L.                                                                      Page 5
Analysis

       M.R.L. argued to the trial court that the expunction statute should apply to each

charge or offense for which a person is arrested separately, and if there is no conviction

or community supervision for a given offense, the records pertaining to that offense

should be capable of expunction without regard to the disposition of other charges

arising from the same arrest. Indeed, in the opinion largely relied upon by M.R.L. and

the trial court, the initial panel opinion in Travis County D.A. v. M.M. issued by the

Austin Court did hold that in a similar situation, an individual charge of driving while

intoxicated was properly expunged when M.M. was sentenced only on a charge of

resisting arrest, with both offenses having arisen out of the same course of conduct and

arrest. See Travis County D.A. v. M.M., No. 03-08-00241-CV, 2010 Tex. App. LEXIS 6346

(Tex. App.—Austin Aug. 6, 2010, no pet. h.), opinion withdrawn by, substituted opinion at,

different results reached on reconsideration by, en banc, Travis County DA v. M. M., 354

S.W.3d 920 (Tex. App.—Austin Dec. 8, 2011, no pet. h.). However, on rehearing before

the Court en banc, that court held that because a felony charge of assault on a public

servant was considered in punishment pursuant to section 12.45 of the Penal Code, the

arrest became incapable of expunction because the felony offense had not been

dismissed or quashed pursuant to former article 55.01(a)(2)(A). Travis County D.A. v.

M.M., 354 S.W.3d at 926. This is not the case before us because there was no felony

offense alleged to have been committed by M.R.L.



Ex parte M.R.L.                                                                     Page 6
       The en banc opinion also discusses the primary purpose of the expunction statute,

which is ‚to permit the expunction of records of wrongful arrests.‛ 354 S.W.3d at 928

(citing Harris County Dist. Attorney's Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). We

agree that when a defendant admits guilt as to an offense arising out of an arrest, by

that admission, the defendant concedes that the arrest was not wrongful for purposes of

the expunction statute. See Ex parte P.D.H., 823 S.W.2d 791, 793 (Tex. App.—Houston

[14th Dist.] 1992, no writ) (‚In the instant case, appellee pled guilty and by doing so

admitted that she was not wrongfully arrested.‛); see also J.T.S., 807 S.W.2d at 574

(‚*T+he expunction law clearly was not ‘intended to allow a person who is arrested,

pleads guilty to an offense, and receives probation pursuant to a guilty plea to expunge

arrest and court records concerning that offense.’‛ (quoting Texas Dep't of Pub. Safety v.

Failla, 619 S.W.2d 215, 217 (Tex. Civ. App.—Texarkana 1981, no writ))). Here, M.R.L.

admitted guilt as to the racing charge, and received a deferred adjudication community

supervision based on that admission. By admitting guilt as to the racing charge, M.R.L.

also admitted that the arrest itself was not wrongful. See P.D.H., 823 S.W.2d at 793;

J.T.S., 807 S.W.2d at 574.

       Viewing the language used by the Legislature in the expunction statute keeping

in mind the intent of the expunction statute in eliminating records based on wrongful

arrests, we find that M.R.L. has not demonstrated that each element of the expunction

statute has been met.        The language used in former article 55.01(a)(2)(B) had four



Ex parte M.R.L.                                                                       Page 7
separate requirements which must each apply: (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 any offense other than a Class C misdemeanor. FORMER TEX. CODE CRIM. PROC.

ANN. art. 55.01(a)(2)(B) (emphasis added). The Legislature used the terms ‚for any

offense‛ rather than ‚for the offense,‛ ‚for that offense,‛ or ‚for that charge,‛ and

therefore, we believe that because M.R.L. was placed on community supervision for an

offense other than a Class C misdemeanor arising from the arrest, expunction is not

available to M.R.L. for the driving while intoxicated offense. 1 The trial court erred by

granting the petition for expunction of the driving while intoxicated offense and arrest.

We sustain issue one.

Conclusion

        Because the trial court erred by granting the petition for expunction, we reverse

the trial court’s expunction order and render judgment denying expunction of the

driving while intoxicated offense and arrest.




                                                 TOM GRAY
                                                 Chief Justice




1We note that section 55.01 was amended in the most recent legislative session and section (a)(2)(B) has
been substantially reworded to address and clarify this issue. See Act of May 27, 2011, 82nd Leg., R.S., ch.
894, § 1, 2011 Tex. Gen. Laws 894 (amended 2011) (current version).

Ex parte M.R.L.                                                                                      Page 8
Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed March 7, 2012
[CV06]




Ex parte M.R.L.                             Page 9
