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In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-14-00042-CV 

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TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant

V.

K.J.H., Appellee

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On Appeal from the 410th District Court

Montgomery County, Texas

Trial Cause No. 13-06-06780-CV

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MEMORANDUM OPINION

In a single issue, appellant Texas Department of Public Safety (“DPS”)

challenges the trial court’s order granting K.J.H.’s request for expunction. We 

affirm the trial court’s judgment in part and reverse and render in part.

K.J.H. filed a petition for expunction of all criminal records arising from the 

following arrests: (1) April 20, 2007, for possession of a controlled substance, 

possession of marijuana, public intoxication, and possession of a dangerous drug; 

(2) February 17, 2010, for driving while intoxicated; and (3) August 10, 2010, for 
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misdemeanor driving while intoxicated. According to K.J.H., the possession 

charges were not filed, the public intoxication charge was dismissed, the August 10 

DWI was dismissed, and the February 17 arrest “never resulted in a final 

conviction.” DPS filed an answer, in which it contended that K.J.H. was ineligible 

for expunction of records pertaining to the August 10 arrest “because individual 

charges cannot be expunged when the arrest resulted in a conviction for another 

offense.” Specifically, DPS argued that the August 10 arrest led to K.J.H. pleading 

guilty to obstructing a highway or passageway.

On October 17, 2013, the trial judge signed an order denying K.J.H.’s 

petition for expunction in its entirety. K.J.H. then filed a motion for new trial, in 

which she contended the trial court abused its discretion by entering an order “that 

is contrary to controlling case law.” In addition, K.J.H. argued that no entity had 

objected to expunction of all records stemming from the April 20 arrest. The 

Montgomery County District Attorney’s office (“the DA’s office”) filed a 

response, in which it agreed that K.J.H. was entitled to expunction of all records of 

the April 20, 2007, arrest, and should be “granted a partial expunction of records of 

her arrest on August 10, 2010.” The DA’s office contended that the August 10 

arrest resulted in prosecution of K.J.H. for driving while intoxicated, but that 

charge was dismissed and K.J.H. was subsequently charged with and pleaded 
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guilty to the misdemeanor offense of obstructing a highway. According to the 

DA’s office, K.J.H. “should be permitted to expunge the records of her DWI 

prosecution,” but not the obstructing-a-highway case. The DA’s office 

acknowledged the existence of a split of authority among the Courts of Appeals 

concerning whether partial expunctions were permissible under such 

circumstances.

The trial judge granted the motion for new trial and scheduled a hearing. At 

the hearing, K.J.H. testified that as a result of the August 2010 arrest, a jury was 

empaneled on the DWI charge, but the DA’s office ultimately agreed to dismiss 

that charge and instead to charge K.J.H. with obstructing a highway or 

passageway.

1 K.J.H. testified that she then pleaded guilty to obstructing a highway, 

and the DWI charge was dismissed. K.J.H. explained that she requested expunction 

of the records pertaining to all four cases that arose from the April 2007 arrest, as 

well as the driving while intoxicated case from August 2010, but not the 

obstructing-a-highway case. DPS’s counsel argued that the records pertaining to 

the August 2010 arrest for DWI should not be expunged because K.J.H. pleaded 

guilty to obstructing a highway and was convicted of that charge. After the

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During K.J.H.’s testimony, counsel and the trial court clarified that the 

August 2010 arrest was by warrant and was for the same DWI offense for which 

K.J.H. had previously been arrested in February 2010. 
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hearing, the trial judge signed an order expunging the records of each arrest except 

those pertaining to the conviction for obstructing a highway.

In its sole appellate issue, DPS argues that the trial court erred by signing an 

order expunging the records of K.J.H.’s DWI arrest that resulted in a subsequent 

conviction for obstructing a highway. K.J.H. has not alleged, and the record does 

not establish, that she was acquitted or pardoned for the misdemeanor DWI charge, 

as required for expunction under article 55.01(a)(1)(A) or (b)(1). See Tex. Code 

Crim. Proc. Ann. art. 55.01(a)(1)(A), (B)(2)(A)(i)(b) (West Supp. 2013) (A person 

who has been arrested is entitled to expunction of all records pertaining to the 

arrest if the person is tried and either acquitted or convicted but subsequently 

pardoned, or if at least one year has elapsed from the date of the arrest for a Class 

B or A misdemeanor and the person was not charged with a felony arising from the 

same transaction.); see also Ringo v. State, No. 09-13-00456-CV, 2014 WL 

1285140, at *1 (Tex. App.—Beaumont Mar. 27, 2014, no pet.) (mem. op.).

K.J.H.’s testimony demonstrated that the indictment for misdemeanor DWI, 

for which she was arrested on August 10, 2010, was dismissed because K.J.H. 

pleaded guilty to obstructing a highway and was sentenced in that case. K.J.H. 

correctly notes that there is a split among the Courts of Appeals regarding whether 

the expunction statute is “arrest” or “charge” based. However, this Court’s 
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precedent is clear. “[E]xpunction is unavailable if the offense resulted in any final 

conviction.” Ringo, 2014 WL 1285140, at *2 (citing In re J.O., 353 S.W.3d 291, 

293-94 (Tex. App.—El Paso 2011, no pet.)) (emphasis added). Because the charge

resulted in a final conviction, K.J.H. is not entitled to an expunction. See id. 

Accordingly, we sustain DPS’s issue. We affirm the trial court’s expunction order 

as to K.J.H.’s arrests of April 20, 2007, and February 17, 2010, and we reverse the 

trial court’s order as to the arrest of August 10, 2010, and render judgment that 

K.J.H. is not entitled to expunction of records pertaining to the arrest of August 10, 

2010.

AFFIRMED IN PART; REVERSED AND RENDERED IN PART.

________________________________

 STEVE McKEITHEN 

 Chief Justice

Submitted on July 31, 2014

Opinion Delivered September 4, 2014

Before McKeithen, C.J., Kreger and Johnson, JJ.