Affirmed and Majority and Dissenting Opinions filed August 13, 2020.

In The

Fourteenth Court of Appeals

NO. 14-18-00823-CV

R.G., Appellant

V.

HARRIS COUNTY DISTRICT ATTORNEY’S OFFICE, Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2018-41949

M A J O R I T Y O P I N I O N

Appellant R.G. appeals the denial of his petition for expunction. Because the 

record supports the trial court’s decision that R.G. failed to meet applicable 

expunction requirements, we conclude that the court did not abuse its discretion. 

Accordingly, we affirm the trial court’s judgment. 
2

Background

Our record reveals the following limited but undisputed facts. Based on a 

probable cause affidavit, R.G. was arrested and charged with two counts of injury to 

a child in 1992. According to the affidavit, R.G.’s three-week-old infant daughter 

suffered a broken right femur, broken ribs, and a skull fracture. The affidavit further 

states that R.G. confessed to the affiant that his conduct on or about October 1, 1992, 

resulted in his daughter’s broken leg and that his conduct on or about October 4, 

1992, resulted in his daughter’s broken ribs.

A single indictment under one cause number (No. 647073) alleged the felony

offenses that R.G.:

on or about OCTOBER 1, 1992 recklessly caused serious physical 

deficiency and impairment to [the Complainant], a child younger than 

fifteen years of age, by holding the Complainant by the legs against the 

rail of a play pen.

Count II

. . . on or about OCTOBER 4, 1992, did then and there unlawfully

intentionally and knowingly cause serious physical deficiency and 

impairment to [the Complainant], a child younger than fifteen years of 

age, by striking the Complainant with his hand.

Based on a plea agreement, the State dismissed the first count, but R.G.

pleaded guilty and served community supervision as to the second count. In 

February 2004, the district court signed an order discharging R.G. from community 

supervision based on his satisfactory completion of the conditions. 

In June 2018, R.G. filed a petition for expunction in civil district court. R.G. 

sought to expunge the criminal records and files pertaining to the offense alleged in 

count one of the indictment—the count the State dismissed. R.G. asserted that he 

was entitled to expunction because “the indictment or information was presented, 
3

but the same was subsequently dismissed or quashed on June 16, 1993.” The Harris 

County District Attorney’s Office answered with a general denial. 

The trial court conducted an oral hearing on R.G.’s petition. R.G. did not 

offer or present any evidence at the hearing. The district attorney’s office requested 

the court to take judicial notice of the probable cause affidavit, the indictment, the 

State’s motion to dismiss count one, and the order discharging R.G. from community 

supervision as to count two. All of these records relate to cause number 647073, and 

the trial court admitted them without objection. During the hearing, the district 

attorney’s office argued that both counts of injury to a child arose out of the “same 

transaction,” which, under the applicable provisions of the expunction statute, meant

that R.G. was not entitled to expunction of the dismissed count. 

After the hearing, the trial court denied R.G.’s petition. R.G. timely appealed.

Analysis

R.G. raises one issue: whether the two counts of injury to a child arose from 

the same transaction and whether he is entitled to expunction as to the count the State 

dismissed.

A. Governing Law and Standard of Review 

Expunction is a statutory remedy governed by article 55.01 of the Texas Code 

of Criminal Procedure. See Ex parte Scott, 476 S.W.3d 93, 94-95 (Tex. App.—

Houston [14th Dist.] 2015, no pet.). The purpose of the statute is to permit the 

expunction of records of wrongful arrests. Harris Cty. Dist. Attorney’s Office v. 

J.T.S., 807 S.W.2d 572, 574 (Tex. 1991); see also In re State Bar, 440 S.W.3d 621, 

624 (Tex. 2014). Even though the statute is contained in a criminal code, an 

expunction proceeding is civil in nature. See In re Expunction, 465 S.W.3d 283, 286 

(Tex. App.—Houston [1st Dist.] 2015, no pet.); Tex. Dep’t of Pub. Safety v. J.H.J., 

274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.). The 
4

petitioner accordingly bears the burden of proving that all statutory requirements 

have been met. J.H.J., 274 S.W.3d at 806; see Harris Cty. Dist. Attorney’s Office v. 

Hopson, 880 S.W.2d 1, 3 (Tex. App.—Houston [14th Dist.] 1994, no writ). Also, 

because an expunction is a statutory privilege rather than a constitutional or common 

law right, the statutory requirements are mandatory and exclusive. See Expunction, 

465 S.W.3d at 286; J.H.J., 274 S.W.3d at 806. The trial court has no power to extend 

equitable relief beyond the clear meaning of the expunction statute. See Ex parte 

Reed, 343 S.W.3d 306, 308 (Tex. App.—Houston [14th Dist.] 2011, no pet.).

The expunction statute provides, in pertinent part, and with emphasis on the 

determinative language:

(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, . . . provided that:

(A) regardless of whether any statute of limitations exists for 

the offense and whether any limitations period for the offense has 

expired, an indictment . . . 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, was 

dismissed or quashed, and the court finds that the 

indictment was dismissed or quashed because: [the person 

completed a veterans treatment court program, a mental 

health court program, or a pretrial intervention program;] 

the presentment had been made because of mistake, false 

information, or other similar reasons indicating the 

absence of probable cause at the time of the dismissal to 

believe the person committed the offense; or [] the 
5

indictment was void; or

(B) prosecution of the person for the offense for which the 

person was arrested is no longer possible because the limitations 

period has expired.

See Tex. Code Crim. Proc. art. 55.01(a)(2)(A), (B) (emphasis added). To meet his 

burden, R.G. was required to show that he was entitled to expunction under the 

general conditions of subsection (a)(2), and also was required to prove that the terms 

of either subsection (a)(2)(A) or (a)(2)(B) were satisfied. See Collin Cty. Dist. 

Attorney’s Office v. Fourrier, 453 S.W.3d 536, 540 (Tex. App.—Dallas 2014, no 

pet.). R.G. attempted to meet the terms of subsection (a)(2)(A). Accordingly, he 

was required to show that an indictment charging him with any felony offense 

arising out of the same transaction for which he was arrested either was not presented 

any time following the arrest, or if presented was dismissed for any reason stated in 

subsection (a)(2)(A)(ii).

The trial court decided that R.G. failed to meet his burden, and under our 

standard of review, we must uphold that decision unless the trial court clearly abused 

its discretion. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018); see Ex parte 

Cephus, 410 S.W.3d 416, 418 (Tex. App.—Houston [14th Dist.] 2013, no pet.). A 

trial court has no discretion, however, in determining what the law is or applying the 

law to the facts. See T.S.N., 547 S.W.3d at 620. We therefore review a trial court’s 

legal conclusions under a de novo standard. Id. Likewise, construction of a statute 

is a question of law, which we review de novo. See id.

The Code Construction Act controls when interpreting the Texas Code of 

Criminal Procedure. Tex. Gov’t Code §§ 311.001-.006. We analyze statutes “as a 

cohesive, contextual whole” with the goal of effectuating the legislature’s intent and 

employing the presumption that the legislature intended a just and reasonable result. 

T.S.N., 547 S.W.3d at 620; J.T.S., 807 S.W.2d at 574. Further, our analysis is limited 
6

to application of the plain meaning of the statutory language unless a different 

meaning is apparent from the context or the plain meaning leads to absurd or 

nonsensical results. T.S.N., 547 S.W.3d at 621; see also Willacy Cty. Appraisal Dist. 

v. Sebastian Cotton & Grain, Ltd., 555 S.W.3d 29, 38 (Tex. 2018).

B. Application

R.G. argued in the trial court and argues here that the two counts of injury to 

a child listed in the indictment did not arise out of the “same transaction” and, thus, 

an indictment charging him with the commission of any felony arising out of the 

same transaction for which he was arrested had not been presented against him. See

Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(i). The district attorney’s office contends, 

on the other hand, that an indictment was presented charging R.G. with the 

commission of a felony offense alleged in count two, which arose out of the same 

transaction for which he was arrested. Id. art. 55.01(a)(2)(A)(ii). The district 

attorney’s office suggests that subsection (a)(2)(A)(ii) is not satisfied because count 

two was not dismissed, but rather R.G. pleaded guilty to count two and received 

community supervision as part of a plea agreement resulting in the dismissal of count 

one. According to the district attorney’s office, article 55.01 embraces an “arrest 

based” approach, which means that a person is not entitled to have any records of 

their arrest expunged when any charge stemming from the arrest results in a final 

conviction. Because R.G. pleaded guilty to count two and served a community 

supervision sentence, the district attorney’s office says the entirety of his arrest 

records is not eligible for expunction.

Article 55.01 does not define the phrase “same transaction.” We have not 

located and the parties have not cited a Texas Supreme Court or Court of Criminal 

Appeals decision defining the word “transaction” for purposes of the expunction 

statute. The current law dictionary definition of “transaction” includes, 
7

“[s]omething performed or carried out” or “[a]ny activity involving two or more 

persons.” TRANSACTION, Black’s Law Dictionary (11th ed. 2019). In most 

expunction cases involving multiple charges arising from a single arrest, it is 

undisputed or clearly shown that the charges are part of the same transaction and 

thus little discussion is committed to the question.1 In one of these cases, the court 

turned to the meaning of “transaction” as construed under Penal Code section 3.01 

applicable to criminal episodes, which can include offenses committed pursuant to 

the same transaction or multiple transactions. Expunction of M.T., 495 S.W.3d at 

622 (citing Tex. Penal Code § 3.01). There, the court analyzed article 55.01(a)(1) 

and its exception in article 55.01(c) regarding acquittals.2 The court considered 

whether a murder offense, on which the petitioner was acquitted, was “committed 

pursuant to the same transaction” as offenses for aggravated assault with a deadly 

weapon, on which he was found guilty. Id. at 622. Referring to Penal Code section 

3.01, the court stated, “offenses are committed pursuant to the same transaction . . .

when the offenses arise out of a single event or act or closely related events or acts.”

Id. at 622-23 (citing cases). The court held that the offenses arose from the same 

transaction, noting that the petitioner’s charges resulted from one incident where he 

1

See, e.g., Ex parte N.T.L., No. 13-19-00019-CV, 2019 WL 4019716, at *1 (Tex. App.—

Corpus Christi Aug. 27, 2019, no pet.) (mem. op.) (two counts of assault in parking lot); Ex parte

Brown, No. 14-17-00695-CV, 2018 WL 3977174, at *1 (Tex. App.—Houston [14th Dist.] Aug. 

21, 2018, no pet.) (mem. op.) (capital murder and aggravated robbery occurred same day and arose 

from same transaction); In Matter of Expunction of M.T., 495 S.W.3d 617, 622 (Tex. App.—El

Paso 2016, no pet.) (murder and aggravated assault occurred in single incident when defendant 

struck victims with car); see also Ex parte Davila, No. 13-15-00202-CV, 2016 WL 872997 (Tex. 

App.—Corpus Christi Feb. 18, 2016, no pet.) (mem. op.); Ex parte Vega, 510 S.W.3d 544 (Tex. 

App.—Corpus Christi 2016, no pet.); Ex parte M.R.L., No. 10-11-00275-CV, 2012 WL 763139 

(Tex. App.—Waco Mar. 7, 2012, pet. denied) (mem. op.); Travis Cty. Dist. Attorney v. M.M., 354 

S.W.3d 920 (Tex. App.—Austin 2011, no pet.) (en banc). 

2 Article 55.01(c) provides in pertinent part that: “A court may not order the expunction 

of records and files relating to an arrest for an offense for which a person is subsequently acquitted 

. . . if the offense for which the person was acquitted arose out of a criminal episode, as defined by 

Section 3.01, Penal Code, and the person was convicted of . . . at least one other offense occurring 

during the criminal episode.” Tex. Code Crim. Proc. art. 55.01(c).
8

struck four individuals with a motor vehicle. Id. at 620, 623. The appellant was not 

entitled to expunction under article 55.01(a)(1). Id.

On the other hand, when courts have held or presumed that offenses do not

arise from the same transaction, the facts have shown that the offenses were entirely 

unrelated because they occurred months or years apart and involved completely 

different conduct. See T.S.N., 547 S.W.3d at 618 (offenses of misdemeanor theft by 

check and aggravated assault with deadly weapon unrelated and occurred years 

apart); Ex parte N.B.J., 552 S.W.3d 376, 378-79 (Tex. App.—Houston [14th Dist.] 

2018, no pet.) (separate offenses occurring months apart did not arise from same 

transaction). 

One case from the Eighth Court of Appeals presents a closer call. See In re 

D.W.H., 458 S.W.3d 99, 105-07 (Tex. App.—El Paso 2014, no pet.). There, police 

were alerted that D.W.H. may have been involved in a relationship with a student. 

Police executed an arrest and search warrant for D.W.H. While searching D.W.H.’s 

home, officers found a gun safe, a search of which revealed unregistered firearms. 

Id. at 102. The next day, police notified ATF, which conducted a further search 

pursuant to a warrant and found many items civilians may not legally possess. Id. 

These events led to a state charge for improper relationship between an educator and 

student and a federal charge for possession of unregistered firearms. Id. A state 

grand jury “no-billed” the improper relationship charge, but D.W.H. pleaded guilty 

to the federal charge and was placed on probation. Id. D.W.H. sought expunction 

of the state charge, which the trial court denied. On appeal, the issue was whether 

the charge and conviction for possessing illegal firearms arose out of “same 

transaction” as his arrest for improper relationship between an educator and student. 

Id. at 104. The court held, over dissent, that the offenses arose from the same 

transaction because the federal weapons charge arose out of the arrest for the state 
9

charge. Id. at 107.3 Thus, the trial court did not abuse its discretion in ruling that 

the D.W.H. was not entitled to expunction under article 55.01(a)(2)(A). Id. at 107-

08.

Though Texas’s high courts have not specifically addressed the meaning of 

“transaction” in article 55.01, the Court of Criminal Appeals has considered the term 

in other contexts, without settling on any controlling definition. E.g., Marks v. State, 

560 S.W.3d 169 (Tex. Crim. App. 2018) (holding indictments did not allege the 

“same conduct, same act, or same transaction” for Hernandez tolling purposes) 

(citing Hernandez v. State, 127 S.W.3d 768 (Tex. Crim. App. 2004))4; Rios v. State, 

846 S.W.2d 310, 314 (Tex. Crim. App. 1992) (construing Penal Code section 3.01 

in multiple murder case); Kalish v. State, 662 S.W.2d 595, 600 (Tex. Crim. App. 

1983). At least one judge has observed that a singular definition of “transaction” 

remains “elusive.” Marks, 560 S.W.3d at 176 (Yeary, J., dissenting). In Rios, the 

court considered the terms “criminal transaction” and “transaction” under Texas 

Penal Code section 3.01 in contrasting the difference between a “process” of 

carrying out multiple murders as distinguished from a “scheme or course of conduct” 

during which multiple murders are committed:

what apparently separates a “process . . . of carrying on or carrying out” 

3 The dissenting justice would have held that the offenses did not arise out of the same 

transaction. 458 S.W.3d at 109-13 (Rodriguez, J., dissenting).

4

In Marks, the original indictments charged the defendant with acting as a guard company 

by providing security services without a license. Marks, 560 S.W.3d at 170. The state amended 

the indictments to allege that the defendant accepted employment as a security officer to carry a 

firearm without a security officer commission. Id. The question was whether the indictments 

alleged the “same conduct, same act, or same transaction” for Hernandez tolling purposes. See id. 

The court held they did not, because, due to the difference in required elements and facts necessary 

to prove each offense, the original indictment would not have necessarily alerted the defendant 

that he could be charged with or might have to defend against the charge in the amended 

indictment. Id. at 171. Additionally, the court noted that though the original and amended 

indictments alleged the same date, they used “on or about” language, “so that it is not at all clear 

that the same transaction . . . is being alleged.” Id. 
10

multiple murders, under § 19.03(a)(6)(A), supra, from a “scheme or 

course of conduct” during which multiple murders are committed, 

under § 19.03(a)(6)(B), supra, is the continuity of the killing. In Vuong 

v. State, 830 S.W.2d 929, at 941 (Tex. Cr. App. 1992), we construed 

“criminal transaction” to embrace facts showing “a continuous and 

uninterrupted chain of conduct occurring over a very short period of 

time . . . in a rapid sequence of unbroken events.” . . . In another 

context we have said that “transaction may be understood to be an 

uninterrupted and continuous sequence of events or assaultive acts.” 

Rubino v. Lynaugh, 770 S.W.2d 802, at 804 (Tex. Cr. App. 1989) 

(internal quotes omitted) (carving doctrine). And in construing 

“transaction” in another statutory context, we have observed that a 

“criminal transaction terminates with cessation of conduct—ordinarily 

in a relatively brief period of time.” Kalish v. State, 662 S.W.2d 595, 

at 600 (Tex. Cr. App. 1983). 

Rios, 846 S.W.2d at 314. In holding the evidence in that case sufficient for a jury to 

find that appellant committed multiple murders as part of the “same criminal 

transaction,”

5

the court noted that the two murders occurred sometime within an 

eight-hour timeframe, the victims were killed in the same manner and with the same 

weapon, and their bodies were left within a few feet of each other. Id. 

Informed by the above authority, and without embracing any particular, 

inflexible definition, we conclude that determining whether multiple offenses arise 

from the same “transaction” for article 55.01’a purposes involves consideration of 

circumstance-based factors, particularly the degree of similarity or temporal 

proximity among the acts or events forming the basis of each charged offense and 

relevant factual connections between them. See, e.g., N.T.L., 2019 WL 4019716, at 

*3 (two counts of assault in parking lot involved same conduct); Brown, 2018 WL 

3977174, at *2-3 (capital murder and aggravated robbery involving similar conduct 

5 The Court of Criminal Appeals has not squarely said the terms “same transaction” and 

“same criminal transaction” mean the same thing. The First Court of Appeals has implicitly treated 

them synonymously, Expunction, 465 S.W.3d at 289, whereas the Eighth Court of Appeals has 

expressly held the two terms are distinct. D.W.H., 458 S.W.3d at 106. 
11

and occurring same day arose from same transaction); Expunction of M.T., 495 

S.W.3d at 622 (two offenses arose out of “closely related events or acts”; murder 

charge for which appellant was acquitted was part of “same transaction” as four 

counts of aggravated assault with a deadly weapon of four other individuals for 

which appellant was convicted); cf. T.S.N., 547 S.W.3d at 618 (offenses of 

misdemeanor theft by check and aggravated assault with deadly weapon unrelated 

and occurred years apart); N.B.J., 552 S.W.3d at 378-79 (charges “unrelated” 

because conduct separated by months and involved different substantive character). 

The closer two offenses are in character and in time, the more likely they are to arise 

from the same transaction.

Here, the record reflects that R.G. was arrested, and the grand jury returned a 

single indictment alleging two counts of similar offenses involving injury to R.G.’s

three-week-old daughter. The offenses alleged in support of both counts were based 

on nearly the same conduct, against the same victim, occurring at most three days 

apart and potentially occurring the same day.

6

 Both alleged offenses thus involved 

almost identical conduct and were of the same character. While we need not and do 

not opine how much time must pass between similar offenses before they might be 

deemed of different transactions, we can say, on this record, that a maximum of three 

days is not too long. 

When viewed in the light most favorable to the trial court’s decision, and 

considering the similar nature of the alleged conduct inflicted upon the same victim 

together with the relatively short timeframe in which that conduct was alleged to 

have occurred, we hold that the trial court reasonably could have concluded that both 

offenses arose out of the “same transaction” for purposes of article 55.01(a)(2)(A). 

6 According to the records submitted to the trial court, the indictment’s first count occurred 

“on or before October 1, 1992,” and the second count occurred “on or before October 4, 1992.” 
12

See, e.g., Brown, 2018 WL 3977174, at *3; Expunction of M.T., 495 S.W.3d at 622-

23; see also Matter of Expunction of R.P., 574 S.W.3d 641, 645-46 (Tex. App.—El 

Paso 2019, no pet.) (appellant’s failure to establish that felony offense did not arise 

out of same transaction as misdemeanor offenses he sought expunged disqualified 

him from expunction of misdemeanor offenses). 

Because an indictment was presented against R.G. for a felony offense arising 

out of the same transaction for which he was arrested, to be entitled to expunction 

of the records pertaining to the dismissed offense R.G. had to show that count two 

was dismissed or quashed because of any one of the circumstances listed in article 

55.01(a)(2)(A)(ii). R.G. made no showing in this regard in the trial court or in this 

court. As a matter of law, our record shows that the offense alleged in count two 

was not dismissed. R.G.’s counsel acknowledged during the hearing that count one 

of the indictment was dismissed “as part of” the community supervision sentence

R.G. received for count two. As well, the dismissal order for count one indicates it 

was dismissed because R.G. was “convicted in another case or count.” Based on the 

minimal information in our record, the trial court reasonably could have found that 

R.G. pleaded guilty to count two and was placed on community supervision for that 

count at least in part in exchange for dismissal of count one.

Several courts have concluded that a party is not entitled to expunction under 

subsection 55.01(a)(2) of a dismissed charge when, as here, that charge was 

dismissed as part of a plea agreement as to another charge arising from the same 

arrest. See, e.g., Tex. Dep’t of Pub. Safety v. F.A.V., No. 05-18-00996-CV, 2019 WL 

6974758, at *2-3 (Tex. App.—Dallas Dec. 20, 2019, pet. filed) (mem. op.); Tex. 

Dep’t of Pub. Safety v. Schuetze, No. 13-17-00661-CV, 2019 WL 150650, at *5 

(Tex. App.—Corpus Christi Jan. 10, 2019, pet. denied) (mem. op.); Matter of J.G., 

588 S.W.3d 290, 291, 294 (Tex. App.—El Paso 2019, no pet.); Ex parte C.E.A., 

No. 12-17-00311-CV, 2018 WL 1940377, at *2 (Tex. App.—Tyler Apr. 25, 2018, 
13

no pet.) (“[A] person is not entitled to have any arrest records expunged under Article 

55.01(a)(2) when a charge is dismissed, but that dismissal results in community 

supervision for any charge arising from the same arrest.”); Tex. Dep’t of Pub. Safety 

v. G.B.E., 459 S.W.3d 622, 628-29 (Tex. App.—Austin 2014, pet. denied) (en banc);

S.J. v. State, 438 S.W.3d 838, 846 (Tex. App.—Fort Worth 2014, no pet.) (appellant 

not entitled to expunction because he was placed on community supervision for a 

charge arising from the same arrest); Ex parte M.G., No. 10-13-00021-CV, 2013 

WL 3972225, at *2 (Tex. App.—Waco Aug. 1, 2013, no pet.); Rodriguez v. State, 

224 S.W.3d 783, 784-85 (Tex. App.—Eastland 2007, no pet.); Tex. Dep’t of Pub. 

Safety v. Aytonk, 5 S.W.3d 787, 788 (Tex. App.—San Antonio 1999, no pet.). 

For these reasons, we hold that the evidence supports an implied finding that 

R.G. is disqualified for an expunction because (1) the two offenses charged in the 

indictment arose from the same transaction forming the basis of his arrest, and (2) he 

failed to meet the requirements for expunction under article 55.01(a)(2)(A)(ii). See

Tex. Code Crim. Proc. art. 55.01(a)(2)(A). Because R.G. failed to meet his burden 

to show that he met the conditions for expunction, the trial court did not abuse its 

discretion in denying his petition for expunction. We overrule R.G.’s sole appellate 

issue.

The judgment of the trial court is affirmed.

/s/ Kevin Jewell

Justice

Panel consists of Justices Christopher, Jewell, and Spain (Spain, J., dissenting).