Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 403RD JUDICIAL DISTRICT
NO. D-1-EX-15-000739, HONORABLE BRENDA KENNEDY, JUDGE
Chief Justice Rose, Justices Goodwin and Shannon [*]
Rose, Chief Justice
Texas Department of Public Safety filed this appeal
challenging the district court's order for expunction of
records relating to M.G.'s arrest for sexual assault and
practicing medicine without a license. DPS contends that M.G.
was not entitled to expunction of his arrest records because
he failed to prove that he met the statutory requirements for
expunction. We will reverse the district court's order
and render judgment denying M.G. expunction of his records.
2015, M.G. filed a petition seeking to expunge records of his
arrest for sexual assault, a second-degree felony, and
practicing medicine without a license, a third-degree felony.
The indictment shows that the charges were based on the grand
jury's finding that M.G. sexually assaulted the victim
while purporting to conduct a gynecological exam. After M.G.
was convicted in another case of a similar charge arising
from another incident, these charges were dismissed
"pending further investigation." See Green v.
State, 137 S.W.3d 356, 367 (Tex. App.-Austin 2004, pet.
ref'd) (affirming M.G.'s conviction for practicing
medicine without license and causing psychological harm to
another victim by performing purported gynecological exam).
M.G.'s expunction petition specifically alleged that he
was entitled to expunction under Texas Code of Criminal
Procedure article 55.01(a)(2)(A)(ii) "because the
indictment was DISMISSED." See Act of May 27,
2011, 82d Leg., R.S., ch. 894, § 1, 2011 Tex. Gen. Laws
2275, 2275-76 (amended 2015, 2017) (current version at Tex.
Code Crim. Proc. art. 55.01(a)(2)(A)(ii)(c), (d)). He also
alleged that his indictment was void on its face and that his
charge of practicing medicine without a license was based on
statutes that were unconstitutional.
filed an answer generally denying all allegations in
M.G.'s expunction petition, demanding strict proof of his
allegations, and contending that M.G. was not entitled to
expunction of the records. The Travis County District
Attorney's Office intervened, filed an answer generally
denying all allegations in M.G.'s petition, demanding
strict proof, and filed special exceptions contending that
M.G. failed to state a cause of action under the expunction
statute because he failed to plead all elements of the cause
of action. The DA's office also filed a trial memorandum
noting that expunction is improper if a person is convicted
of any charge arising from the same arrest and contending
that M.G. was arrested at the same time on the charges that
were dismissed and the charge that ultimately resulted in his
conviction. M.G. filed a response disputing that contention.
Travis County Criminal Law Magistrate issued findings and
recommendations without holding an evidentiary hearing. The
magistrate found that M.G. was not arrested on both cases at
the same time and recommended granting M.G.'s petition
for expunction. That same day, the district court signed an
Order Directing Expunction of Criminal Records adopting the
magistrate's findings and recommendations, concluding
that the court had jurisdiction over the cause and the
parties, and further concluding that legal requirements for
notice to other parties were met. The order stated, in
The Court has adopted the findings of fact and
recommendations of the Travis County Criminal Law Magistrate.
All requirements of law concerning notice to other parties
having been complied with, and it appearing to the Court that
it has jurisdiction over this cause and all parties entitled
to notice of these proceedings having received notice, the
Court proceeded to consider the cause. It is the decision of
this Court that Petitioner is entitled to have his records
expunged. It is therefore ORDERED that all records arising
out of Petitioner's arrest by the Austin Police
Department for Sexual Assault and Practicing Medicine without
a license on July 15, 2001 (may show on some records as July
16, 2001) which is the subject of this cause, are EXPUNGED.
neither the magistrate nor the district court stated whether
M.G. met his burden of proving that he met the statutory
requirements for expunction, and no reference to article
55.01 appears in either of their rulings. DPS subsequently
filed this appeal challenging the expunction order.
is a statutory privilege, not a constitutional or common-law
right. In re Expunction, 465 S.W.3d 283, 290 (Tex.
App.-Houston [1st Dist.] 2015, no pet.) (op. on reh'g).
The statutory right to seek an expunction is available only
when all of the statutory conditions have been met. Texas
Dep't of Pub. Safety v. Nail, 305 S.W.3d 673, 674
(Tex. App.-Austin 2010, no pet.) (op. on reh'g). Trial
courts must strictly comply with the statutory requirements
and have no equitable power to expand the availability of the
remedy beyond what the Legislature has provided. Id.
at 675 (internal citations omitted).
petitioner bears the burden of proving compliance with all
statutory requirements for expunction in this civil
proceeding. Travis Cty. Dist. Attorney v. M.M., 354
S.W.3d 920, 923 (Tex. App.-Austin 2011, no pet.). "To be
entitled to an expunction under Article
55.01(a)(2)(A)(ii)"-as M.G. specifically pleaded
here-"the petitioner is required to prove that the
indictment was dismissed because a mistake, false
information, or other similar reason caused the presentment
of the indictment." In re Expunction of A.M.,
511 S.W.3d 591, 596 (Tex. App.-El Paso 2015, no pet.) (citing
Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(ii)). A petitioner
cannot meet his burden of proving compliance with all
statutory requirements for expunction of criminal records
with mere allegations in a verified pleading. Ex parte
K.R.K., 446 S.W.3d 540, 544 (Tex. App.-San Antonio 2014,
no pet.) (noting that "allegations in a petition seeking
expunction are not evidence"). Further, a petitioner is
not entitled to expunction simply because the State did not
pursue the specific charges for which the petitioner was
originally arrested. Ex parte Barham, 534 S.W.3d
547, 551 (Tex. App.-Texarkana 2017, no pet.). That fact,
without more, does not demonstrate that the original charges
were wrongful. Id. In such circumstances, additional
information must be provided to demonstrate that the original
charges were wrongful before a petitioner may obtain
expunction under subsection (a)(2) of article 55.01.