Opinion filed December 16, 2021

In The

Eleventh Court of Appeals __________

No. 11-20-00048-CV

__________

IN THE MATTER OF THE EXPUNCTION OF A.L.

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CV56100

M E M O R A N D U M O P I N I O N

Appellant, A.L., sought an expunction of all criminal records and files related 

to her arrest for the offense of aggravated assault with a deadly weapon, family 

violence. In two issues, Appellant asserts that the trial court erred when it denied 

her petition for expunction. We reverse.

I. Factual Background

In 2018, the State charged Appellant with the felony offense of aggravated 

assault with a deadly weapon, family violence. In accordance with the terms of her 

negotiated plea bargain agreement with the State, Appellant was assigned to a 
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pretrial diversion (PTD) program for a period of nine months. Her felony charge 

was later dismissed after Appellant successfully completed the PTD program.

Appellant subsequently filed her petition for expunction. At her expunction 

hearing, Appellant testified that she had completed and satisfied all requirements of 

the PTD program, that the felony charge for which she was arrested did not result in 

a final conviction, and that there was no case pending against her. During its crossexamination, the State attempted to question Appellant about a condition of the plea 

bargain agreement, in which Appellant had allegedly waived her right to seek an 

expunction of the felony charge and all matters related to it. Her trial counsel 

objected to the State’s inquiry on the grounds that the State had failed to plead and 

allege the affirmative defense of waiver prior to the hearing. Nevertheless, the trial 

court overruled Appellant’s objection, admitted the State’s proffered evidence, and 

ultimately denied her petition for expunction.

Appellant raises two issues on appeal; because the issues are intertwined, we 

will consider them together. Essentially, Appellant contends that the trial court 

abused its discretion when it denied her petition for expunction because (1) she had 

satisfied all of the statutory requirements to obtain an expunction of the charged 

offense and all related matters and (2) it based its decision on the evidence presented 

by the State that pertained only to the State’s unpleaded affirmative defense of 

waiver.

II. Standards of Review

We review a trial court’s ruling on a petition for expunction under an abuse of 

discretion standard. Ex parte R.P.G.P., 623 S.W.3d 313, 317 (Tex. 2021). However, 

to the extent that the trial court’s ruling depends on a question of law, we review the 

ruling de novo. Ex parte E.H., 602 S.W.3d 486, 489 (Tex. 2020) (“[A] trial court 
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has no ‘discretion’ in determining what the law is or applying the law to the facts.” 

(quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)). 

Further, we review a trial court’s decision to admit or exclude evidence for 

abuse of discretion. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220

(Tex. 2001).

III. Analysis

Article 55.01 of the Code of Criminal Procedure governs an individual’s right 

to an expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.01 (West Supp. 2021). 

In relevant part, a person who has been arrested for the commission of a felony 

offense is entitled to have all records and files relating to the arrest expunged if:

(1) the person has been released; (2) the charge, if any, has not resulted in a final 

conviction and is no longer pending; (3) there was no court-ordered community 

supervision for the offense; (4) an indictment charging the person with the 

commission of any felony offense arising out of the same transaction for which the 

person was arrested, if presented at any time following the arrest, was dismissed or 

quashed; and (5) the trial court finds that the indictment was dismissed or 

quashed because the person completed a pretrial intervention program. Id. 

§ 55.01(a)(2)(A)(ii)(c). Here, there is no dispute that Appellant satisfied all of the 

statutory requirements to obtain an expunction of the records, files, and other 

relevant information that was related to her arrest for the charged offense. 

The record before us shows that (1) Appellant had been released from the 

charged offense; (2) the charged offense did not result in a final conviction and was 

no longer pending; (3) Appellant had not been placed on community supervision for 

the charged offense; (4) the indictment for the charged offense had been dismissed; 

and (5) the charged offense was dismissed because the trial court found that 
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Appellant had successfully completed her PTD program. As we have said, the State 

does not dispute that Appellant proved her entitlement to an expunction under 

Article 55.01. Rather, the State maintains that the trial court properly admitted and 

considered the evidence presented by the State concerning Appellant’s alleged 

waiver of her right to seek an expunction. We disagree.

Although the expunction statute is codified in the code of criminal procedure, 

one’s entitlement to an expunction is clearly a civil remedy. Ex parte R.P.G.P., 623 

S.W.3d at 316 (citing Ex parte E.H., 602 S.W.3d at 489). Therefore, because an 

expunction proceeding is civil in nature, the rules of civil procedure apply to and 

govern expunction hearings. Carson v. State, 65 S.W.3d 774, 784 (Tex. App.—Fort 

Worth 2001, no pet.). 

Under Rule 94, waiver is an affirmative defense that must be specifically 

pleaded. TEX. R. CIV. P. 94. Thus, if a party fails to plead and allege the affirmative 

defense of waiver, that party is precluded from relying on or asserting the waiver 

defense at trial. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 

(Tex. 1992); Security Self Storage LLC v. Pauling, No. 11-09-00103-CV, 2010 WL 

3170670, at *2 (Tex. App.—Eastland Aug. 12, 2010, no pet.) (mem. op.) (citing 

Bracton Corp. v. Evans Constr. Co., 784 S.W.2d 708, 710 (Tex. App.—Houston 

[14th Dist.] 1990, no pet.)). In this case, the State did not file any pleadings in 

response to Appellant’s petition for expunction. As such, the State failed to properly 

raise the affirmative defense of waiver prior to the commencement of the expunction 

hearing. Despite its failure to plead or assert the affirmative defense of waiver in 

advance of the hearing, as a defense to Appellant’s expunction request the State 

nonetheless presented evidence, which the trial court admitted, that Appellant had 

allegedly waived her entitlement to an expunction. In fact, over the objections
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asserted by Appellant’s trial counsel, the trial court permitted the State to question 

Appellant about the substance of the plea agreement in which she purportedly 

waived her right to seek and obtain an expunction of the charged offense and other 

related matters. 

In light of the State’s failure to comply with the pleading requirements of 

Rule 94, it was prohibited from relying on or asserting a waiver defense at trial. 

Therefore, the trial court should have neither admitted nor considered the evidence 

presented by the State in support of this defense. Because it did in both respects, we 

hold that the trial court abused its discretion when it (1) permitted the State to 

develop an unpleaded and unasserted waiver defense to Appellant’s expunction 

request and (2) admitted the evidence offered by the State on that issue. 

Moreover, in its findings of fact and conclusions of law, the trial court recited 

and referred to language from the parties’ plea agreement and found that Appellant 

had waived her right to an expunction. However, unlike the waiver evidence 

discussed above, the plea agreement was neither offered by the State nor admitted 

into evidence by the trial court. Therefore, because the plea agreement is not a part 

of or included in the appellate record, it is not before us and cannot support the trial 

court’s finding.

The State concedes that the trial court’s decision to admit the evidence that 

Appellant had allegedly waived her right to an expunction contributed to the trial 

court’s judgment. We agree that the trial court’s erroneous admission of this 

evidence probably caused the rendition of an improper judgment. See TEX. R.

APP. P. 44.1(a)(1). This is particularly true when, as in this case, the erroneously 

admitted evidence was pertinent to a crucial issue in the case. See Reliance Steel & 

Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008); Nissan Motor Co. v. 
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Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). Here, Appellant conclusively proved 

her entitlement to an expunction of the charged offense and all records, filings, and 

other information related to it. The record before us does not contain any admissible 

evidence to the contrary. Consequently, we hold that the trial court abused its 

discretion when it denied Appellant’s petition for expunction. 

IV. This Court’s Ruling

We sustain Appellant’s first and second issues on appeal. Accordingly, we 

reverse the order of the trial court and remand this cause to the trial court with 

instructions to grant Appellant’s petition for expunction.

W. STACY TROTTER

JUSTICE

December 16, 2021

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.