## NUMBER 13

- 20

- 00 242

- C V

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

– EDINBURG

EX PARTE L.M.L.

On appeal from the 28th District Court

of Nueces County

, Texas.



## MEMORANDUM OPINION

Before Justices Benavides, Hinojosa, and Silva

Memorandum Opinion by Justice Silva

Appellant the Texas Department of Public Safety (the Department) appeals an

order expunging all files and records relating to appellee L.M.L. ’ s multiple arrest s

. By a

single issue, the Department argues that the trial court ’ s order of expunction is not

supported by legally sufficient evidence. We affirm

.

I. B ACKGROUND

On October 28

, 2019

, L.M.L

. filed a first amended petition for expunction pursuant

to a rticle 55.0 1 of the Texas Code of Criminal Procedure, seeking to expunge records2 relating to fifteen charges

. 1 See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 55.01. The fifteen

charges L.M.L. sought to expunge all stemmed from eight arrest dates : December 12,

2005

, October 25, 2011

, June 20, 2012, October 5, 2012

, May 22, 2013, February 8,

2013, March 23, 2015, and May 29, 2015.

On December 30, 2019

, the Department filed its original answer and general

denial, arguing L.M.L. was not entitled to an expunction on any charges from arrests

occurring on October 5, 2012, February 8, 2013, March 23, 2015, and March 29, 2015.

The Department argued L.M.L. ’ s arrests on the aforementioned dates had resulted in

court

- ordered community supervision and attached copies of the information and order

placing L.M.L. on community supervision which indicated the following:

• On or about October 5, 2012, L.M.L. was arrested for possession of

a controlled substance in penalty group 3 in an amount less than

twenty

- eight grams (count one), a Class A misdemeanor, and

possession of marijuana less than two ounces (count two), a Class

B misdemeanor. See T EX

. H EALTH & S AFETY C ODE A NN

. § § 481.117(b); 481.121(b)(1). On May 13, 2014, in trial court cause

no. CR14002430

- 1, the charge of possession of a controlled

substance (count one) was dismissed after L.M.L. “ presented proof

of a valid prescription

, ” and L.M.L. pleaded guilty and was placed on

deferred adjudication for a period of one year for possession of

marijuana (count two). The trial court signed an order of discharge

from community supervision and dismissal because “ the community

supervision period

. . . has expired ” on June 6, 2016.

• On or about February 8, 2013, L.M.L. was arrested for possession of

a controlled substance, penalty group 1, between one and four

grams, (methamphetamine), a third

- degree felony

, possession of

marijuana less than two ounces, a Class B misdemeanor, and

possession of a controlled substance in penalty group 3 in an amount

less than twenty

- eight grams, a Class A misdemeanor. See T EX

. H EALTH & S AFETY C ODE A NN

. § § 481.115(c); 481.117(b);

481.121(b)(1)

. On April 28, 2014, in trial court cause no.

CR13000370

- A, L .M.L. pleaded guilty to the felony offense of

1 During a hearing on L.M.L.’s motion, L.M.L. asserted she sought to expunge thirty arrests. The

trial court maintained that only fifteen requests for expungement were ple ade d; therefore, it would only

consider those.3 possession of a controlled substance and was placed on deferred

adjudication for a period of five years ; on May 25, 2017, the trial court

granted early termination of community supervision. On May 13,

2014, in trial court cause no. CR14000377

- 1, the charge of

misdemeanor possession of a controlled substance (count two) was

dismissed after L.M.L. presented a valid prescription, and L.M.L.

pleaded guilty to possession of marijuana (count on e) ; L.M.L. was

placed on deferred adjudication for a period of one year. See id.

While no signed order was included in the clerk ’ s record, the register

of actions in th e trial court cause no. CR14000377

- 1 was admitted

and indicates a motion for revocation was filed, and an “ order of

discharge f[ro]m [ comm unity] supervision and dismissal ” was signed

on June 6, 2016.

• On or about March 23, 2015, L.M.L. was arrested for possession of

a controlled substance in penalty group 3 in an amount less than

twenty

- eight grams (count one), a Class A misdemeanor, possession

of a dangerous drug (counts two and three), a Class A misdemeanor

, and unlawful carrying of a weapon (count four), a Class A

misdemeanor

. See id. § § 481.117(b), 483.041 ; T EX

. P ENAL C ODE

A NN

. § 46.02 (b)

. On February 1, 2016, in trial court cause no.

CR15002626

- 1, the State dismissed charges of possession of a

controlled substance (count one), and possession of a dangerous

drug (counts two and three), after L.M.L. provided proof of valid

prescriptions. L.M.L. pleaded guil ty to unlawful carrying of a weapon

(count four) and was placed on deferred adjudication for one year.

On February 22, 2017, L.M.L. was satisfactorily discharged from

probation.

• On or about March 29, 2015, L.M.L. was arrested for possession of

a prohibited weapon (count one), a Class A misdemeanor,

possession of marijuana less than two ounces (count two), a Class

B misdemeanor, possession of a controlled substance in penalty

group 3 in an amount less than twenty

- eight grams (count three), a

Class A misdemeanor, and possession of a dangerous drug (counts

four, five, and six), a Class A misdemeanor. See T EX

. H EALTH &

S AFETY C ODE A NN

. § § 481.117(b), 481.121(b)(1), 483.041 ; T EX

. P ENAL C ODE A NN

. § 46.05(a)(2) repealed by Act of May 25, 2019,

86th Leg., ch. 216 (H.B. 446), § 2, eff. Sept. 1, 2019

. On February 1,

2016, in trial court cause no. CR16000370

- 1, the State dismissed

charges of possession of a controlled substance (count three) and

possession of a dangerous drug (counts four, five, and six) after

L.M.L. provided proof of valid prescriptions. L.M.L. pleaded guilty to

possession of a prohibited weapon (count one) and possession of

marijuana (count two) and was placed on deferred adjudication for4 one year. On February 22, 2017, L.M.L. was satisfactorily discharged

from probation.

The trial court held a hearing on L.M.L. ’ s motion for expunction on January 10,

2020. The Department was not in attendance. The Nueces County District Attorney ’ s

Office ( the State) reiterated the Department ’ s lack of opposition to the expunction of

charges from L.M.L. ’ s December 12, 2005, October 25, 2011, June 20, 2012, and May

22, 2013 arrests. As to the remaining arrests, the State maintained L.M.L. ’ s court ordered

community supervision arising from the same transactions precluded her from expunction

eligibility. L.M.L. argued contrary, urging the trial court to employ a charge

- based analysis.

L.M.L. asserted that though she had been arrested on multiple charges on each of those

four respective dates

, the charges she sought expunction for were those that she was not

placed on community supervision for , and therefore, the charges were eligible for

expunction

.

On February 27, 2020, the trial court entered “findings and rulings ” asserting in

part that : (1) i n trial court cause no. CR14002430

- 1, L.M.L. was “ wrongfully arrested ” on

October 5, 2012

, for possession of a controlled substance (count one); therefore,

expunction was granted as to count one but denied as to count two; (2) i n trial court cause

no. CR14000377

- 1, L.M.L. was “ wrongfully arrested ” on February 8, 2013

, for possession

of a controlled substance (count two); therefore, expunction was granted as to count two

but denied as to count one; ( 3 ) i n trial court cause no. CR15002626

- 1, L.M.L. was

“ wrongfully arrested ” on March 23, 2015 for possession of a controlled substance (count

one) and possession of a dangerous drug (counts two and three); therefore, expunction

was granted as to counts one, two and three, but denied as to count four ; and ( 4 ) i n trial

court cause no. CR16000370

- 1, L.M.L. was “ wrongfully arrested ” on May 29, 2015

, for5 possession of a controlled substance (count three) and possession of a dangerous drug

(counts four, five, and six); therefore, expunction was granted as to counts three, four,

five, and six but denied as to counts one and two

.

O n May 11, 2020, t he trial court signed an order

, granting expunction in each of

the aforementioned arrests, including those which the Department did not challenge . The

trial court further found that L.M.L. is “ entitled to expunction as provided by [a] rticle

55.01(a)(2)(A) ” because “ the charge [s] ha [d] not resulted in a final conviction

and

. . . there was no court

- ordered community supervision under Chapter 42A of the

Texas Code of Criminal Procedure. ” See T EX

. C ODE C RIM

. P ROC

. A NN

. art s

. 42A, 55.0 1

.

The Department timely appealed

. See T EX

. R. A PP

. P. 26.1.

II. E XPUNCTION

The Department argues the trial court erroneously granted L.M.L. ’ s challenged

expunction s because though the charges she seeks to be expunged were dismissed

,

L.M.L. pleaded guilty and was ordered to deferred adjudication community supervision

for charges arising out of those same arrests. 2

A. Standard of Review and Applicable Law

Expunction is a statutory privilege and not a constitutional or common law right. Ex

parte E.H.

, 602 S.W.3d 486, 489 (Tex. 2020). The remedy of expunction permits a person

who has been arrested for the commission of a criminal offense and who meets certain

other conditions to have the opportunity to have all records and files related to that arrest

removed from the government ’ s records. See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 55.01

–

2 T he Department does not challenge the trial court’s finding that L.M.L. was wrongfully arrested

for the aforementioned charges . Instead, the D epartment argues that “ even where ” the trial court makes

such findings, “all records and files relating to an arrest must be eligible for expunction.”6 .02. Although the statute is codified in the Texas Code of Criminal Procedure, an

expunction proceeding is civil in nature. Ex parte E.H.

, 602 S.W.3d at 489 (citing State v.

T.S.N.

, 547 S.W.3d 617, 619 (Tex. 2018)). Thus, it is the petitioner ’ s burden to show that

all the statutory conditions

— each mandatory and exclusive

— have been met. Id. “ [C]ourts

must enforce the statutory requirements and ‘ cannot add equitable or practical

exceptions

. . . that the legislature did not see fit to enact. ’” Id. (quoting In re Geomet

Recycling LLC

, 578 S.W.3d 82, 87 (Tex. 2019)).

We review the ruling on a petition for expunction under an abuse of discretion

standard. Ex parte E.H.

, 602 S.W.3d at 489. Under this standard, we afford no deference

to the trial court ’ s legal determinations because a court has no discretion in deciding what

the law is or in applying it to the facts. Id. When the trial court ’ s ruling on an expunction

petition turns on a question of law, we review that ruling de novo. Id. ; Tex. Dep ’ t of Pub.

Safety v. Ibarra

, 444 S.W.3d 735, 738 (Tex. App.

— Corpus Christi

– Edinburg 2014, pet.

denied).

A rticle 55.01 contains the requirements for expunction of criminal records. T EX

.

C ODE C RIM

. P ROC

. A NN

. art. 55.01. L.M.L. sought expunction pursuant to subsection

(a)(2), which provides in relevant part :

(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) 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

Chapter 42A for the offense, unless the offense is a Class C

misdemeanor, provided that:7 (A) regardless of whether any statute of limitations exists

for the offense and whether any limitations period for

the offense has expired, an indictment or information

[1] charging the person with the commission of a

misdemeanor offense based on the person ’ s arrest or

[2] charging the person with the commission of any

felony offense arising out of the same transaction for

which the person was arrested :

(i) has not been presented against the person at

any time following the arrest,

. . . [or]

(ii) if presented at any time following the arrest,

[but] was dismissed or quashed, and the court

finds that the indictment or information was

dismissed or quashed because:

. . . .

(d) 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;

. . . .

Id. (emphasis added).

T he Texas S upreme C ourt recently held that “ subarticles (a)(2) and (a)(2)(A) of

A rticle 55.01 of the Texas Code of Criminal Procedure are offense

- based provisions with

regard to misdemeanors but arrest

- based with respect to felonies. ” 3 Ex p arte R.P.G.P.

,

No. 19

- 1051, __ S.W.3d __, __, 2021 WL 1933952, * 9 (Tex. May 14 , 2021)

. The Court

clarified that t he “ [l] egislature reserved the broad ‘ arising out of ’ transactional

- relatedness

standard ” language found in subarticle (a)(2)(A) for felonies alone

. Id. In other words,

3 As the Texas Supreme Court observes in its opinion, under the prior prevailing view, many

appellate courts , including this Court, had “den[ied] expunction unless the petitioner establishe [d] that

multiple offense s comprising an arrest [were] eligible for expunction

. ” Ex p arte R.P.G.P.

, No. 19

- 1051,

__ S.W.3d __, __, 2021 WL 1933952 , * 4

, n.27 (Tex. May 14 , 2021)

.8 where a petitioner has been arrested for multiple misdemeanor offenses , provided that

the misdemeanor offense that the petitioner seeks to be exp unged meets the statutory

requirements , it does not matter whether all other offense s stemming from the same

arrest are also eligible for expunction under any a rticle 55.01 provisio n. See id

. (“ The

State is also incorrect in asserting that partial expunction is disallowed if a misdemeanor

offense arose out of the same transaction as an ine xpungable offense [.]”).

B. Analysis

U nder the facts of this case, t o obtain an expunction

, L.M.L. was required to testify

or present evidence to prove : 4

(1) [she] has been released;

(2) “the charge, if any, has not resulted in a final conviction”;

(3) “the charge, if any

. . . is no longer pending”;

(4) “there was no court ordered community supervision under Chapter

42A for the offense”; and

(5) “ provided that ” certain disjunctively stated conditions are satisfied.

As applicable here, expunc tion is available on satisfaction of the foregoing

prerequisites “provided that”:

(A)

. . . . an indictment or information [1] charging the person with

the commission of a misdemeanor offense based on the

person’s arrest or [2] charging the person with the commission

4 The Department correctly notes in its brief that L.M.L. did not specifically cite a rticle

55.01 (a)(2)(A)(ii)(d) in her petition for expunction or explicitly argue that “ 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 c ommitted the offense .” See T EX

. C ODE C RIM

. P ROC

. A NN . art.

55.01(a)(2)(A)(ii)(d). Rather, L.M.L. asserted she was generally entitled to expunction under

“55.01(a)(2)(A)” because “an indictment or information was presented, but the same was subsequently

dis missed or quashed,” and “the charge has not resulted in a final conviction and is no longer pending

. . . . ”

At the hearing on L.M.L.’s petition, however, L.M.L. argued that the several charges she sought expunction

for had been “dismissed for lack of prob able cause because she provided the prescriptions [sic] that she

hadn’t committed a crime by possessing those pills.” L.M.L. provided evidence in support. To the exten t

that the Department argues that L.M.L. did not properly seek relief under a rticle 55.01(a)(2)(A)(ii)(d), we

disagree.9 of any felony offense arising out of the same transaction for

which the person was arrested:

. . . .

(ii) if presented at any time following the arrest, was

dismissed or quashed, and the court finds that t he

indictment or information was dismissed or quashed

because:

. . . .

[(d) 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 per son

committed the offense

. . . .]

See id. (quoting T EX

. C ODE C RIM

. P ROC

. A NN

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

.

Notably, the facts of this case are similar to those before the Court in Ex parte

R.P.G.P

. In Ex parte R.P.G.P.

, the petitioner was arrested for driving while intoxicated

(DWI) and misdemeanor possession of marijuana. See id. at *1

– 2. The DWI charge was

dismissed following the petitioner’s successful completion of a pretrial intervention

program

, see T EX

. C ODE C RIM

. P ROC

. A NN

. art. 55.01(a)(2)(A )(ii)(c), and as part of a

comprehensive plea bargain, the petitioner pleaded no contest and was placed on

deferred adjudication on the misdemeanor marijuana possession charge. Ex parte

R.P.G.P.

, 2021 WL 1933952, at *6. The p etitioner thereafter sought to expunge the DWI

arrest records pursuant to a rticle 55.01(a)(2)(A). The Department in Ex parte R.P.G.P.

argued, as the Department does here, that petitioner was ineligible for expunction of the

DWI charge because the mari juana charge stemming from the same arrest was not also

eligible for expunction under a rticle 55.01(a)(2)(A)

. See id. The Court rejected the10 Department’s argument in its rejection of an arrest

- based construction of a rticle

55.01(a)(2) (A)

. Id. at *9.

We turn now to the first challenged arrest L.M.L. sought expunction for : the

October 5, 2012 arrest for possession of a controlled substance in penalty group 3 in an

amount less than twenty

- eight grams, a Class A misdemeanor. L.M.L. pleaded guilty to

and was placed on deferred adjudication for an offense arising out of the same

transaction : possession of marijuana

, a Class B misdemeanor

. L.M.L. ’s marijuana charge

disposition , however, does not preclude her from expunction eligibility on the controlled

substance charge

— provided that L.M.L. presented evidence that the controlled

substance charge independently satisfies the statutory conditions for expunction

. See id.

T he record indicates here that t he possession of a controlled substance charge was

dismissed after L.M.L. “ presented proof of a valid prescription .” See T EX

. C ODE C RIM

.

P ROC

. A NN

. art. 55.01(a)(2)(A ) (ii)(d) (providing for expunction , in part, where there is

“ reason indicating absence of probable cause at the time of the dismissal to believe the

person committed the offense ” ) ; s ee also T EX

. H EALTH & S AFETY C ODE A NN

. § 481.117

(“[A] person commits an offense [of possession of a controlled substance in penalty group

3] if the person knowingly or intentionally possesses a controlled substance listed in

Penalty Group 3, unless the person obtains the substance directly from or under a va lid

prescription

. . . .”) (emphasis added)

.

Additionally, p rior to granting L.M.L.’s request for expunction on this charge, t he

trial court found that L.M.L. had been “ wrongfully arrested ” for possession of a controlled

substance . In doing so, the trial court implicitly conclud ed , for purposes of a rticle

55.01(a)(2)(A)(ii)(d), that there had been a lack of probable cause to support the11 information because L.M.L. held a valid prescription for the controlled substance

. See

Harris Cnty. Dist. Att ’ ys Office v. J.T.S ., 807 S.W.2d 572, 574 (Tex. 1991) (“The legislature

intended section 55.01 to permit the expunction of records of wrongful arrests.”) ; see also

,

e.g.

, In re E.R.W. , 281 S.W.3d 572, 575 (Tex. App.

— El Paso 2008, pet . denied)

(concluding that the petitioner was entitled to an expunction of a murder charge where

the State ’s attorney testified that “probable cause no longer existed ” to proceed with the

charge)

. We decline the Department’s invitation to disassociate the trial court’s “wrongful[]

arrest[]” finding with the requirements of a rticle 55.01(a)(2)(A) when the former squarely

falls with in the intended purpose of the statute. See J.T.S ., 807 S.W.2d at 574; Ex parte

J.A.B. , 592 S.W.3d 165, 168 (Tex . App.

— San Antonio 2019, no pet.)

. L.M.L. has

therefore satisf ied the requirements of a rticle 55.01(a)(2) (A) for her October 5, 2012 arrest

for possession of a controlled substance in penalty group 3 in an amount less than twenty

eight grams and is entitled to expunction

.

For reasons discussed supra

, L.M.L. is similarly entitled to expunction for the

remaining arrests :

• With respect to the February 8, 2013 episode, L.M.L. sought to

expunge her arrest for possession of a controlled substance, a Class

A misdemeanor. L.M.L. pleaded guilty and was placed on deferred

adjudication for two offenses arising out of the arrest: possession of

a control led substance, a third

- degree felony, and possession of

marijuana, a Class B misdemeanor. C ourt documents indicated

L.M.L. successfully completed deferred adjudication , and the

misdemeanor possession of a controlled substance offense she

seeks to be expung ed was dismissed after L.M.L. provided proof of

a valid prescription. The trial court later determined that L.M.L. was

“wrongfully arrested” for the misdemeanor possession of a controlled

substance offense.

• As related to the March 23, 2015 episode, L.M.L. sought to expunge

her arrests for the misdemeanor offenses of possession of a

controlled substance (count one), and possession of a dangerous12 drug (counts two and three). L.M.L. pleaded guilty and was placed

on deferred adjudication for unlawful carrying of a weapon (count

four). However, count one, two, and three, were dismissed after

L.M.L. provided proof of valid prescriptions , and the trial court found

that L.M.L. was “wrongfully arrested” for these three offenses.

• A s to the March 29

, 2015 episode

, L.M.L. sought to expunge her

arrests for possession of a controlled substance (count three) and

possession of a dangerous drug (counts four, five, and six). L.M.L.

pleaded guilty and was placed on deferred adjudication for the

misdemeanor offenses of possession of a prohibited weapon (count

one) and possession of marijuana (count two ). Counts three, four,

five, and six were dismissed following proof of valid prescriptions,

and the trial court found that L.M.L. was “wrongfully ar rested” for

these three offenses.

L.M.L. p roduce d evidence of expunction eligibility as required under a rticle 55.01.

See T EX

. C ODE C RIM

. P ROC

. A NN

. art. 55.01. Thus, t he evidence is legally sufficient to

support the trial court ’ s order granting the challenged expunction of L.M.L. ’ s arrests on

October 5, 2012, February 8, 2013, March 23, 2015, and March 29, 2015

. See Ex parte

R.P.G.P.

, 2021 WL 1933952, at *6

– 9 ; Ex parte E.H.

, 602 S.W.3d at 489. Accordingly, w e

overrule the Department ’ s sole issue.

III. C ONCLUSION

We affirm the trial court’s order of expunction.

CLARISSA SILVA

Justice

Delivered and filed on the

10th day of June

, 202 1

.