NUMBER 13-20-00316-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

EX PARTE ARTURO GALVAN

On appeal from the 103rd District Court

of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Silva

Memorandum Opinion by Chief Justice Contreras

This appeal concerns the denial of a petition for expunction of records relating to 

an arrest. See TEX. CODE CRIM. PROC. ANN. ch. 55. By three issues, pro se appellant 

Arturo Galvan contends the trial court erred by: (1) “failing to consider” exhibits in support 

of his petition; (2) failing to “correctly construe and interpret legislative language and 

intent”; and (3) denying his motion for bench warrant or telephonic appearance at the final 

hearing. We affirm.
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I. BACKGROUND

On December 10, 2019, Galvan filed a verified petition to expunge records 

pertaining to his January 8, 1988 arrest for injury to a child. See id.; TEX. PENAL CODE 

ANN. § 22.04. The petition stated that “the arrest was ‘dropped’” by the arresting agency, 

the San Benito Police Department, but was “refiled” as a “simple misdemeanor assault,”

to which he pleaded guilty. Galvan asserted that, because the arrests for misdemeanor 

assault and injury to a child were “executed on two separate dates,” that indicates that 

they were in fact “two separate offenses.” He argued that since he was not convicted of 

injury to a child, he is entitled to expunction of the January 8, 1988 arrest records under 

article 55.01(a)(2) of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 

55.01(a)(2) (generally stating a person is entitled to expunction of arrest records if “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”).

Citing code of criminal procedure article 55.01(a)(2)(A)(ii), Galvan further argued 

that the injury to a child charge was “dismissed/dropped because there was no probable 

cause AT THE TIME OF THE DISMISSAL to believe [he] had committed the offense.” 

See id. art. 55.01(a)(2)(A)(ii)(d) (generally requiring expunction of arrest records where a

charge is “dismissed or quashed” “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”). Specifically, he alleged that the injury to a child charge 

was “dropped . . . due to [the] complaining witness falsely alleging bodily injury when in 

fact, there was no proof that he had sustained even the minimum degree of injury” as 

required under the penal code. See id.; TEX. PENAL CODE ANN. § 22.04.
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As an exhibit to his petition, Galvan attached a printout of results of a “Criminal 

History Search” obtained from the Texas Department of Public Safety (DPS). Among 

other things, the exhibit reflects that Galvan was arrested for misdemeanor assault on 

December 30, 1987, and was later convicted of that offense in trial court cause number 

88-CCR-1143-A. The exhibit lists December 30, 1987, as the “Date of Offense” for the 

assault. The exhibit also shows that appellant was arrested on January 8, 1988, for injury 

to a child. Under the entry for the January 8, 1988 arrest, the exhibit states that the charge 

was “dropped by the arresting agency” but was “refiled as case #88-CCR-1143-A.” The

exhibit does not contain an alleged “Date of Offense” for the injury to a child arrest.

Galvan also filed a “Motion for Bench Warrant or in the Alternative Motion for 

Hearing by Conference Call,” and a “Motion for Leave of Court to Proceed In Forma 

Pauperis” accompanied by a “Declaration of Inability to Pay Costs.” The trial court granted 

the motion to proceed in forma pauperis but denied the request for a bench warrant or to 

appear by telephone.

DPS filed an answer along with copies of the complaint, information, judgment of 

conviction, and order discharging Galvan from probation in trial court cause number 88-

CCR-1143-A. The exhibits reflect that Galvan pleaded guilty to assault; was convicted;

was sentenced to twelve months in the county jail, with the sentence suspended and 

probation imposed for twelve months; and was assessed a $250 fine. DPS argued that 

Galvan was not entitled to expunction of the records of the January 8, 1988 arrest for 

injury to a child because that arrest “resulted in a final conviction” for assault. Cf. TEX.

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

The trial court held a hearing on Galvan’s petition for expunction on September 3, 
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2020, via Zoom. Galvan did not appear at the hearing in person, by phone, or through 

attorney representation. The trial court denied the petition on September 24, 2020, and 

this appeal followed. Appellant filed a pro se brief and the Cameron County District 

Attorney filed an appellee’s brief.

II. STANDARD OF REVIEW & APPLICABLE LAW

We review a trial court’s expunction order under an abuse of discretion standard. 

Ex parte Vega, 510 S.W.3d 544, 547 (Tex. App.—Corpus Christi−Edinburg 2016, no pet.); 

Heine v. Tex. Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. 

denied). The trial court commits reversible error if it does not strictly comply with the

statutory procedures for expunction. State v. Echeverry, 267 S.W.3d 423, 425 (Tex. 

App.—Corpus Christi–Edinburg 2008, pet. denied).

A person who was arrested for a criminal offense and who meets other statutory 

conditions may file a petition for expunction to have all records and files related to that 

arrest removed from the State’s records. See TEX. CODE CRIM. PROC. ANN. art. 55.01; 

Vega, 510 S.W.3d at 548. A petitioner who fails to satisfy any of the statutory 

requirements is not entitled to expunction as a matter of law. Collin Cnty. Dist. Att’y’s Off.

v. Fourrier, 453 S.W.3d 536, 539 (Tex. App.—Dallas 2014, no pet.). Thus, a trial court 

abuses its discretion if it grants an expunction when the petitioner has not met all statutory 

conditions. Vega, 510 S.W.3d at 548. Trial courts possess “no equitable power to permit 

expunction where it is not allowed” by statute. Id.

Article 55.01(a)(2)(A) of the Texas Code of Criminal Procedure governs when a 

person has a right to expunction of an arrest due to dismissal of the charge. TEX. CODE 

CRIM. PROC. ANN. art. 55.01(a)(2)(A). Article 55.01(a)(2) states that a person who has 
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been placed under arrest for either a felony or a misdemeanor may have records and files 

relating to the arrest expunged if the person proves that: (1) the person was released; (2)

the charge, if any, did not result in a final conviction; (3) the charge, if any, is no longer 

pending; and (4) there was no court-ordered community supervision under article 42.12 

of the Texas Code of Criminal Procedure. Id. art. 55.01(a)(2). If the person is charged by

indictment or information with the commission of “a misdemeanor offense based on the 

person’s arrest” or “any felony offense arising out of the same transaction for which the 

person was arrested,” then the person must also show that the indictment or information 

“was dismissed or quashed” for one of several reasons, including “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. art. 55.01(a)(2)(A)(ii)(d).

DPS argued in its answer that when multiple charges stem from the same arrest, 

the petitioner must prove that he meets the expunction requirements for every charge 

before records of the arrest can be expunged. See Tex. Dep’t of Pub. Safety v. G.B.E., 

459 S.W.3d 622 (Tex. App.—Austin 2014, pet. denied); Travis Cnty. Dist. Att’y v. M.M., 

354 S.W.3d 920, 927–28 (Tex. App.—Austin 2011, no pet.). It also cited case law stating 

that, under article 55.01(a)(2)(A)(ii), an “intervening ‘indictment or information charging 

the person with the commission of a misdemeanor offense based on the person’s arrest’ 

that has not be[en] dismissed or quashed disqualifies a petitioner from obtaining 

expunction of the original charge.” Ex parte Barham, 534 S.W.3d 547, 556 (Tex. App.—

Texarkana 2017, no pet.). However, the Texas Supreme Court recently held in Ex parte 

R.P.G.P. that “subarticles (a)(2) and (a)(2)(A) of Article 55.01 of the Texas Code of 

Criminal Procedure are offense-based provisions with regard to misdemeanors but arrest-
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based with respect to felonies.” 623 S.W.3d 313, 325 (Tex. 2021).

1 Thus, expunction 

under article 55.01(a)(2) is not available if “any felony offense” arose from the same 

arrest. Id. at 324; V.E. v. Travis Cnty. Dist. Att’y, 500 S.W.3d 652, 656 (Tex. App.—Austin 

2016, no pet.). On the other hand, misdemeanor offenses are eligible for expunction from 

arrest records on an individual basis. See R.P.G.P., 623 S.W.3d at 315.

III. ANALYSIS

A. Consideration of Exhibits

By his first issue, Galvan contends the trial court abused its discretion when it failed

to consider the exhibits attached to his petition as evidence. He offers no argument, 

record references, or citations to authority in support of this argument. Accordingly, the 

issue is waived. See TEX. R. APP. P. 38.1(i); Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 

2005) (providing that pro se litigants are held to the same standards as attorneys and 

must comply with the Texas Rules of Appellate Procedure).

B. Expunction

By his second issue, Galvan argues the trial court “fail[ed] to correctly construe 

and interpret” the statute and abused its discretion by denying his petition for expunction 

of the records.

Galvan’s argument hinges on the notion that the injury to a child offense, for which 

he was arrested on January 8, 1988, is “a sep[a]rate and distinct offense, with distinct 

and sep[a]rate times, places, and dates” and is “unrelated to any other offense for which 

he was arrested . . . .” He notes that the DPS records show two different dates for the 

1 Under the prior prevailing view, many appellate courts, including this Court, had “den[ied] 

expunction unless the petitioner establishe[d] that multiple offenses comprising an arrest [were] eligible for 

expunction.” Ex parte R.P.G.P., 623 S.W.3d 313, 318 (Tex. 2021). We note that DPS filed its answer in the 

trial court before R.P.G.P. was handed down.
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arrests for injury to a child (January 8, 1988) and assault (December 30, 1987). Galvan

contends that this indicates the offenses underlying those arrests were unrelated. In its 

brief, the Cameron County District Attorney argues the following in response:

While it is common for the arrest and offense dates to be the same, it is not 

at all abnormal for Law Enforcement to locate a suspect or even receive an 

initial criminal report some days after an offense takes place. There was 

one assault, Law Enforcement arrested the Petitioner for Injury to a Child 

and the offense was later charged by the District Attorney’s Office as a 

misdemeanor Assault.

We disagree with Galvan’s reading of the DPS records. As Galvan admits, the 

records unequivocally show that the injury to a child charge was “refiled” as a 

misdemeanor assault, to which Galvan pleaded guilty and of which he was convicted. 

While the records do show two different arrest dates, they do not show two different 

offense dates. Thus, it is apparent from the records that the January 8, 1988 arrest 

“resulted in a final conviction” for assault. See TEX. CODE CRIM. PROC. ANN. art. 

55.01(a)(2). Accordingly, Galvan is not entitled to expunction of the arrest records, 

regardless of the reason for why the injury to a child charge was dismissed. See id.; Vega, 

510 S.W.3d at 547; S.J. v. State, 438 S.W.3d 838, 846 (Tex. App.—Fort Worth 2014, no 

pet.).

2

Galvan cites State v. T.S.N., in which the appellant was arrested once for two 

unrelated offenses. 547 S.W.3d 617, 621 (Tex. 2018). The Texas Supreme Court held 

that the petitioner was entitled to expunction pursuant to article 55.01(a)(1) because she

had been acquitted of one of the offenses, even though she pleaded guilty to the other

2 The DPS records seem to indicate that Galvan was arrested on the assault charge before he was 

arrested on the charge for injury to a child, which creates confusion. Nevertheless, it is undisputed that 

Galvan's January 8, 1988 arrest for injury to a child was “refiled” into a cause number which eventually 

resulted in his conviction for assault.
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offense. Id.; see TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1) (authorizing expunction 

when a person is tried for the offense for which they were arrested but is acquitted by the 

trial court or pardoned). The T.S.N. court clarified, however, that “[t]he expunction scheme 

under subsection (a)(2) [was] not at issue, and [it] express[ed] no opinion about it.” T.S.N., 

547 S.W.3d at 623. Here, Galvan did not claim he was entitled to expunction pursuant to 

article 55.01(a)(1) or that he was acquitted or pardoned of the injury to a child charge. 

Instead, Galvan sought expunction of his records pursuant to article 55.01(a)(2). Thus, 

T.S.N. has no bearing on our analysis under these facts. See id.

We conclude that Galvan failed to meet the requirements of article 55.01(a)(2) 

because the record shows that, although the injury to a child charge was dismissed, it 

“resulted in a final conviction” for assault. See TEX. CODE CRIM. PROC. ANN. art. 

55.01(a)(2); R.P.G.P., 623 S.W.3d at 325; Vega, 510 S.W.3d at 547. Thus, the records 

relating to Galvan’s January 8, 1988 arrest for injury to a child are ineligible for expunction

as a matter of law. See Vega, 510 S.W.3d at 547; S.J., 438 S.W.3d at 845; Rodriguez v. 

State, 224 S.W.3d 783, 785 (Tex. App.—Eastland 2007, no pet.) (concluding that the 

appellant failed to meet the requirements of expunction under article 55.01(a)(2) because 

the records showed that although a theft charge was dismissed, the appellant was 

convicted of a class C misdemeanor offense for issuing a bad check); see also Ex parte 

De La Garza, No. 13-16-00522-CV, 2018 WL 1417450, at *3 (Tex. App.—Corpus Christi–

Edinburg Mar. 22, 2018, no pet.) (mem. op.) (concluding that appellant failed to meet the 

requirements of article 55.01(a)(2) because the record showed that although appellant’s

assault charge had been dismissed, as part of his plea agreement with the State, he was 

convicted of a class C misdemeanor offense for disorderly conduct). The trial court did 
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not abuse its discretion when it denied Galvan’s petition for expunction. See Vega, 510 

S.W.3d at 547. We overrule Galvan’s second issue.

C. Due Process

By his third issue, Galvan contends that the trial court abused its discretion by 

denying his “invoked due process right” to participate and give testimony at the final 

hearing, whether in person, by telephone conference call, or by some other effective 

means. In this regard, Galvan had filed a “Motion for Bench Warrant, or in the Alternative, 

Motion for Hearing by Conference Call,” requesting that he be allowed to participate in 

the “final hearing” on this matter. The trial court denied that motion.

“[A] trial court may rule on an expunction petition without conducting a formal 

hearing and without the consideration of live testimony, if it has at its disposal all the 

information it needs to resolve the issues raised by the petition.” Ex parte Wilson, 224 

S.W.3d 860, 863 (Tex. App.—Texarkana 2007, no pet.) (citing Ex parte Current, 877 

S.W.2d 833, 839 (Tex. App.—Waco 1994, no writ)). Because we have concluded 

Galvan’s claims fail as a matter of law based upon the pleadings, he was not entitled to 

a hearing. See id.3 Accordingly, we overrule Galvan’s third issue.

3 Even though the expunction statute requires the court to “set a hearing on the matter,” TEX. CODE 

CRIM. PROC. ANN. art. 55.02, § 2(c), a “hearing” does not necessarily contemplate a personal appearance 

before the court or even an oral presentation to the court. Ex parte Cephus, 410 S.W.3d 416, 420 (Tex. 

App.—Houston [14th Dist.] 2013, no pet.) (citing Cire v. Cummings, 134 S.W.3d 835, 844 (Tex. 2004)). 

Rather, when deciding whether to permit an incarcerated party to appear at trial, Texas courts consider 

various factors, including the party’s probability of success on the merits. In re Z.L.T., 124 S.W.3d 163, 

165–66 (Tex. 2003); see Cephus, 410 S.W.3d at 421 (“A trial court abuses its discretion in denying a motion 

for a bench warrant only if the inmate has been effectively barred from presenting his case.”). The burden 

is on the incarcerated party to show why his personal appearance is justified. Brewer v. Taylor, 737 S.W.2d 

421, 424 (Tex. App.—Dallas 1987, no writ). Due to our conclusion that Galvan was not entitled to a hearing, 

we need not address his claim that the trial court erred by denying his motion to appear at the hearing 

personally or by telephone. See TEX. R. APP. P. 47.1.
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IV. CONCLUSION

The trial court’s judgment is affirmed.

DORI CONTRERAS

Chief Justice

Delivered and filed on the

23rd day of September, 2021.