Some 2011 changes to the Texas expungement statute may give folks opportunity to successfully expunge separate offenses arising from a single arrest event. Prior to September 2011, the Texas expungement statute [Texas Code of Criminal Procedure, art. 55.01(a)] had been interpreted by courts to disallow the expungement of separate offenses arising from the same arrest event. Imagine a client was arrested for driving while intoxicated and the police found marijuana in the console, as well. The client was booked for DWI and POM. Months later, as part of a plea bargain, they plead guilty to marijuana possession and received deferred adjudication probation. The DWI was dismissed pursuant to the agreement. Once the client successfully completed the deferred they were eligible for non-disclosure and would be regularly granted said order, thereby sealing the marijuana record from public viewing. However, (in Brazos County, at least) if the client sought to later expunge the DWI arrest they were met with opposition from county prosecutors, the Texas Department of Public Safety, and local judges. Historically, courts of appeal have held individual offenses could not be carved-out of a single arrest event for purposes of expungement if the person had received TCCP art. 42.12 probation for any offense arising out of the same arrest. Our client was denied an expunction on this very issue and has an appeal pending in the San Antonio Fourth Court of Appeals.

The former version of article 55.01(a) in effect prior to September 1, 2011 read: “(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: (a)(2)(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 . . . ” (emphasis added).

The current version of article 55.01(a), effective September 1, 2011 reads: “(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: (a)(2)(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 the offense, unless the offense is a Class C misdemeanor . . . ” (emphasis added).

The change in words from “any” in the former version, to “the” in the current version of article 55.01(a) suggests the Legislature demonstrated its intent to make offenses arising from the same arrest event divisible for purposes of the expunction statute. Looking at the current statute as a whole, the change from “any” to “the” comports with the intent to treat offenses separately. [See p. 8, footnote no. 1, Ex parte M.R.L., 10-11-00275-CV (Tex. App. Waco 2012)] Furthermore, the Legislative history regarding the 2011 article 55.01(a) amendments also demonstrated this intent to authorize the expunction of all records and files relating to an individual charge/offense rather than an arrest. The Legislative history clarified the requirements for expunction to make it clear that each offense may be expunged individually if it met the necessary statutory requirements.

The history of S.B. 462 (2011) demonstrated the sponsor’s intent that the amendments proposed to article 55.01(a) of the Texas Code of Criminal Procedure would address the issues related to expunctions of criminal charges when a case had been dismissed. “If a case has been dismissed, is no longer under investigation and the subject no longer faces prosecution for the offense, an individual should be able to have a record expunged.” (S.B. 462, Bill Analysis and Sponsor’s Statement of Intent, April 8, 2011, by West, p. 1 of 3, emphasis added).

The history of H.B. 351 (2011) further demonstrated the sponsor’s intent that the amendments proposed to article 55.01(a), Texas expungement statute, would address the issues related to expunctions of criminal charges when a case had been dismissed. “The second objective of H.B. 351 addresses the ability to expunge the records related to an offense where the case has been dismissed. This issue was also addressed within S.B. 462 that passed the Texas Senate during this legislative session.” (H.B. 351, Bill Analysis and Sponsor’s Statement of Intent, May 16, 2011, by Veasey (West), p. 1 of 5) “If a case has been dismissed, is no longer under investigation and the subject no longer faces prosecution for the offense, the subject should be able to have a record expunged.” ( Id., emphasis added). Finally, the “Section by Section Analysis” of H.B. 351 revealed the change to article 55.01(a) which would achieve the sponsor’s intent to make expunctions divisible among offenses, within the same arrest event, for purposes of the expunction statute : “(2) 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 (Community Supervision) for the offense, unless the offense is a Class C misdemeanor . . .” (H.B. 351, Section by Section Analysis, May 16, 2011, by Veasey (West), p. 2 of 5).

If all goes well, the 2011 changes to the Texas expungement statute will offer new opportunities for persons seeking to carve-out offenses from a single arrest event for expungement. Bryan-College Station appeal attorneys should argue this important change and include cites to the Legislative history of the article 55.01(a) amendments. Hopefully, the court of appeals interpreting these changes will begin to see things our way. [But see, Texas Department of Public Safety v. Dicken, No. 04-12-00576-CV, 2013 WL 5477248 (Tex. App. San Antonio October 2, 2013, no pet.)(not designated for publication).

Addendum: Several lawyers contacted me for access to the briefs filed in this case. You can access the expunction briefs here on Dropbox.

Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

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