       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                               ON RECONSIDERATION EN BANC



                                         NO. 03-08-00241-CV



                            Travis County District Attorney, Appellant

                                                    v.

                                           M. M., Appellee


      FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
       NO. D-1-EX-07-000600, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                                             OPINION


               We grant the Travis County District Attorney’s motion for rehearing, withdraw our

previous opinion and judgment dated August 6, 2010, and substitute the following en banc opinion and

judgment in their place. See Tex. R. App. P. 41.2 (allowing appellate courts to decide to consider case

en banc).

               The Travis County District Attorney appeals from the trial court’s order granting M.M.’s

petition for expunction of two charges arising from an arrest in 2004. In the 2004 incident, M.M. was

arrested for driving while intoxicated (DWI), resisting arrest, and assault of a public servant. Later, as

part of a negotiated plea bargain, the Travis County Attorney abandoned the DWI charge, M.M. pled

no contest to the resisting-arrest charge, and M.M. admitted guilt as to the charge of assault of a
public servant and asked the trial court to take the admitted offense into account in sentencing her for

resisting arrest. See Tex. Penal Code Ann. § 12.45 (West 2011). The court sentenced M.M. to two

years of deferred-adjudication community supervision. See Tex. Code Crim. Proc. Ann. art. 42.12, § 5

(West Supp. 2011). M.M. later filed a petition seeking to expunge all records and files relating to her

DWI and assault charges, and the trial court granted the petition.

               On appeal, the Travis County District Attorney challenges the trial court’s order

expunging the assault and DWI charges, contending that M.M. did not meet the requirements with

respect to either charge. We agree and reverse the trial court’s order.


                                          BACKGROUND

               The facts of this case are undisputed. In 2004, a state trooper conducted a traffic stop

of M.M.’s car after observing M.M. commit traffic violations. M.M. refused to perform field sobriety

tests and then resisted when the trooper attempted to place her under arrest. With the assistance of two

officers who arrived on the scene, the trooper was eventually able to take M.M. into custody. Later,

when the officers attempted to transfer M.M. from one patrol car to another, M.M. bit one of them on

the head.

               After her arrest, M.M. was charged by indictment for the felony offense of assault of a

public servant and by information for the misdemeanor offenses of DWI and resisting arrest. As part

of a plea bargain, the Travis County Attorney abandoned the DWI charge, M.M. pled no contest to the

resisting-arrest charge, and M.M. admitted guilt as to the felony offense of assault of a public servant.

Pursuant to section 12.45 of the penal code, M.M. asked the trial court to take the admitted felony




                                                    2
offense into consideration in sentencing her for the charge of resisting arrest. The trial court agreed to

do so and ultimately sentenced M.M. to two years’ deferred-adjudication community supervision.

               In 2007, M.M. filed a petition to expunge the records pertaining to the DWI and assault

charges. The Travis County District Attorney (“the DA”), the Travis County Attorney, and the Texas

Department of Public Safety opposed the petition for expunction, arguing that M.M. did not meet the

statutory criteria for expunction. After a hearing, the trial court granted M.M.’s petition. The DA

appeals from the trial court’s order.


                                        STANDARD OF REVIEW

               We use an abuse-of-discretion standard in reviewing trial-court rulings on petitions for

expunction. Heine v. Texas Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002,

pet. denied). A trial court abuses its discretion if it acts arbitrarily or unreasonably, without reference

to guiding rules and principles of law. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004). We

review the trial court’s legal conclusions de novo because the trial court has no discretion in

determining the meaning of the law or applying the law to the facts. See Texas Dep’t of Pub. Safety v.

Nail, 305 S.W.3d 673, 678 (Tex. App.—Austin 2010, no pet.).

               When construing statutes, we use a de novo standard of review, and our primary

objective is 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). To discern

that intent, we begin with the statute’s words. 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

                                                    3
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). 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).


                                            DISCUSSION

               This appeal is governed by a former version of article 55.01 of the code of criminal

procedure (“the expunction statute”), which sets out the requirements for expunction. See Act of

May 28, 2003, 78th Leg., R.S., ch. 1236, § 1, 2003 Tex. Gen. Laws 3499, 3499 (“former art. 55.01”)

(amended 2011) (current version at Tex. Code Crim. Proc. Ann. art. 55.01 (West Supp. 2011)); Heine,

92 S.W.3d at 648. 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.). “[A]

person is entitled to expunction only when all statutory conditions have been met.” Harris County Dist.

Att’y v. Lacafta, 965 S.W.2d 568, 569 (Tex. App.—Houston [14th Dist.] 1997, no pet.); see In re Wilson,

932 S.W.2d 263, 266 (Tex. App.—El Paso 1996, no writ). The trial court has no power to extend

equitable relief beyond the clear meaning of the expunction statute. Texas Dep’t of Pub. Safety v. J.H.J.,

                                                    4
274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.). 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. Houston Police Dep’t v. Berkowitz, 95 S.W.3d 457,

460 (Tex. App.—Houston [1st Dist.] 2002, pet. denied).

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

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:

       ....


       (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 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

                                                   5
              (C)     the person has not been convicted of a felony in the five years preceding
                      the date of the arrest.


Former art. 55.01. The current version of subarticle 55.01(a)(2) differs from the former subarticle,

but the introductory portion of the current version of subarticle 55.01(a) is identical to the former

version. Compare Tex. Code Crim. Proc. Ann. art. 55.01(a), (a)(2), with former art. 55.01(a), (a)(2).

In other words, both the current and the former versions specify that an individual is entitled to “have

all records and files relating to the arrest expunged” if certain criteria are met. Tex. Code Crim.

Proc. Ann. art. 55.01(a); former art. 55.01(a).

               M.M. contends on appeal that the trial court did not err in granting her petition for

expunction because she satisfied all of the requirements of the expunction statute with respect to her

DWI and assault charges. She asserts that the unit of expunction is “the criminal conduct [that]

forms the basis for a criminal charge,” not the criminal conduct that forms the basis for an arrest,

which could include several separate criminal charges. In other words, she contends that the

legislature’s use of the term “the arrest” in former subarticle 55.01(a) refers to each charge arising

from the arrest and that her DWI and assault charges can therefore be divorced from the other charge

and individually expunged.1 We disagree. Based on the plain language of the former expunction


       1
         Endorsing the construction offered by M.M. would lead to potentially serious problems for
law-enforcement personnel. See Tex. Gov’t Code Ann. § 311.023(5) (West 2005) (explaining that
courts may consider consequences of particular construction when ascertaining meaning of statute).
If we were to interpret “arrest” as referring to a charge arising from an arrest, then an individual
would have the ability to have expunged “all records and files relating to” a charge arising from his
arrest. See Tex. Code Crim. Proc. Ann. art. 55.01(a) (West Supp 2011); former art. 55.01(a). In
circumstances in which only a single charge follows an arrest, an individual would be able to have
all documents related to that charge expunged. The situation would be more problematic under

                                                   6
statute, we conclude that the statute only speaks to expunging the records relating to an arrest, not

individual records relating to a charge arising from an arrest.

               Specifically under the circumstances of this case, we conclude that M.M. is not

entitled to expunction of the DWI and assault charges because an indictment for the felony offense

of assault of a public servant was presented against her in this case and was not dismissed, thus

disqualifying her for expunction under former subarticle (a)(2)(A) of the statute as to any offense

arising out of the transaction for which she was arrested. See former art. 55.01(a)(2)(A). Our

conclusion is based on two determinations: (1) the felony indictment for assault of a public servant

presented against M.M. and taken into consideration in sentencing her for the resisting-arrest charge

was not dismissed, and (2) given that the indictment was not dismissed, M.M. is disqualified from

expunction under former subarticle (a)(2)(A) for all charges arising from her arrest. We address each

determination separately below.


Felony Indictment

               In the trial court, M.M. admitted guilt as to the felony charge of assault of a public

servant, and the trial court agreed to take the admitted offense into consideration in sentencing her



circumstances, like those present in this case, in which more than one charge stems from a single
arrest. The phrase “all records and files relating to” would seem broad enough to include all
documents that discuss or refer to the charge that is the subject of the expunction motion even if
those documents also discuss other charges that resulted from the arrest. Accordingly, provided that
the requirements of article 55.01 were met, an individual would be entitled to expunge documents
that bear upon charges for which expunction was not sought, even if those charges were successfully
prosecuted. Moreover, law-enforcement personnel would be forced to comb through all records
pertaining to and following the arrest to see what documents mentioned the charge at issue. Nothing
in the language of the former statute persuades us that the legislature intended to impose such an
onerous burden on law-enforcement officials. See former art. 55.01.


                                                  7
on the resisting-arrest charge. The trial court did so pursuant to section 12.45 of the penal code,

which states:


       (a)      A person may, with the consent of the attorney for the state, admit during the
                sentencing hearing his guilt of one or more unadjudicated offenses and
                request the court to take each into account in determining sentence for the
                offense or offenses of which he stands adjudged guilty.

       (b)      Before a court may take into account an admitted offense over which
                exclusive venue lies in another county or district, the court must obtain
                permission from the prosecuting attorney with jurisdiction over the offense.

       (c)      If a court lawfully takes into account an admitted offense, prosecution is
                barred for that offense.


Tex. Penal Code Ann. § 12.45. The trial court later granted M.M.’s petition to expunge the felony

charge, concluding that the charge had been dismissed when it was taken into consideration under

section 12.45.2 On appeal, the DA contends that the trial court erred in granting the expunction

because an admitted offense taken into consideration under section 12.45 does not constitute a

dismissal under former subarticle (a)(2)(A) of the expunction statute. In response, M.M. argues that

an admitted offense taken into account under section 12.45 “resembles” a dismissal and is the

functional equivalent of a dismissal because the felony proceedings did not result in a conviction or

acquittal and were “terminated solely in her favor.” We disagree with M.M.

                Although M.M. correctly points out that the State could no longer prosecute her on

the assault charge under the terms of section 12.45, see id., that is not the same as a dismissal, see


       2
          The trial court issued findings of fact and conclusions of law in which it specifically
concluded that the felony indictment presented against M.M. “was dismissed due to the proceedings
that occurred pursuant to Tex. P. Code. § 12.45.”

                                                  8
Black’s Law Dictionary 537 (9th ed. 2009) (defining “dismissal” as “[t]ermination of an action or

claim without further hearing, esp[ecially] before the trial of the issues involved”). To begin with,

the record in this case does not contain a motion by the State seeking to dismiss the felony assault

charge, and accordingly, there is no order dismissing the charge. Further, the plain language of

section 12.45 does not include the word “dismissal” or otherwise suggest that an admitted offense

under the statute should be or is dismissed at the time that it is taken into consideration in the

sentencing of another offense. Moreover, unlike a dismissal in which there is a termination of the

action without consideration of a defendant’s guilt for the crime alleged, in this case, M.M.’s

culpability for the felony assault charge was considered by the trial court in sentencing M.M. on the

resisting-arrest charge. In light of the preceding, we must conclude that even though the State was

not permitted to prosecute her for the admitted offense, that indictment was not dismissed and

remained pending.

                M.M. also references definitions of “dismissal” addressed in the DA’s brief and

argues that if the definitions apply to this case, then the trial court’s consideration of the admitted

offense pursuant to section 12.45 falls within the definitions. See State v. Moreno, 807 S.W.2d 327,

329, 332 (Tex. Crim. App. 1991) (defining “dismisse[d]” as “effectively terminat[ing] the prosecution

in favor of the defendant”); Harris County Dist. Attorney’s Office v. R.R.R., 928 S.W.2d 260, 264

(Tex. App.—Houston [14th Dist.] 1996, no writ) (defining “dismissed” as “essentially terminat[ing]

the proceedings”). To begin with, Moreno is distinguishable from this case because the definition

of “dismisse[d]” discussed in Moreno pertains to article 44.01 of the code of criminal procedure,

which addresses appeals by the State, not article 55.01. See Tex. Code Crim. Proc. Ann. art. 44.01(a)(1)



                                                   9
(West Supp. 2011). Further, even assuming that the definition in Moreno applies here, the action

taken regarding the felony indictment presented against M.M. does not fit within Moreno’s definition

of “dismisse[d]” because the felony prosecution was not terminated in favor of M.M. Rather, the

trial court took M.M.’s admission of guilt as to the felony offense into consideration when it

sentenced her for resisting arrest, thus allowing for the possibility of an increased sentence, which

is contrary to the concept that the case was terminated in M.M.’s favor.

               R.R.R. is also distinguishable from this case because there, the indictment presented

against the defendant was quashed, and the prosecutor notified the defendant that the State would

not reindict the defendant for that offense. 928 S.W.2d at 263. The two actions indicated to the

R.R.R. court that there was an absence of probable cause. Id. at 264. Thus, R.R.R. was consistent

with Moreno’s definition of “dismissal” because in R.R.R., the proceedings against the defendant

were terminated in the defendant’s favor. Here, the trial court took no action on the felony

indictment, and the felony proceedings were not terminated in M.M.’s favor.

               Further, holding that an offense taken into account under section 12.45 constituted

a dismissal under former subarticle (a)(2)(A) of the expunction statute would not be consistent with

a primary purpose of the expunction statute, which is to permit the expunction of records of

wrongful arrests. Harris County Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991);

T.C.R. v. Bell County Dist. Attorney’s Office, 305 S.W.3d 661, 671 (Tex. App.—Austin 2009,

no pet.). When a defendant admits guilt as to an offense arising out of an arrest, she necessarily

admits that she was not wrongfully arrested. 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



                                                 10
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.M. admitted guilt as to the felony assault

charge, and the offense was taken into account in sentencing her on the resisting-arrest charge. By

admitting guilt as to the assault charge, she also admitted that her arrest was not wrongful. See

P.D.H., 823 S.W.2d at 793; J.T.S., 807 S.W.2d at 574.

                For all of the reasons given above, we hold that the trial court erred in determining

that consideration of M.M.’s admission of guilt as to the assault charge in sentencing her on the

resisting-arrest charge pursuant to section 12.45 constituted a “dismissal” of the assault charge under

former subarticle (a)(2)(A) of the expunction statute.


Former Subarticle (a)(2)(A)

                Having determined that M.M.’s felony assault charge was not dismissed, we must

also conclude that M.M. failed to satisfy former subarticle (a)(2)(A) of the expunction statute, which

requires that any felony indictment presented as a result of an arrest be dismissed before a person can

obtain expunction of an arrest record. Specifically, former subarticles (a) and (a)(2)(A) state, in

relevant part, that:


        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:



                                                  11
          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.


Former art. 55.01(a), (a)(2)(A).

                 Neither party makes a specific argument regarding former subarticle (a)(2)(A) of

the expunction statute. Rather, the parties focus on former subarticle (a)(2)(B) of the statute,

which sets forth the second requirement that must be satisfied before a person is entitled to

expunction. See id. (a)(2)(B). However, M.M. does not reach the second requirement because

she does not satisfy the first requirement. As previously stated, we use a de novo standard of

review in construing statutes and in reviewing the trial court’s legal conclusions, and an

individual is only entitled to expunction if she satisfies all of the statutory requirements. See

F.F.P. Operating Partners, 237 S.W.3d at 683; Nail, 305 S.W.3d at 678; Lacafta, 965 S.W.2d

at 569. Thus, regardless of the focus of the parties’ briefs, we conclude that if M.M. fails to

satisfy any of the requisites of the expunction statute, she is not entitled to expunction as a matter

of law.

                 M.M. does not satisfy the first requirement of the expunction statute as set forth

under former subarticle (a)(2)(A) because former subarticles (a) and (a)(2)(A) permit the

expunction of records pertaining to the arrest, not to individual charges arising from the arrest.

Specifically, former subarticle (a) sets forth the relief that will be granted to a person who meets

the requirements of the statute, stating that a person is entitled to have “all records and files

relating to the arrest expunged” (emphasis added) if the person meets the three requirements set



                                                  12
forth in subparts (A), (B), and (C) of former subarticle (a)(2) of the statute. Thus, from the

beginning of the statute, the plain language refers to “the arrest” and grants relief related to “the

arrest,” not to individual charges arising from the arrest.

                The plain language in former subarticle (a)(2)(A) is consistent with that in former

subarticle (a). Former subarticle (a)(2)(A) requires that:


        an indictment or information charging the person with commission of a felony
        [was not] 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
        [was] dismissed or quashed.


Former art. 55.01(a)(2)(A) (emphasis added). Based on the italicized portion of the provision,

a trial court may not expunge an arrest record if the transaction for which the person was arrested

resulted in a felony indictment that was not dismissed. Thus, former subarticle (a)(2)(A)

disqualifies a person from expunction for all charges arising from the arrest if any felony

indictment was presented for any offense arising from the arrest. This meaning is made especially

clear given the language of former subarticle (a), which refers only to “the arrest” and states that

the relief that would be granted if a defendant meets the necessary requirements is expunction

of “all records and files relating to the arrest.” Because M.M. was presented with a felony

indictment that was not dismissed, she does not satisfy the first requirement for expunction and

is not entitled to expunction of any of the records arising from her arrest.

                To hold otherwise would require us to change various portions of the language in

former subarticles (a) and (a)(2)(A). For example, we would first need to read subarticle (a) as



                                                 13
 authorizing the expunction of all records and files relating to “each charge arising from the

 arrest,” rather than “the arrest.” We would then need to read subarticle (a)(2)(A) as prohibiting

 the presentation of a felony indictment for “the charge the person is seeking to expunge”

 rather than for “an offense arising out of the transaction for which the person was arrested.” As

 we previously stated, an individual must comply with all of the requirements in order to be

 entitled to expunction, and courts do not have equitable power to grant relief beyond the

 plain language of the expunction statute. S.C., 305 S.W.3d at 260; J.H.J., 274 S.W.3d at 806;

 Lacafta, 965 S.W.2d at 569. We cannot ignore or alter various portions of the language of the

 statute in order to achieve a construction that allows for the expunction of one of multiple charges

 arising from an arrest.

                Further, allowing a person to expunge individual charges when there is no

 suggestion that the arrest that resulted in the charges was wrongful would be contrary to a primary

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

 expunged, see J.T.S., 807 S.W.2d at 574. Here, M.M. admitted guilt as to the assault charge, was

 convicted of the resisting-arrest charge, and was not prosecuted for the DWI charge only because

 the county attorney abandoned the charge as part of a plea bargain. As previously stated, an

 admission of guilt as to an offense arising from an arrest is also an admission that the arrest was

 not wrongful.3 See P.D.H., 823S.W.2d at 793; J.T.S., 807 S.W.2d at 574.




       3
          The Texas Supreme Court has stated, “[t]he public has an important interest in arrest
records being kept for use in subsequent punishment proceedings, including subsequent applications
for probation. These records are valuable to document and deter recidivism.” Harris County Dist.
Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991).

                                                 14
                 We recognize that former subarticle (a)(2)(B) makes reference to the phrase

 “the charge” in setting forth the second requirement necessary for expunction, but under the

 circumstances of this case, M.M. does not reach the second requirement because she does not

 satisfy the first requirement. Even if she were not disqualified under the first requirement, a

 reference to “the charge” in one provision of the statute does not change the plain language of

 former subarticles (a) and (a)(2)(A), which are written from the perspective of “the arrest” and

 which are consistent with the primary purpose of the statute. Any conflict in the language of the

 statute must be resolved by the legislature, not the courts. If the legislature intends something

 different, it could amend the statute to authorize the expunction of all records and files relating

 to an individual charge, rather than an arrest, and could further clarify the requirements for

 expunction to make it clear that each charge may be expunged individually if it meets the

 necessary requirements, even if the arrest itself was not wrongful and even if the arrest resulted

 in a conviction on another charge.4

                 Under the terms of the former statute, M.M. is not entitled to expunction of her

 DWI and assault charges because she fails to satisfy the first requirement for expunction.

 Specifically, she was presented with a felony indictment for assault of a public servant that was

 not dismissed, thus disqualifying her for expunction under former subarticle (a)(2)(A) of the




       4
         The former expunction statute did not provide an absolute bar to the retention of a wrongful
arrest on a person’s record. Even when people satisfied the first two requirements of the former
expunction statute and showed that they were in fact wrongfully arrested, they still had to prove that
they were not convicted of a felony in the five years preceding the date of the arrest. Former art.
55.01(a)(2)(C). If they were so convicted, the arrest would stay on their record even though it was
proven to be wrongful.

                                                 15
 expunction statute.5 Accordingly, the trial court abused its discretion in expunging M.M.’s DWI

 and assault charges.


                                          CONCLUSION

                 In light of the foregoing, we reverse the trial court’s expunction order and render

 judgment denying expunction for M.M.’s DWI and assault charges.



                                                 _________________________________________

                                                 David Puryear, Justice

 Before Chief Justice Jones, Justices Puryear, Pemberton, Henson, Rose, and Goodwin

 Reversed and Rendered on Reconsideration En Banc

 Filed: December 8, 2011


       5
           The analysis in this case conflicts with the analysis employed by this Court in a prior
memorandum opinion. See S.P.S. v. State, No. 03-09-00151-CV, 2010 Tex. App. LEXIS 1358
(Tex. App.—Austin Feb. 26, 2010, no pet.) (mem. op.). In S.P.S., the defendant was arrested and
charged with the felony offenses of criminal mischief and burglary of a vehicle. Id. at *1. Like this
case, the defendant in S.P.S. pled guilty to one of the charges, and the State abandoned the other
charge as part of a plea bargain. Id. Ultimately, this Court concluded in S.P.S. that the defendant
was entitled to the expunction of the abandoned charge because he satisfied the requirements of the
expunction statute with respect to that charge. Id. at *10-11. In reaching this result, we primarily
relied on another appellate court’s decision that had previously concluded that article 55.01
authorized the expunction “of less than all charges arising from a single arrest.” See Ex parte E.E.H.,
869 S.W.2d 496, 498 (Tex. App.—Houston [1st Dist.] 1993, writ denied). However, as discussed
above, we hold in this opinion that former article 55.01 only authorizes the expunction of records
relating to an arrest and does not explicitly authorize expunction of records relating to individual
charges arising from an arrest. Accordingly, we decline to follow the analysis employed in our prior
memorandum opinion and respectfully disagree with the opinions of our sister courts of appeals to
the extent that they have permitted the expunction of an individual charge arising from a multiple-
charge arrest. See Ex parte E.E.H., 869 S.W.2d at 498; see also State v. Knight, 813 S.W.2d 210,
211-12 (Tex. App.—Houston [14th Dist.] 1991, no writ) (reversing portion of trial court’s order that
expunged records pertaining to charges for tampering with governmental record and aggravated
perjury but affirming portion of order expunging record for other misdemeanor charge for tampering
with governmental record that was dismissed as part of plea bargain).

                                                  16
