In re P.S.

658 S.W.3d 889

In the MATTER OF the Expunction of P.S.

No. 08-21-00159-CV

Court of Appeals of Texas, El Paso.

December 19, 2022

ATTORNEY FOR APPELLANT: Alexandria Serra, 718 Myrtle Ave., El Paso, TX 79901.

ATTORNEY FOR APPELLEE: Dana Irwin Carmona, Assistant County Attorney, 500 E. San Antonio Room 503, El Paso, TX 79901.

Before Rodriguez, C.J., Palafox, and Alley, JJ.

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

Appellant, P.S., appeals from a judgment denying her petition for expunction. For the reasons that follow, we affirm.

BACKGROUND

Factual & Procedural Background

P.S. was arrested and charged by information for assault, causes bodily injury of a family member ("assault family violence"), in Cause No. 20170C09122 on October 27, 2017. The information charged P.S. with intentionally, knowingly, or recklessly causing bodily injury to N.M., her then-boyfriend, by striking him or scratching about the head with her hand. A few months later, on March 14, 2018, P.S. was arrested again for assault family violence against A.S., P.S.’s mother. On May 2, 2018, P.S. was indicted for continuous violence against the family ("continuous family violence").¹

The felony indictment, Cause No. 20180D02176, alleged P.S. intentionally, knowingly, or recklessly caused bodily injury to A.S. on March 14, 2018 by striking her about the body with her hand, and on or about October 27, 2017, P.S. intentionally, knowingly, or recklessly caused bodily injury to N.M., and said conduct by P.S. occurred during a period of twelve months or less.

On May 8, 2018, Cause No. 20170C09122, the original assault family violence charge, was dismissed. The motion stated the reason for dismissal as, "[t]he case has been refiled: as a continuous family violence[.]" In sum, Cause No. 20170C09122 was dismissed and refiled as a felony indictment, Cause No. 20180D02176. On August 24, 2018, P.S. entered a guilty plea in Cause No. 20180D02176 to the lesser included offense, assault causes bodily injury to a family member or person with whom she had a dating relationship. On August 24, 2018, P.S.’s adjudication in Cause No. 20180D02176 was deferred, and P.S. was placed on community supervision for two years. P.S. completed the community supervision and the proceedings for Cause No. 20180D02176 were thereby dismissed on June 3, 2021.

P.S. filed a petition for the expunction of records pertaining to her arrest for assault family violence in Cause No. 20170C09122.² P.S. did not attach exhibits to her petition; however, in the County's response to the petition, it did attach the 2017 information (Cause No. 20170C09122), the motion dismissing Cause No. 20170C09122, the 2017 felony indictment (Cause No. 20180D02176), the order of deferred adjudication, and the order discharging P.S. from community supervision.

After holding a hearing on the matter, the trial court denied P.S.’s petition for expunction on August 18, 2021, because that misdemeanor offense formed the basis of Cause No. 20180D02176. At the request of P.S., the trial court entered written findings of fact and conclusions of law consistent with its judgment on the petition for expunction for Cause No. 20170C09122. The findings of fact and conclusions of law are as follow:

Findings of Fact

1. On or about the 27th day of October, 2017, Petitioner P.S. was arrested by officers of the El Paso Police Department for an Assault Causing Bodily Injury Family Violence offense allegedly occurring on the same date and against a victim with the initials N.M. The police report for that incident was numbered 05-281218.

2. On or about the 27th day of October, 2017, an information was filed in the County Court at Law No. Two charging Petitioner P.S. with Assault Family Violence for the alleged assault against N.M. The Cause Number assigned to the case was 20170C09122.

3. On or about the 2nd day of May, 2018, an indictment filed in the 205th District Court accused Petitioner P.S. of Continuous Violence against the Family based on 1) an alleged assault against A.S. on the 14th day of March, 2018, and 2) the alleged assault against N.M. on the 27th day of October 2017. The Cause Number assigned to the case was 20180D02176.

4. On or about the 8th day of May, 2018, the Presiding Judge of County Court at Law No. Two signed a Motion to Dismiss in Cause Number 20170C09122. The reason for the dismissal was that the case had been refiled as ‘continuous family violence.’

5. On or about the 24th day of August, 2018, Petitioner P.S. entered a plea in cause number 20180D02176 to an offense of Assault Causes Bodily Injury/Date/Family/House; A Lesser Included Offense. The Degree of Offense is a Class A Misdemeanor. The Adjudication of Guilt was deferred, and Petitioner P.S. was placed on Two (2) years of Community Supervision.

6. On or about the 3rd day of June 2021, Petitioner P.S. was discharged from Community Supervision under Tex. Code. [sic] Crim. Proc. Art. 42A.lll (Deferred Adjudication) after having completed thirty-three months of Community Supervision.

7. On are about the 17th day of May, 2021, Petitioner P.S. filed a Petition for Expunction Records in the above-captioned cause seeking to expunge records related to the 27th day of October, 2017 arrest for misdemeanor assault and the associated court documents in cause number 20170C09122.

Conclusions of Law

1. Chapter 55, Tex. Code Crim. Proc. allows a person who has been arrested to expunge ‘all records and files relating to the arrest’ if the person was released, the charge did not result in a final conviction, and there was no court ordered community supervision.

2. The right to expunction is a statutory privilege; all provisions are mandatory and exclusive, and a person is entitled to expunction only when all of the conditions have been met.

3. Tex. Code Crim. Proc. art. 55.01(a)(2)(A) proscribes an ‘arrest-based’ analysis of eligibility to expunction where a felony arose ‘out of the same transaction for which the person was arrested.’

4. The Court concludes that two distinct charges arose from the same incident and alleged conduct that led to Petitioner P.S.’s arrest on the 27th day of October 2017, specifically the alleged assault on that same date against N.M., a person with whom Petitioner P.S. had a dating relationship.

5. The Court further concludes that a felony charge thus arose out of the same transaction as the misdemeanor offense for which Petitioner P.S. was arrested, and thus both causes must be eligible for expunction or neither cause nor the underlying arrest records qualify for expunction.

6. The Court further concludes that Petitioner P.S.’s plea of guilty to a lesser included offense in the felony cause was an admission that the underlying arrest was not unlawful.

7. The Court further concludes that as a result of Petitioner P.S.’s plea of guilty, the presiding Court deferred adjudication of guilt for the lesser included offense and placed Petitioner P.S. on two years of community supervision.

8. The Court thus concludes that a plea of guilty and a term of community supervision was entered in a felony offense that arose from the same transaction as the misdemeanor offense for which expunction was sought.

9. The Court thus rules that Petitioner P.S. has not met the statutory requirements for expunction of any records or files related to the 27th day of October, 2017 incident or arrest to include the records and files related to cause number 20170C09122, and as such, the Petition for Expunction should be DENIED as to the incident that formed the basis of that cause.

This appeal followed.

DISCUSSION

In a single issue, P.S. argues the trial court erred when it denied her petition for expunction in Cause No. 20170C09122. She asserts the offense arising out of that arrest met all of the elements of Article 55.01(a)(2) of the Texas Code of Criminal Procedure as interpreted by Ex parte R.P.G.P. , 623 S.W.3d 313 (Tex. 2021). We disagree.

Standard of Review

A trial court's expunction order is reviewed for abuse of discretion, while the meaning of a statute is a question of law reviewed de novo. Id. at 317 (citing State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018) ). "Statutes are to be analyzed ‘as a cohesive, contextual whole’ with the goal of effectuating the Legislature's intent and employing the presumption that the Legislature intended a just and reasonable result." T.S.N. , 547 S.W.3d at 620. Under the abuse of discretion standard, reviewing courts afford no deference to the trial court's legal determinations; thus, a trial court's legal conclusions are reviewed de novo. Id. (citing State v. Heal , 917 S.W.2d 6, 9 (Tex. 1996) ).

Applicable Law

Article 55.01 of the Texas Code of Criminal Procedure governs expunction, which is a civil remedy. Ex parte R.P.G.P. , 623 S.W.3d at 316. Expunction allows the individual arrested to "deny the occurrence of the arrest and [deny] the existence of the expunction order [except in a criminal proceeding]" and prohibits governmental and private entities named in the order from releasing, maintaining, disseminating, or using the expunged records and files "for any purpose." Id. [Internal quotation marks omitted]; TEX.CODE CRIM.PROC.ANN. art. 55.03. The remedy is a privilege defined by the Legislature, not a constitutional or common-law right. Ex parte R.P.G.P. , 623 S.W.3d at 316. Accordingly, the statutory requirements of Article 55.01 are mandatory, exclusive, and cannot be equitably expanded by the courts. Id.

At issue in this appeal is Article 55.01(a)(2), which allows a person who has been arrested to expunge all records and files related to an arrest where the person was released, the charge did not result in a final conviction and is no longer pending, and there was no court-ordered community supervision for the offense. TEX.CODE CRIM.PROC.ANN. art. 55.01(a)(2). Texas courts are not aligned in their approach to expunction of arrest records involving multiple offenses. Ex parte R.P.G.P. , 623 S.W.3d at 317. Under the prevailing view, Article 55.01(...