Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 364th District Court Lubbock County, Texas
Trial Court No. 2018-530, 527, Honorable Bradley S.
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Quinn Chief Justice.
an appeal from an order granting the petition of D.S. to
expunge. We affirm the decision of the trial court.
abbreviated record indicates that in March of 2012, D.S. was
stopped and subsequently arrested for driving a motor vehicle
while intoxicated. Sometime after her arrest, law enforcement
authorities were "inventorying [her] property for the
jail" when they found a plastic baggy within a Tylenol
bottle. The baggy allegedly contained a controlled substance
falling within penalty group 1.
D.S. arrived at the police station, she requested the
opportunity to use the bathroom. It was denied her. That
resulted in her urinating on herself and the floor of the
station. We mention this because the arresting officer
eventually executed a "Field Reporting Supplemental
Report" alluding to three criminal accusations against
D.S.; those offenses were DWI, possessing a penalty group 1
controlled substance, and criminal mischief for urinating. Of
those three, D.S. was prosecuted for and convicted of only
one, that being the offense of driving while intoxicated.
This apparently occurred per a plea bargain and resulted in a
120-day jail sentence which the trial court suspended.
Nothing became of the other charges, and the record does not
of 2018, D.S. filed a petition for expunction wherein she
sought to expunge her arrest for possessing the controlled
substance. An evidentiary hearing was held. At its
end, the trial court said "I say we test [the law of
expunction] again. I'm granting the expunction only as to
the charges that were brought by the law enforcement agency .
. . dealing with controlled substances. I am not touching the
DWI or anything related to the DWI other than how this
relates during the booking process." Its "Order
Granting Expunction of Criminal Records" memorialized
State appealed. In doing so, it argued as follows:
the trial court misinterpreted the expunction statute to
allow for the destruction of some charges stemming from a
single arrest, even though that arrest resulted in a sentence
of probation. The trial court interpreted Article 55.01 of
the Code of Criminal Procedure based on an
"offense-based approach," when the plain language
of various provisions of Chapter 55- including Article
55.01-does not support an "offense-based approach,"
but rather an "arrest-based approach."
opinions, including those issued from this court, were cited
in support of its argument. Yet, all preceded 2018. In May of
2018, the Texas Supreme Court issued State v.
T.S.N., 547 S.W.3d 617 (Tex. 2018), holding therein that
"[t]o the extent the courts of appeals have stated that
article 55.01 is entirely arrest-based, we disagree."
Id. at 623. "Article 55.01 is neither entirely
arrest-based nor offense-based." Id. The State
did not offer us its view on the effect of those words upon
the situation at bar. Nor did it address the post-2018
opinions citing or following T.S.N. This may be of
no consequence since our resolution of the appeal does not
depend upon the essence of T.S.N. or whether the
trial court should have utilized an arrest-based analysis.
This is so because the standard of review is one of abused
discretion. T.S.N., 547 S.W.3d at 620. It obligates
us to affirm the trial court's decision on any legitimate
ground supported by the record. Duchene v.
Hernandez, 535 S.W.3d 251, 255 (Tex. App.-El Paso
2017, no pet.); Payton v. Ashton, 29 S.W.3d 896, 899
n.3 (Tex. App.-Amarillo 2000, no pet.).
(a) of article 55.01 of the Texas Code of Criminal Procedure
states that 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 ...." Tex. Code
Crim. Proc. Ann. art. 55.01(a) (West 2018). The
"if" then describes two scenarios. It is the second
we apply here. Per subsection (a)(2), expunction may
occur if the applicant "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, unless the
offense is a Class C misdemeanor, provided that . .
. ." Id. art. 55.01(a)(2). (Emphasis added). In
turn, multiple scenarios follow the phrase "provided
that." Which applies at bar was something neither party
mentioned below or here. Yet, we see one that does, given the
specific circumstances at bar. It encompasses a situation
wherein the "prosecution of the person for the offense
for which the person was arrested is no longer possible
because the limitations period has expired."
Id. art. 55.01(a)(2)(B).
the controlled substance in question fell within penalty
group 1. Possession of a controlled substance in that penalty
group is a felony to which a specific limitations period was
and is not assigned. Consequently, the applicable limitations
period is that within which "all other felonies"
fall, or three years. See id. art. 12.01(7) (West
Supp. 2018); Ex parte Adil, No. 07-10-0215-CV, 2011
Tex.App. LEXIS 3415, at *2 n.4 (Tex. App.-Amarillo May 5,
2011, no pet.) (mem. op.). Because more than three years
lapsed between the March 2012 incident and the ...