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Ex parte D.S.

Court of Appeals of Texas, Seventh District, Amarillo

May 15, 2019


          On Appeal from the 364th District Court Lubbock County, Texas Trial Court No. 2018-530, 527, Honorable Bradley S. Underwood, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


          Brian Quinn Chief Justice.

         This is an appeal from an order granting the petition of D.S. to expunge. We affirm the decision of the trial court.


         The abbreviated record indicates that in March of 2012, D.S. was stopped and subsequently arrested for driving a motor vehicle while intoxicated.[1] 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.

         Once 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 illustrate why.

         In May of 2018, D.S. filed a petition for expunction wherein she sought to expunge her arrest for possessing the controlled substance.[2] 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 that decision.


         The 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."

         Various 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.).

         Section (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.[3] 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).

         Again, 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 ...

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