Fourth Court of Appeals

San Antonio, Texas

DISSENTING OPINION

No. 04-18-00539-CV

EX PARTE ROBERTO PASQUALE-GUALTIERI PETITTO

From the 216th Judicial District Court, Kerr County, Texas

Trial Court No. 17655A

Honorable N. Keith Williams, Judge Presiding

DISSENTING OPINION ON MOTION FOR REHEARING

Opinion by: Patricia O. Alvarez, Justice

Dissenting Opinion by: Liza A. Rodriguez, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Patricia O. Alvarez, Justice

Liza A. Rodriguez, Justice

Delivered and Filed: July 31, 2019

The dissenting opinion issued on June 5, 2019 is withdrawn and this opinion is substituted.

This appeal raises important issues regarding what effect the opinion by the Texas Supreme 

Court in State v. T.S.N., 547 S.W.3d 617 (Tex. 2018), has on a defendant’s ability to expunge 

records related to only one offense within a multi-charge single arrest when the defendant 

successfully completed pretrial diversion for that offense. We must also consider, as an issue of 

first impression, whether the State, in opposing the petition for expunction, may use information 

relating to a non-expungeable offense that is subject to a nondisclosure order but arose from the 

same arrest. Because I believe the trial court erred in denying Roberto Pasquale-Gualtieri Petitto’s 

petition for expunction, I respectfully dissent.
Dissenting Opinion 04-18-00539-CV

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I. EXPUNCTION OF DWI OFFENSE UNDER ARTICLE 55.01(a)(2)(A)

Resolution of the first issue turns on whether, in view of the recent T.S.N. opinion, we

should modify our “arrest-based” interpretation of article 55.01—in particular, subsection (a)(2).

See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2). 

Fourth Court of Appeals’ Precedent Before State v. T.S.N.

As explained in Tex. Dep’t of Pub. Safety v. Ryerson, our precedent has clearly stated that 

article 55.01 is wholly “arrest-based”:

As this court has recently held, the expunction statute ‘does not address or make 

allowances for expunction of individual offenses stemming from an arrest.’ Ex 

parte K.R.K., 446 S.W.3d [540, 543-44 (Tex. App.—San Antonio 2014, no pet.)]

(quoting Tex. Dep’t of Pub. Safety v. Dicken, 415 S.W.3d 476, 480 (Tex. App.—

San Antonio 2013, no pet.)) . . . 

[The appellee/petitioner below] tries to distinguish some of these cases based on 

their facts and the reason the State elected to proceed on only one offense arising 

from an arrest. The facts of the cases, however, have no effect on the application of 

the expunction statute. It is a bright line rule. If a defendant is arrested and charged 

with two or more offenses arising from that arrest, the statute does not allow the 

records relating to any of those offenses to be expunged if the defendant was 

convicted or placed on court-ordered community supervision for any of the 

offenses.

Tex. Dep’t of Pub. Safety v. Ryerson, No. 04-16-00276-CV, 2016 WL 7445063, at *2-3 (Tex. 

App.—San Antonio Dec. 28, 2016, pet. denied) (mem. op.). In doing so, we have “strictly” 

construed “the statutory language” and concluded the 2011 amendment to article 55.01(a)(2), 

which changed “for any offense” to “for the offense,” did not expand the statute’s application to 

allow expunction of individual offense records within a single arrest. Tex. Dep’t of Pub. Safety v. 

Dicken, 415 S.W.3d 476, 481 (Tex. App.—San Antonio 2013, no pet.) (emphasis added). We have 

reasoned that

[i]f the Texas Legislature intended the expunction statute to be offense-based 

instead of arrest-based, it could have amended the expunction statute in response to 

the numerous court decisions holding the current statute is arrest-based. See Alex 
Dissenting Opinion 04-18-00539-CV

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Sheshunoff Mgmt. Servs., L.P. v. Johnson, 209 S.W.3d 644, 653 (Tex. 2006) (noting 

statutory amendments by Legislature were in response to court decisions); Tex. 

Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 

188-89 (Tex. 2004) (noting Legislature amended statute in response to intermediate 

appellate court decision).

Ryerson, 2016 WL 7445063, at *3. Thus, under our existing precedent, we have consistently held 

that the expunction statute is arrest-based and not offense-based.

Impact of the Recent Opinion by Texas Supreme Court in State v. T.S.N.

On May 11, 2018, the supreme court issued its opinion in State v. T.S.N., 547 S.W.3d 617 

(Tex. 2018). Instead of applying an arrest-based interpretation to subsection (a)(1), it applied an 

“offense-based” analysis to the facts presented. See id. at 624. In 2013, while T.S.N. was under 

arrest for the felony offense of aggravated assault with a deadly weapon, the officer also executed 

a 2010 warrant for misdemeanor theft by check. Id. at 618. These two separate charges were filed 

in different courts with different cause numbers. Id. T.S.N. pled guilty to the theft charge. Id. With 

respect to the assault charge, she was later acquitted by a jury. Id. She then filed a petition for 

expunction pursuant to subsection (a)(1) and sought expungement of the records and files relating 

to the assault charge. Id. The State opposed her petition, arguing that “she was not entitled to 

expunction because she was convicted of the theft charge for which she was simultaneously 

arrested.” Id. at 619. According to the State, “article 55.01 entitles an individual to expunction of 

arrest records only if the results of the prosecutions as to all of the charges underlying the arrest 

meet the statutory requirements for expunction.” Id. (emphasis in original).

The supreme court explained that “[w]here an arrest is made pursuant to a charge for a 

single offense and the person is acquitted or convicted and then pardoned pursuant to article 

55.01(a)(1)(B), then article 55.01(a)(1) entitles the person to expunction of all records and files 

relating to the arrest.” Id. at 621. “This is because records and files relating to ‘the offense’
Dissenting Opinion 04-18-00539-CV

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encompass the whole of the records and files relating to ‘the arrest.’” Id. (quoting TEX.CODE CRIM.

PROC. ANN. art. 55.01(a)(1)) (emphasis in original). And, where a defendant is arrested “pursuant 

to a charge or charges for multiple related offenses as part of a criminal episode,” article 

55.01(a)(1) “just as clearly does not entitle the person to expunction of any files and records 

relating to the episode if the person either is convicted of one of the offenses or charges for one of 

the offenses remain pending.” Id. (emphasis in original). However, the court explained the facts 

presented were distinguishable from either scenario because “a single arrest occurred for multiple 

unrelated offenses.” Id.

The supreme court noted that neither it nor any court of appeals had “specifically addressed 

whether article 55.01(a)(1) is arrest-based, [although] several courts of appeals have interpreted 

article 55.01(a)(2) as being arrest-based.” Id. at 622. Because the trial court’s granting of the 

petition in the underlying case “hinged on a question of law requiring the interpretation of article 

55.01,” the supreme court explained that the ruling was “subject to de novo review.” Id. at 620.

In interpreting article 55.01, the supreme court stated for the first time that “[a]rticle 55.01 

is neither entirely arrest-based nor offense-based.” Id. at 623 (emphasis added). The court stressed 

that “[d]ifferent parts of the article, including the expunction requirements, address different 

factual situations,” noting that subsection (a)(1) addresses acquittals and pardons while subsection 

(a)(2) addresses dismissals and plea bargains. Id. And, with respect to subsection (a)(1), which 

relates to the right to expunge offenses for which one has been acquitted or pardoned, the court 

explained subsection (c) provides “clear instructions . . . as to multiple offense arrests.” Id. As the

court noted, article 55.01(c) creates an exception to the right to expunction under subsection 

(a)(1)(A) for an acquitted offense where the other offense(s) in the same criminal episode resulted 

in conviction or remained subject to prosecution. See TEX. CODE CRIM. PROC. ANN. art. 55.01(c). 
Dissenting Opinion 04-18-00539-CV

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The supreme court reasoned that “an arrest-based approach, as the State urges, [would render] the 

multiple offense, criminal episode provision in subsection (c) superfluous,” which is “an improper 

manner of interpreting statutory language.” T.S.N., 547 S.W.3d at 622; see also Spradlin v. Jim 

Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000) (requiring courts, in interpreting statutory 

language, to presume an entire statute to be effective and to not interpret statutory language in a 

manner that would render words useless or a nullity). According to the court, “[i]f the Legislature

[had] intended that all the offenses underlying a single arrest must meet the requirements for 

expunction under article 55.01(a)(1)(A) in order for expunction to be permitted, then the exception 

under subsection (c) would be unnecessary.” T.S.N., 547 S.W.3d at 622.

Under the facts presented in T.S.N., subsection (c) did not bar the right to expunction 

because the two offenses “did not arise out of the same criminal episode,” i.e., the offenses were 

“unrelated.” Id. at 621. The supreme court concluded that pursuant to article 55.01(a)(1)(A), T.S.N.

was entitled to expunction of all records and files related to her aggravated assault charge for which 

she was tried and acquitted—that is, she was entitled to a “partial expunction” of the single arrest. 

Id. at 623-24. According to the court, a “partial expunction” of the arrest was permitted under 

subsection (a)(1), notwithstanding the practical difficulties cited by the Department of Public 

Safety in its amicus brief (i.e., expunging records for one offense, but not all offenses, within an 

arrest). Id. at 624.

In so holding, the supreme court expressly limited its holding to subsection (a)(1) of article 

55.01, explaining it was not addressing subsection (a)(2). Id. at 623. While the supreme court 

acknowledged some intermediate courts of appeals had interpreted subsection (a)(2) as being 

“arrest-based,” the court expressed no opinion on subsection (a)(2) because it involves “different 

factual situations” not at issue. Id.
Dissenting Opinion 04-18-00539-CV

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Post-T.S.N. Opinions by Courts of Appeals

Since T.S.N. was issued, several intermediate courts of appeals have cited to it, although 

only one, the Fourteenth Court of Appeals, has analyzed it in any substance. The cases are 

summarized below.

Our court has issued six expunction opinions since TSN was issued; only two address the 

merits of the expunction matter at issue.1 See Ex parte Vela, No. 04-18-00464-CV, 2019 WL 

1459429 (Tex. App.—San Antonio Apr. 3, 2019, no pet.) (mem. op.); Ex parte Burton, No. 04-

17-00440-CV, 2018 WL 6624902 (Tex. App.—San Antonio Dec. 19, 2018, no pet.) (mem. op.). 

Only one cited T.S.N. for support. See Vela, 2019 WL 1459429, at *4. 

In Vela, the petitioner sought expunction pursuant to article 55.01(a)(2) of the records and 

files relating to a March 14, 1994 arrest for burglary of a building. Id. at *1. The Department of 

Public Safety argued he was not entitled to expunction because (1) the charges stemmed “from the 

same arrest as the criminal trespass for which he served deferred adjudication probation,” and (2) 

the charges had been dismissed only because the petitioner had pled guilty to the criminal trespass. 

Id. This court “look[ed] to the Texas Supreme Court’s analysis in T.S.N. for guidance” and quoted 

it for the proposition that “records and files relating to ‘the offense’ encompass the whole of the 

records and files relating to ‘the arrest.’” Id. at *4 (quoting T.S.N., 547 S.W.3d at 621) (emphasis 

in original). This court then reasoned the petitioner was not entitled to expunction under subsection 

(a)(2):

 1 Of the others, three are per curiam opinions, with two dismissing the appeals and one granting a joint motion to 

reverse. See Ex parte Perez, No. 04-18-00560-CV, 2018 WL 5018761 (Tex. App.—San Antonio Oct. 17, 2018, no 

pet.); Ex parte Rios, No. 04-17-00652-CV, 2018 WL 4903070 (Tex. App.—San Antonio Oct. 10, 2018, no pet.); Ex 

parte Garcia, No. 04-18-00218-CV, 2018 WL 6516096 (Tex. App.—San Antonio Dec. 12, 2018, no pet.). The fourth 

opinion, Ex parte J.A.G., No. 04-18-00218-CV, 2019 WL 2605627 (Tex. App.—San Antonio June 26, 2019, no pet. 

h.), held the petitioner was entitled to expunction of the offense of online solicitation of a minor because the statute 

was declared unconstitutional. 
Dissenting Opinion 04-18-00539-CV

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Here, Vela’s original charge was burglary of a building. As part of a plea 

agreement, he entered a plea of guilty to criminal trespass and the State dismissed 

the burglary of a building charge. Although the burglary of a building charge was 

dismissed, Vela served community supervision for the criminal trespass rendering 

Vela ineligible for expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(2); 

see also Tex. Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 681 (Tex. App.—Austin 

2010, no pet.) (concluding “court-ordered community supervision” includes 

deferred-adjudication community supervision). 

Id. Therefore, this court reasoned because Vela was “placed on community supervision for a 

lesser-included offense of burglary of a building, he [was] not entitled to expunction of the offense 

for which he was arrested.” Id. (emphasis added). Thus, Vela is factually distinguishable from the 

facts of Petitto’s case.

In Burton, 2018 WL 6624902, at *3-4, this court, without citing to T.S.N., followed its own 

precedent by stating that subsection (a)(2) is “arrest-based” and held the petitioner was not entitled 

to expunge a dismissed charge because he pled to another charge arising from the same criminal 

episode. 

Similarly, the Fifth Court of Appeals has issued several opinions re-affirming its prior 

precedent holding that subsection (a)(2) is “arrest-based” and thus a petitioner must show both 

charged offenses arising from the same arrest meet the expunction requirements. See Ex parte 

Fallis, No. 05-18-00348-CV, 2019 WL 350059, at *2 (Tex. App.—Dallas Jan. 29, 2019, no pet.)

(mem. op.) (not citing T.S.N.); Ex parte Bradshaw, No. 05-17-01424-CV, 2018 WL 6065099, at 

*3 (Tex. App.—Dallas Nov. 20, 2018, no pet.) (mem. op.) (citing T.S.N. only for general 

expunction law); In re Hoover, No. 05-16-01363-CV, 2018 WL 2926143, at *3 (Tex. App.—

Dallas June 7, 2018, pet. denied) (mem. op.) (same).

The Second and Twelfth Courts of Appeals have also issued opinions re-affirming their 

prior holdings that subsection (a)(2) is “arrest-based,” merely citing T.S.N. for general expunction 

law or noting that T.S.N.’s holding was expressly limited to subsection (a)(1). See, e.g., Ex parte 
Dissenting Opinion 04-18-00539-CV

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J.L., No. 02-17-00406-CV, 2018 WL 4183081, at *3 (Tex. App.—Fort Worth Aug. 31, 2018, no 

pet.) (mem. op.); Ex parte C.Z.D., No. 12-17-00373-CV, 2018 WL 3041145, at *2 (Tex. App.—

Tyler June 20, 2018, no pet.).

The Third, Seventh, and Thirteenth Courts of Appeals have issued expunction opinions

that are either factually different or do not address the substance of T.S.N. See Ex parte J.D.F., No. 

07-17-00202-CV, 2019 WL 1941341, at *2 (Tex. App.—Amarillo May 1, 2019, no pet.) (mem. 

op.) (holding petitioner did not present evidence he was entitled to expunction under article 

55.01(a)(2)); Ex parte D.S., No. 07-18-00399-CV, 2019 WL 2134030, at *2 (Tex. App.—Amarillo 

May 15, 2019, no pet.) (mem. op.) (recognizing the significance of T.S.N. but concluding the 

appeal did not depend on “the essence of T.S.N. or whether the trial court should have utilized an 

arrest-based analysis”); see also Tex. Dep’t of Pub. Safety v. J.W.M., No. 03-17-00792-CV, 2018 

WL 6519696, at *3 (Tex. App.—Austin Dec. 12, 2018, no pet.) (mem. op.) (holding defendant 

failed to prove his indictment was dismissed “as void” as he pled in expunction petition); Ex parte 

F.T.K., No. 13-16-00535-CV, 2018 WL 2440545, at *3-4 (Tex. App.—Corpus Christi–Edinburg 

May 31, 2018, no pet.) (mem. op.) (holding defendant was not entitled to expunction under 

subsection (a)(1) where he was acquitted of the greater aggravated assault offense but convicted 

of the lesser-included offense of simple assault; subsection (c) barred the expunction for the 

acquittal because the offenses were part of the same criminal episode).

The Fourteenth Court of Appeals is the only court to apply T.S.N. to subsection (a)(2) and 

hold that an expunction was allowed for an individual offense arising from a multi-charge arrest.

See Ex parte N.B.J., 552 S.W.3d 376 (Tex. App.—Houston [14th Dist.] 2018, no pet.). In a case 

factually similar to T.S.N., the Fourteenth Court of Appeals held that subsection (a)(2) of article 

55.01 authorizes parceling of individual offenses within a single arrest for expunction purposes. 
Dissenting Opinion 04-18-00539-CV

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Id. at 384. Specifically, the court applied subsection (a)(2)(B) in which future prosecution is barred 

by expiration of the limitations period. Id. (explaining that “it is undisputed that prosecution of 

N.B.J. for the subsequent charge is no longer possible”). The court “construe[d] the phrase ‘all 

records and files relating to the arrest’ as referring to the arrest records stemming from each 

individual offense or charge, at least when the charges are unrelated.” Id. Thus, the court 

“depart[ed] from [its] sister courts that have interpreted article 55.01(a)(2) as providing expunction 

only on an overall ‘arrest-based’ basis.” Id. Instead, according to the court, “the ‘statute provides 

that one arrest for multiple offenses equates to multiple arrests . . . each arrest tied to its own 

individual offense.’” Id. (quoting T.S.N., 547 S.W.3d at 621). 

In N.B.J., the Fourteenth Court of Appeals was clear that its analysis turned on the fact that 

the two charged offenses were unrelated, with the second occurring due to an outstanding arrest 

warrant as in T.S.N. See N.B.J., 552 S.W.3d at 384. Two months later, the court reinforced the 

importance of whether the offenses were related, stating that a petitioner was “disqualified for an 

expunction [under subsection (a)(2)(A)] because his conviction for aggravated robbery arose out 

of the same transaction as his arrest for capital murder.” Ex parte Brown, No. 14-17-00695-CV, 

2018 WL 3977174, at *2 (Tex. App.—Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.) 

(the aggravated robbery offense was a lesser-included offense of the capital murder). In footnote 

four, the court explained that “[b]ecause this case involves related offenses under subsection 

(a)(2)(A), [its] analysis is not affected by the Texas Supreme Court’s decision in T.S.N. or by our 

own court’s decision in N.B.J.,” both of which involved unrelated criminal conduct. Id. at *2 n.4.

Thus, while Brown dealt with the same subsection applicable in Petitto’s case, subsection 

(a)(2)(A), the factual situation is distinguishable from Petitto’s because the petitioner in Brown
Dissenting Opinion 04-18-00539-CV

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sought to expunge his arrest for capital murder even though he had been indicted for and convicted 

of the lesser-included offense of aggravated robbery, a felony. See id.

The Eighth Court of Appeals recently issued an opinion discussing T.S.N.’s holding that 

subsection (a)(1) permits a partial expunction on an acquitted charge and recognizing that there is 

a split among the courts of appeals on the issue of whether any part of subsection (a)(2) permits a 

charge-based approach. In re J.G., No. 08-16-00116-CV, 2019 WL 2521496, at *2 (Tex. App.—

El Paso June 19, 2019, no pet. h.) (internal citations omitted). After surveying the cases, including 

N.B.J., the court concluded it was not necessary for it to resolve “the ultimate question of whether 

Subsection (a)(2) is charge-based or arrest-based” because the facts of the case would require the 

same result under either approach. Id. at *3. The court held that because J.G. pled to a single lesserincluded offense arising from the same arrest and served a term of community supervision pursuant 

to the plea deal, he could not expunge the other two dismissed charges arising from the same arrest. 

Id. (stressing the charges were “related” and disposed of in the same plea deal).

Facts of Petitto’s Case

Petitto was stopped and arrested for DWI. A small quantity of marijuana was discovered 

in his vehicle during the search incident to his DWI arrest, leading to a charge for possession of 

marijuana as well. In both T.S.N. and N.B.J., the second charge arose from an earlier, outstanding 

warrant discovered during the arrest on the first offense. See T.S.N., 547 S.W.3d at 619; N.B.J., 

552 S.W.3d at 378. Here, Petitto was separately charged with two offenses that arose from the 

same arrest and the same transaction. See TEX. PENAL CODE ANN. § 3.01(1) (defining “criminal 

episode” in relevant part as “the commission of two or more offenses ... pursuant to the same 

transaction”). 
Dissenting Opinion 04-18-00539-CV

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The facts in Petitto’s case are summarized below:

• There was a single arrest for two separate offenses.

• With respect to the DWI charge, he completed pretrial diversion and was released.

• With respect to the charge for possession of marijuana, he pled nolo contendere; the trial 

court deferred a finding of guilt and placed him on deferred adjudication community 

supervision for nine months which he completed, after which the case was dismissed and 

non-disclosed. 

• Both offenses are Class B misdemeanors.

• It is undisputed that the charge for possession of marijuana is not subject to expunction

because Petitto completed a term of court-ordered community supervision.

• Petitto sought expunction of the DWI “offense” under article 55.01(a)(2)(A) because:

(i) He was released;

(ii) No final conviction on the DWI “charge” resulted, no charge is pending, and no 

future prosecution is possible; and 

(iii) No community supervision on the DWI “charge” was ordered by the court. 

• Further, under subsection (A)(ii)(b) of article 55.01(a)(2), an indictment or information 

charging him with a misdemeanor ... arising out of the same transaction for which he was 

arrested was presented after the arrest, but was dismissed because he completed a pretrial 

intervention program. 

In opposing the petition for expunction, the State argued that in order for Petitto to be 

entitled to an expunction of the “arrest,” “all charges arising from the arrest” must meet the 

requirements of article 55.01. (emphasis added). Relying on precedent from this court, as well as 

the Second and Third Courts of Appeals the State argued article 55.01 “does not address or make 

allowances for expunction of individual offenses stemming from an arrest.” 

The expunction hearing was held on June 28, 2018, shortly after the T.S.N. opinion was 

issued.2 At the hearing, Petitto testified and the order of dismissal on his DWI charge was admitted. 

Over Petitto’s objection, the State was allowed to use information about the possession of 

 2 On May 11, 2018, the same day T.S.N. was issued by the supreme court, Petitto filed an amended petition for 

expunction.
Dissenting Opinion 04-18-00539-CV

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marijuana charge arising from the same arrest, even though the possession charge was subject to 

an order of nondisclosure based on Petitto’s successful completion of the deferred adjudication

community supervision term. (See Part II of this opinion). The State argued that, based on 

precedent from this court and other intermediate appellate courts, both offenses arising from the 

single arrest had to meet the statutory requirements for an expunction, and the offenses could not 

be parceled out of the single arrest. That is, the State relied on an “arrest-based” interpretation of 

article 55.01 as a whole. The State argued Petitto was therefore not entitled to an expunction of 

the DWI because he could not prove there was “no court-ordered community supervision” for the 

possession offense. At the hearing, no party cited T.S.N. as relevant authority.

The trial court denied the petition for expunction. The trial court followed this court’s 

Ryerson opinion in applying an “arrest-based” interpretation of the statute and requiring that all 

offenses arising from a single multi-charge arrest meet the requirements for an expunction “of the 

arrest.”

Application of T.S.N. to the Facts of Petitto’s Case

Here, the issue before the panel involves the application of T.S.N. to our existing precedent 

stating that article 55.01, in its entirety, is arrest-based. This is an issue of first impression for this 

court. Specifically, the issue in Petitto’s case is whether T.S.N. changes this court’s prior 

interpretation of subsection (a)(2)(A) as arrest-based. The applicable principles from T.S.N.

pertaining to Petitto’s case are as follows:

(1) Article 55.01’s statutory scheme is neither fully “arrest-based” nor “offense-based;”

instead, it depends on the particular subsection and the factual situation; and 

(2) Article 55.01’s statutory scheme does permit a “partial expunction” of the records, i.e. 

divisibility of offenses within an arrest, in certain situations; in T.S.N., the defendant 

was entitled, pursuant to subsection (a)(1)(A)’s acquittal scenario, to a “partial 

expunction” of the records relating to the expungeable offense arising from a multicharge single arrest. 
Dissenting Opinion 04-18-00539-CV

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See T.S.N., 547 S.W.3d at 623-24. Thus, the supreme court in T.S.N. impliedly held the right to 

expunction under (a)(1)(A) is “offense-based,” and not arrest-based. As noted, subsection (a)(2) 

was not before the court and it did not address (a)(2).

Interpreting the statutory language of article 55.01(a)(2)(A) in light of T.S.N., we must 

begin with the plain meaning of the statutory language used in that subsection and interpret it “as 

a cohesive, contextual whole with the goal of effectuating the legislature’s intent.” T.S.N., 547 

S.W.3d at 620. We must also presume the legislature intended a “just and reasonable result.” Id.

Looking at article 55.01’s plain language, it could be argued that the legislature’s reference 

to “the charge” and “the offense” in subsection (a)(2) means that the entire subsection (a)(2) is 

offense-based. Subsection (a)(2) was amended in 2011 to provide that a person is entitled to 

expunge all records and files relating to the arrest if he was released and the charge did not result 

in a conviction and is no longer pending, and there was no court-ordered community supervision 

“for the offense.” See K.R.K., 446 S.W.3d at 542-43 (noting the former version stated “any

offense”) (emphasis added). This court, however, in K.R.K. rejected that argument and reaffirmed 

that all charges arising from the same arrest must meet the requirements for expunction, i.e., an 

“all or nothing” approach. Id. at 543-44. The majority of our sister courts of appeals have agreed, 

and even after the issuance of T.S.N., several continue to espouse the arrest-based interpretation of 

subsection (a)(2). As noted, only the Fourteenth Court of Appeals has applied an offense-based 

approach to (a)(2) after T.S.N., and that case was factually the same as T.S.N.

In light of T.S.N.’s guidance, along with legislative changes made in 2011, I believe the 

Fourteenth Court of Appeals was correct in applying an “offense-based” interpretation to 

subsection (a)(2). Thus, in my opinion, the plain statutory text of subsection (a)(2)(A) permits us 
Dissenting Opinion 04-18-00539-CV

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to view Petitto’s charges individually. With that foundation, I conclude that Petitto’s two offenses 

are divisible and Petitto was entitled to expunction of the DWI.

If the majority had held that Petitto’s DWI offense was independently expungeable, then it 

would not need to reach the issue concerning use of the nondisclosed-offense (i.e., the possession) 

at the expunction hearing; the fact that Petitto pled nolo contendere and received deferred

adjudication/community supervision on the possession offense would not be relevant to the 

expunction analysis. However, because the majority did not so hold, the use of the offense subject 

to the nondisclosure order must be addressed.

II. STATE’S USE OF POSSESSION OFFENSE SUBJECT TO NONDISCLOSURE ORDER

At Petitto’s expunction hearing, the trial court allowed the State, in opposing the petition 

for expunction on the DWI offense, to use the information about the possession charge for which 

Petitto received deferred adjudication community supervision. Following Petitto’s completion of 

the deferred adjudication community supervision, the possession case was dismissed and 

subsequently non-disclosed. The trial court ruled the nondisclosure order on the possession offense 

was not breached by the State’s disclosure of the information during the expunction hearing 

because a nondisclosure order is directed at prohibiting agencies from disclosing the information 

to the public. The trial court stated that because Petitto brought his expunction petition in the 

district court, which is a public forum, the opposing party was entitled to use the nondisclosure 

information to contest the expunction.

On appeal, Petitto argues that, based on the plain statutory language, the trial court erred 

by allowing the State to use the information subject to the nondisclosure order. The State replies 

that section 411.0765 of the Government Code, in relevant part, permits a “criminal justice 

agency” to disclose criminal history record information subject to an order of nondisclosure to 
Dissenting Opinion 04-18-00539-CV

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“other criminal justice agencies” or “for criminal justice . . . purposes.” TEX. GOV’T CODE ANN.

§ 411.0765(a)(1), (2). The Government Code defines a “criminal justice agency” as a “federal or 

state agency that is engaged in the administration of criminal justice under a statute or executive 

order and that allocates a substantial portion of its annual budget to the administration of criminal 

justice.” TEX. GOV’T CODE ANN. §§ 411.071, 411.082(3)(A). According to the State, its use of the 

information subject to the nondisclosure order was proper because (1) it was disclosing the 

information to a criminal justice agency, i.e. the district court; and (2) it was disclosing the 

information for criminal justice purposes. The majority opinion merely states that it disagrees with 

these two arguments brought by the State but does not go further by providing reasoning for its 

disagreement.

The State first argues that the Department of Public Safety and the Kerr County Attorney

(who represented the State at the hearing) fall within the definition of “criminal justice agencies” 

and their disclosure of the information subject to the nondisclosure order was authorized because 

the disclosure was made to another “criminal justice agency”–the district court. See id.

§ 411.0765(a)(1). In other words, the State argues the district court is also a “criminal justice 

agency.” The State, however, cites no authority for this proposition. And, its argument is 

undermined by the next part of the statute, subsection (b), which states a criminal justice agency 

may disclose such information “to the following noncriminal justice agencies or entities only: . . . 

(7) a district court regarding a petition for name change under Subchapter B, Chapter 45, Family 

Code.” See id. § 411.0765(b)(7) (emphasis added). Thus, subsection (b) explicitly refers to “a 

district court” as a “noncriminal justice agencies or entities.” Id. (emphasis added). Further, 

subsection (b) expressly permits disclosure of criminal history record information to a district court 

only with regard to “a petition for name change” under the Family Code. Id.
Dissenting Opinion 04-18-00539-CV

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Further, looking at the statutory chapter as a whole, section 411.076, which immediately 

precedes 411.0765, specifically addresses a court’s disclosure of information subject to a 

nondisclosure order. See TEX. GOV’T CODE ANN. § 411.076. Section 411.076 prohibits “[a] court 

[from] disclos[ing] to the public any information contained in the court records that is the subject 

of an order of nondisclosure of criminal history record information issued under this subchapter.” 

Id. Section 411.076 then expressly allows “the court” to disclose such information to “criminal 

justice agencies for criminal justice or regulatory licensing purposes” or to “an agency or entity 

listed in Section 411.0765.” Id. That the legislature provided for this separate section addressing 

when a court may disclose such information further supports the conclusion that the legislature did 

not intend a court to be considered a “criminal justice agency” under section 411.0765(a)(1).

In its second argument, the State asserts that, as a criminal justice agency, it was authorized 

to reveal the information subject to nondisclosure to the district court because it was done for 

“criminal justice purposes.” See id. § 411.0765(a)(2). “Criminal justice purpose” is defined in 

relevant part as “an activity that is included in the administration of criminal justice.” Id.

§§ 411.071, 411.082(4)(A). “Administration of criminal justice” “has the meaning assigned by 

article 66.001” of the Texas Code of Criminal Procedure. Id. § 411.082(1). Article 66.001 in turn 

defines “administration of criminal justice” as “the detection, apprehension, detention, pretrial 

release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of 

an offender.” TEX. CODE CRIM. PROC. ANN. art. 66.001(1).3 This term “includes criminal 

identification activities and the collection, storage, and dissemination of criminal history record 

 3 Article 66.001 became effective on January 1, 2019. See Acts 2017, 85th Leg., ch. 1058 (H.B. 2931), § 1.03, eff. 

Jan. 1, 2019. However, the former article, article 60.01(1) also defined “administration of criminal justice” as “the 

performance of any of the following activities: detection, apprehension, detention, pretrial release, post-trial release, 

prosecution, adjudication, correctional supervision, or rehabilitation of an offender.” Acts 1993, 73d Leg., ch. 790, 

§ 37, repealed by Acts 2017, 85th Leg., Repealed by Acts 2017, 85th Leg., ch. 1058 (H.B. 2931), § 5.01(3), eff. Jan. 

1, 2019. Thus, although article 60.01 was repealed, the definition of “administration of criminal justice” remained the 

same.
Dissenting Opinion 04-18-00539-CV

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information.” Id. (emphasis added). Thus, the State’s argument boils down to an assertion that its 

disclosure of the information to the district court during the expunction hearing was authorized as 

an activity included within the administration of criminal justice because it involved the 

“collection, storage, and dissemination of criminal history record information.” According to the 

State, “[e]very agency involved in an expunction hearing is engaged in the administration of 

criminal justice by virtue of the fact that they collect, store or disseminate information about 

arrests, criminal charges, and dispositions,” and “[i]f they were not . . . the petitioner would have 

no reason to serve them with an expunction petition.” Finally, the State asserts that the ability to 

obtain a nondisclosure order for an offense does not equate to the ability to obtain an expunction. 

It relies on Ryerson, in which this court stated that an important difference between nondisclosure 

orders and expunction orders is that nondisclosure orders allow information regarding the offense 

to be disclosed to various agencies and entities, while expunction orders prohibit any use of the 

expunged records. See Ryerson, 2016 WL 7445063, at *3 (concluding the legislature “was not 

absurd in establishing different statutory requirements for each type of order”).

The ultimate question is whether an expunction hearing in district court is part of the 

“administration of criminal justice” within the meaning of the nondisclosure statute; in other 

words, whether the legislature intended for information subject to a nondisclosure order to be 

disclosable by a “criminal justice agency,” i.e., here the Kerr County Attorney, in a contested civil 

expunction proceeding. This appears to be an issue of first impression. 

Applying statutory interpretation principles to the plain language of section 

411.0765(a)(2), the inclusion of “criminal justice” purposes in the same phrase as “regulatory 

licensing” purposes suggests an administrative function for the disclosure of the information. In 

addition, disclosure of criminal history information through the permitted activities of “collection, 
Dissenting Opinion 04-18-00539-CV

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storage, and dissemination” within the “administration of criminal justice” also suggests an 

administrative purpose for the disclosure, rather than the use of the information in an adversarial 

open court proceeding. In addition, the legislature’s inclusion of only one limited situation for 

disclosure of such information to a district court in a civil matter, i.e., name-change purposes under 

the Family Code, supports the conclusion that if the legislature had wanted to allow disclosure of 

the information in another type of civil matter like an expunction hearing, it would have stated an 

express exception for that use.4

Reading the plain language of these relevant sections within the context of the entire 

statutory scheme for nondisclosure orders, and giving effect to the legislature’s limited and very 

specific exception for disclosure to district courts, my view is that the intended purpose behind 

subsection (a)(1) and (2) is to allow disclosure only to “criminal justice agencies” for 

 4 An Attorney General Opinion issued in 2017 sheds some light on the issue. See TEX. ATT’Y GEN. OP. NO. KP-0134 

(2017). The opinion addresses a question concerning unrestricted access by employees of the Williamson district and 

county clerks’ offices to information subject to nondisclosure orders. It discusses how the administrative process 

works after a nondisclosure order is issued, stating that: (i) first, the clerk of the court sends all relevant information 

contained in the nondisclosure order to DPS’s Crime Records Service and the court clerk then seals any court records 

containing the information; (ii) second, DPS must seal the information it received and then send it, or a copy of the 

nondisclosure order, to all “law enforcement agencies, jails or other detention facilities, magistrates, courts, 

prosecuting attorneys, correctional facilities, central state depositories of criminal records, and other officials or 

agencies or other entities of this state or of any political subdivision of this state;” and (iii) third, those individuals and 

entities must seal any “criminal history record information” subject to the order that is maintained by them. Id. at *1 

(citing TEX. GOV’T CODE ANN. § 411.075(b)(1), (d)). Then, a court or a “criminal justice agency” may disclose the 

sealed information subject to the nondisclosure order only as provided by statute. Id. In describing the limited instances 

when the statute permits disclosure of the sealed information, the opinion states disclosure is allowed only “to criminal 

justice agencies for criminal justice or regulatory licensing purposes.” Id. (also including the exceptions for a 

subsection (b) entity or the subject of the order). That statement tracks the language of section 411.076(a)(1) pertaining 

to disclosures by a court. See TEX. GOV’T CODE ANN. § 411.076(a)(1) (disclosure by court is permitted only to 

“criminal justice agencies for criminal justice or regulatory licensing purposes”). The opinion, however, applies that 

instance of when disclosure is allowed to both a court and a “criminal justice agency.” TEX. ATT’Y GEN. OP. NO. KP0134, at *2. It does not acknowledge that the statute governing disclosure by a criminal justice agency breaks that 

phrase into two subparts. See TEX. GOV’T CODE ANN. § 411.0765(a)(1), (2) (disclosure by criminal justice agency is 

permitted only “(1) to other criminal justice agencies; (2) for criminal justice or regulatory licensing purposes; (3) ... 

; (4) ... ; or (5) ....”). Finally, the opinion notes that of the thirty-one “noncriminal justice agencies” listed for 

disclosure, the statute lists a district court only for name-change purposes and lists a county clerk’s office only for 

appointment of a guardian. TEX. ATT’Y GEN. OP. NO. KP-0134, at *2 (noting the two “limited civil purposes” for 

disclosure under section 411.0765(b)(7), (25)). The opinion concludes that “as a general class” employees of a district 

or county clerk’s office are not included within the exceptions for disclosure and advises that the county clerk should 

restrict access to only the employees who perform duties allowed under the statute.
Dissenting Opinion 04-18-00539-CV

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administrative purposes such as “collection, storage, and dissemination” of such information, i.e., 

“for criminal justice purposes,” and that does not include a district court.

CONCLUSION

Based on the foregoing analysis, I would hold that Petitto’s DWI offense is independently 

expungeable, separate and apart from the possession offense, and that the trial court erred in 

denying expunction based on the disposition of the possession offense that was subject to a 

nondisclosure order. Accordingly, I would reverse the trial court’s order and render an order 

granting an expunction on Petitto’s DWI offense.

Liza A. Rodriguez, Justice