Court of Appeals of Texas, Fourth District, San Antonio
the 216th Judicial District Court, Kerr County, Texas Trial
Court No. 17655A Honorable N. Keith Williams, Judge Presiding
Sitting: Sandee Bryan Marion, Chief Justice Patricia O.
Alvarez, Justice Liza A. Rodriguez, Justice
ON MOTION FOR REHEARING
PATRICIA O. ALVAREZ, JUSTICE
5, 2019, this court issued an opinion, a dissent, and a
judgment in this appeal. Appellant Roberto Pasquale-Gaultier
Petitto timely filed a motion for rehearing and a motion for
en banc reconsideration. The Texas Department of Public
Safety filed a response to both motions. We deny
Appellant's motion for rehearing, but acting sua sponte
to clarify the applicable analysis, we withdraw our June 5,
2019 opinion and judgment and substitute this opinion and
judgment in their stead. The motion for en banc
reconsideration is moot.
appeals the trial court's order denying his petition for
expunction, filed on August 21, 2017, in Kerr County cause
number 17655A. The petition requested the expunction of all
records related to charges associated with Petitto's
arrest for driving while intoxicated on March 11, 2015.
Because Petitto failed to prove the driving while intoxicated
arrest was not arising out of the same criminal transaction
for which he was arrested, Petitto was not entitled to the
requested expunction. See Tex. Code Crim. Proc. Ann.
§ 55.01(a)(2)(A). We, therefore, affirm the trial
court's denial of Petitto's petition for expunction.
and Procedural Background
was arrested on March 11, 2015, for driving while intoxicated
and possession of marijuana. On May 31, 2016, Petitto entered
a plea of nolo contendere to the possession of marijuana
offense. The trial court deferred a finding of guilt and
placed Petitto on deferred adjudication probation for a
period of nine months. On March 9, 2017, having successfully
completed his deferred adjudication probation, the State
dismissed the possession of marijuana charge. On March 31,
2017, the State also dismissed the driving while intoxicated
charge based on Petitto having successfully completed a
pretrial intervention program.
August 21, 2017, Petitto filed a petition for expunction
seeking to expunge the driving while intoxicated arrest, and
the Texas Department of Public Safety filed a general denial.
On February 21, 2018, the trial court entered an order of
nondisclosure pertaining to all records of Petitto's
arrest for possession of marijuana. On May 11, 2018, Petitto
filed an amended petition for expunction.
hearing on Petitto's amended petition for expunction,
Petitto objected to being questioned regarding the marijuana
possession offense based on the nondisclosure order; the
trial court overruled his objection. At the conclusion of the
hearing, the State argued Petitto did not meet the statutory
requirements for an expunction because Petitto served
court-ordered community supervision for one of the charges
stemming from the arrest of March 11, 2015. The trial court
denied the petition, and this appeal ensued.
first issue hinges on whether the trial court erred, at the
expunction hearing, in allowing the State to ask questions
regarding the possession of marijuana offense given the
February 21, 2018 nondisclosure order.
Standard of Review
appellate court reviews a trial court's ruling on a
petition for expunction under an abuse of discretion
standard. State v. T.S.N., 547 S.W.3d 617, 620 (Tex.
2018); Ex parte Green, 373 S.W.3d 111, 113 (Tex.
App.-San Antonio, no pet.). However, "[t]o the extent a
ruling on expunction turns on a question of law, we review
the ruling de novo. T.S.N., 547 S.W.3d at 620;
Green, 373 S.W.3d at 113.
provided for in the Texas Code of Criminal Procedure,
"[a]n expunction proceeding is civil rather than
criminal in nature." Green, 373 S.W.3d at 113
(citing 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 petitioner therefore carries the burden of
proving that all statutory requirements have been
satisfied." J.H.J., 274 S.W.3d at 806.
Texas Code of Criminal Procedure Article
article 55.01 expunction allows an individual, previously
arrested for the commission of an offense, to have records
and files relating to the arrest expunged if all statutory
requirements are met. See Tex. Gov't Code Ann.
art. 55.01; Collin Cty. Dist. Attorney's Office v.
Fourrier, 453 S.W.3d 536, 539 (Tex. App.-Dallas 2014, no
pet.). The statute "protect[s] wrongfully- accused
people by eradicating their arrest records." In re
State Bar of Tex., 440 S.W.3d 621, 622 (Tex. 2014). More
specifically, the expunction order prohibits "the
release, maintenance, dissemination, or use of the expunged
records and files for any purpose." Tex. Gov't Code
Ann. art. 55.03(1).
is a statutory privilege, not a constitutional or common-law
right; therefore, the petitioner is not entitled to the
expunction remedy unless he meets all the requirements set
forth in article 55.01. See Green, 373 S.W.3d at
113; T.C.R. v. Bell Cty. Dist. Attorney's
Office, 305 S.W.3d 661, 663 (Tex. App.-Austin 2009, no
pet.); J.H.J., 274 S.W.3d at 806. Each statutory
provision is mandatory, and a petitioner is entitled to
expunction only upon a showing that every statutory condition
is met. J.H.J., 274 S.W.3d at 806. Satisfactory
compliance with all requirements set forth in
article 55.01 is mandatory for entitlement to the expunction.
See id. (citing Tex. Code Crim. Proc. Ann. art.
55.01); T.C.R., 305 S.W.3d at 663; J.H.J.,
274 S.W.3d at 806. "The trial court must strictly comply
with the statutory requirements, and it has no equitable
power to expand the remedy's availability beyond what the
legislature has provided." T.C.R., 305 S.W.3d
at 663; accord J.H.J., 274 S.W.3d at 806.
nondisclosure order prohibits a court from disclosing
"to the public any information contained in the court
records that is the subject of an order of nondisclosure of
criminal history record information." Tex. Gov't
Code Ann. § 411.076(a). The statute limits the
disclosure of the information to:
(1) criminal justice agencies for criminal justice or
regulatory licensing purposes;
(2) an agency or entity listed in Section 411.0765; or
(3) the person who is the subject of the order.
person seeking an order of nondisclosure of a criminal
history record files a petition in accordance with section
411.0745 of the Texas Government Code. See id.
§ 411.0745(a). The trial court shall determine if (1)
the individual is entitled to file the petition and (2) the
order is in the best interest of justice. Id. §
411.0745(e)(2). If the State fails to timely request a
hearing after notice from the trial court, a hearing is not
required. See id § 411.0745(e)(1).
Arguments of the Parties
contends that because an order of nondisclosure on the
marijuana possession was entered, prior to the hearing on the
petition for expunction of the driving while intoxicated, the
trial court erred in allowing the State to question Petitto
regarding the marijuana possession offense. See id.
§ 411.0765(b)(7) (providing criminal justice agencies
may only disclose to specific noncriminal justice agencies
including "a district court regarding a petition for
name change under Subchapter B, Chapter 45, Family
Code"). He argues the trial court's nondisclosure
order requires the information relating to the marijuana
possession offense to be withheld from the trial court or any
other agencies not specifically delineated within section
411.0765(b). See id. To hold differently would
deprive him of the benefit of his plea bargain agreement and
circumvent the purpose for the pretrial diversion.
State counters the statute governing nondisclosure orders
specifically provides disclosure for the dissemination of
information between criminal justice agencies. See
id. § 411.0765(a)(2) (providing a criminal agency
may disclose the same information "for criminal justice
. . . purposes"); § 411.082 (defining
"criminal justice purpose" as "an activity
that is included in the administration of criminal
we decline to adopt the State's argument, we nonetheless
affirm the trial court's denial of Petitto's petition
Review of Non-Disclosure and Expunction Statutes
construing statutory language, our primary objective is to
"ascertain and give effect to the Legislature's
intent." City of San Antonio v. Caruso, 350
S.W.3d 247, 250 (Tex. App.- San Antonio 2011, pet. denied);
accord City of Rockwall v. Hughes, 246 S.W.3d 621,
625 (Tex. 2008). "We rely on the plain meaning of the
text as expressing legislative intent unless a different
meaning is supplied by legislative definition or is apparent
from the context, or the plain meaning leads to absurd
results." Tex. Lottery Comm'n v. First State
Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).
"Determining legislative intent requires that we
consider the statute as a whole, reading all its language in
context, and not reading individual provisions in
isolation." Ross v. St. Luke's Episcopal
Hosp., 462 S.W.3d 496, 501 (Tex. 2015); see also
T.S.N., 547 S.W.3d at 620 ("Statutes are to be
analyzed '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.") (quoting Sommers for
Ala. & Dunlavy, Ltd. v. Sandcastle Homes, Inc., 521
S.W.3d 749, 754 (Tex. 2017)). We further presume that the
Legislature intended a just and reasonable result. Tex.
Gov't Code Ann. § 311.021(3).
remain cognizant that an expunction is a statutory privilege,
and not a right. See Green, 373 S.W.3d at 113. And a
nondisclosure requires the trial court to find the
requirements are met and the nondisclosure is in
the interests of justice. See Tex. Gov't
Code Ann. § 411.0745(e)(2) (emphasis added). Even
further, we must presume the Legislature intended the
statutes to be read together and analyze both statutes to
reach "a just and reasonable result." See
Sandcastle Homes, 521 S.W.3d at 754.
Same Criminal Transaction
court has long held the expunction statute "was not
intended to allow an individual who is arrested and enters a
plea of guilty to an offense arising from the arrest, to
expunge the arrest and all court records concerning the
arrest." Ex parte K.R.K., 446 S.W.3d 540');">446 S.W.3d 540, 544
(Tex. App.-San Antonio 2014, no pet.); see also Tex.
Dep't of Pub. Safety v. Ryerson, No. 04-16-00276-CV,
2016 WL 7445063, at *3 (Tex. App.-San Antonio, Dec. 28, 2016)
(mem. op.). In both K.R.K. and Ryerson,
this court reviewed 55.01(a)(2) under an
"arrest-based" analysis. See
K.R.K., 446 S.W.3d at 544; Ryerson, 2016 WL
7445063, at *3. Importantly, however, both cases involved
offenses arising out of the same criminal transaction-each
appellant was arrested and charged on the same day for
multiple offenses. See K.R.K., 446 S.W.3d at 541
(felony possession of controlled substance and possession of
marijuana on November 6, 2009); Ryerson, 2016 WL
7445063, at *1 (5 burglary of a vehicle charges on September
7, 2003). Petitto contends T.S.N. overruled any
opinion holding article 55.01(a) is an arrest-based statute.
T.S.N. court limited its holding to expunctions
filed under article 55.01(a)(1), but clearly explained
"[a]rticle 55.01 is neither arrest-based nor
offense-based." 547 S.W.3d at 623. The Supreme
Court's analysis in State v. T.S.N. is
instructive in our analysis. Id. In T.S.N.,
the court addressed whether "article 55.01's plain
language makes expunction an all-or-nothing proposition
relating to the arrest and all matters involved in it."
Id. at 619 (setting forth the court's analysis
was limited to article 55.01(a)(1)). T.S.N. was arrested in
2013 for felony aggravated assault; during the arrest
process, the officers located and executed an outstanding
arrest warrant for a misdemeanor theft by check pending from
2010. Compare id. at 618, 621 ("Here, a single
arrest occurred for multiple unrelated offenses.")
with Ryerson, 2016 WL 7445063, at *1 (arrested on
five charges of burglary of a vehicle; placed on deferred
adjudication for three charges and two charges dismissed);
K.R.K., 446 S.W.3d at 541 (arrested on felony
possession of controlled substance and misdemeanor possession
of marijuana; placed on deferred adjudication for misdemeanor
possession and felony dismissed). T.S.N. subsequently plead
guilty to the 2010 theft charge and was acquitted by a jury
on the 2013 felony assault. The State objected to her
petition to expunge the 2013 felony assault arrest and
T.S.N. Court concluded "records and files
relating to 'the offense' encompass the
whole of the records and files relating to 'the
arrest.'" See T.S.N., 547 S.W.3d at 621
(citing Tex. Code Crim. Proc. Ann. art. 55.01(a)(1))
(emphasis original). However, when multiple charges stem from
the same arrest, or:
an arrest is made pursuant to a charge or charges for
multiple related offenses as part of a criminal episode, the
statute just as clearly does not entitle the person
to expunction of any files and records relating to the
episode if the person either is convicted of one of the
offenses or charges for one of the offenses remain pending.
See id. (citing Tex. Code Crim. Proc. art. 55.01;
Tex. Penal Code Ann. § 3.01 (emphasis ...