Ex parte R.P.G.P.

Full title: EX PARTE R.P.G.P.

Court: SUPREME COURT OF TEXAS

Date published: May 14, 2021

623 S.W.3d 313 (Tex. 2021)

Opinion

No. 19-1051

05-14-2021

EX PARTE R.P.G.P.

Harold James Danford, Kerrville, Jonathan O'Hara, for Petitioner. Amanda B. Morrison, Jeanine C. Hudson, for Respondent. Mia Gisele Settle-Vinson, Houston, Lucy Wilke, Abigail Hurt, for Other interested party.

Harold James Danford, Kerrville, Jonathan O'Hara, for Petitioner.

Amanda B. Morrison, Jeanine C. Hudson, for Respondent.

Mia Gisele Settle-Vinson, Houston, Lucy Wilke, Abigail Hurt, for Other interested party.

Justice Guzman delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Boyd, Justice Devine, and Justice Busby joined.

This expunction case presents a straightforward, but confounding, statutory-construction issue: whether an arrest involving multiple offenses is divisible for purposes of expunging arrest records under Article 55.01 of the Texas Code of Criminal Procedure. Most appellate courts have favored an "arrest-based" construction of the statute that treats the offenses collectively over an "offense-based" approach that considers the offenses individually for expunction purposes. Under the arrest-based approach, which the court of appeals applied here, expunction is available only if all the offenses comprising an arrest are eligible for expunction.

We recently considered a partial expunction issue in State v. T.S.N. , in which a single arrest involved multiple wholly unrelated offenses.¹ We held that partial expunction of the arrest record was required and could be achieved through redaction, leaving intact the arrest record with respect to an unrelated offense that was not eligible for expunction.² In so holding, we observed that " Article 55.01 is neither entirely arrest-based nor offense-based" and held that statutory language in Article 55.01(a)(1), which permits expunction on the basis of an acquittal or pardon, cannot be squared with an arrest-based approach.³ We noted, however, that Article 55.01(a)(2), which concerns dismissals and plea bargains, has different requirements and addresses different factual scenarios than the acquittal and pardon provisions.⁴ In T.S.N. , we declined to consider whether an arrest-based construction would comport with Article 55.01(a)(2)'s language.⁵ That open question is central to the disposition of this appeal, and we hold that under Article 55.01(a)(2)(A), misdemeanor offenses are eligible for expunction on an individual basis. Because the petitioner is entitled to partial expunction of his arrest records, we reverse the court of appeals' contrary judgment.

1 547 S.W.3d 617, 619 (Tex. 2018).

2 Id. at 624.

3 Id. at 623-24 (construing Article 55.01(a)(1) as authorizing partial expunction and partial redaction of arrest records for individual offenses).

4 See id. at 623.

5 Id.

I. Background

R.P.G.P. was arrested for driving while intoxicated (DWI) with a blood alcohol level of at least .15. In an inventory search of his vehicle, a small amount of marijuana was discovered. R.P.G.P. was subsequently charged with two offenses: misdemeanor DWI and misdemeanor possession. Following R.P.G.P.'s successful completion of a pretrial intervention program, the DWI charge was dismissed. The possession charge, to which R.P.G.P. pleaded no contest, was dismissed after he served nine months of deferred adjudication probation.

After both charges had been dismissed, R.P.G.P. filed a petition to expunge the DWI arrest records pursuant to Article 55.01(a)(2)(A) of the Code of Criminal Procedure. The State opposed the partial expunction request on the basis that arrest records cannot be expunged as to any single offense unless all charges stemming from the arrest are eligible for expunction under Article 55.01. The possession charge was ineligible for expunction because R.P.G.P. had served the equivalent of court-ordered community supervision for that charge,⁶ so the State argued that no part of the arrest records could be expunged.

6 See Tex. Code Crim. Proc. art. 55.01(a)(2) (stating expunction is available if there is "no court-ordered community supervision" for a charge, if any).

While the expunction petition was pending, the trial court signed a nondisclosure order for the possession charge. A nondisclosure order limits the ability of a criminal justice agency to disclose information about criminal history that is the subject of the order.⁷ At the expunction hearing, R.P.G.P. argued the nondisclosure order shielded him from questioning about the possession charge, but the trial court overruled his objection. Based on R.P.G.P.'s testimony that he had been placed on community supervision for the possession offense, the trial court denied the expunction petition as to the DWI offense.

7 See Tex. Gov't Code § 411.0765 (limiting the ability of a criminal justice agency to disclose criminal history record information that is subject to a nondisclosure order).

The court of appeals affirmed in a split decision.⁸ Although the majority held that R.P.G.P. was properly questioned about the marijuana charge, the court's stated rationale is somewhat opaque.⁹ The court did not agree with the State that the nondisclosure statute permits disclosure in connection with expunction proceedings.¹⁰ Instead, the court construed the expunction statute as requiring "the trial court to review the entire criminal transaction surrounding the arrest," which necessarily included making inquiry about "any and all offenses or charges stemming from the same transaction from which an individual seeks an expunction."¹¹ Viewing Article 55.01(a)(2)(A) as mandating consideration of the arrest transaction in its entirety, the court explained that a nondisclosure order could not be used to circumvent the transactional inquiry.¹²

8 606 S.W.3d 755 (Tex. App.—San Antonio 2019).

9 Id. at 759-61.

10 Id. at 759.

11 Id. at 761.

12 Id.

On the expunction petition's merits, the court rejected R.P.G.P.'s argument that State v. T.S.N. categorically precludes an arrest-based construction of the expunction statute.¹³ Following the court of appeals' pre- T.S.N. precedent, the court held that arrest records for the DWI charge are not expungable under Article 55.01(a)(2) because R.P.G.P. received community supervision for the possession charge and that charge was related to and arose out of the "same transaction" as the DWI offense.¹⁴

13 Id. at 760-61 (discussing State v. T.S.N. , 547 S.W.3d 617, 623-24 (Tex. 2018) ).

14 Id. at 761-62.

The dissent disagreed on both counts, asserting that (1) Article 55.01(a)(2) permits expunction of individual offenses and (2) R.P.G.P. was not required to disclose the possession charge because expunction proceedings are not excepted from the nondisclosure statute's constraints.¹⁵ For those reasons, the dissent concluded that R.P.G.P. is entitled to expunction of the DWI arrest records.¹⁶

15 Id. at 773-74.

16 Id. at 774.

R.P.G.P.'s petition for review presents challenges to the appellate court's disposition of both issues. We agree with R.P.G.P. that Article 55.01(a)(2) is an offense-based expunction provision and, with respect to misdemeanor offenses, the proviso in Article 55.01(a)(2)(A) is also offense-based. Accordingly, we do not reach his alternative argument that the trial court erred in compelling his testimony regarding a nondisclosed offense.

II. Discussion

A. Expunction

Expunction is a civil remedy governed by Article 55.01 of the Texas Code of Criminal Procedure.¹⁷ An expunction order allows the person arrested to "deny the occurrence of the arrest and [deny] the existence of the expunction order [except in a criminal proceeding]" and prohibits governmental and private entities named in the order from releasing, maintaining, disseminating, or using the expunged records and files "for any purpose."¹⁸ Because the remedy is a privilege defined by the Legislature, and not a constitutional or common-law right, the statutory requirements are mandatory and exclusive and cannot be equitably expanded by the courts.¹⁹

17 Ex parte E.H. , 602 S.W.3d 486, 489 (Tex. 2020).

18 Tex. Code Crim. Proc. art. 55.03.

19 Ex parte E.H. , 602 S.W.3d at 489.

At issue here is R.P.G.P.'s asserted entitlement to an order expunging his DWI arrest records under Article 55.01(a)(2)(A)(ii)(c), which allows a person arrested for commission of a felony or misdemeanor to expunge "all records and files relating to the arrest" if:

(1) the person has been released;

(2) "the charge, if any, has not resulted in a final conviction";

(3) "the charge, if any ... is no longer pending";

(4) "there was no court ordered community supervision under Chapter 42A for the offense"²⁰ ; and

20 This requirement is inapplicable to Class C misdemeanors. Tex. Code Crim. Proc. art. 55.01(a)(2).

(5) " provided that " certain disjunctively stated conditions are satisfied.²¹

21 Id. (emphasis added).

As applicable here, expunction is available on satisfaction of the foregoing prerequisites "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 or information [1] charging the person with the commission of a misdemeanor offense based on the person's arrest or [2] charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested:

....

(ii) if presented at any time following the arrest, was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed because :

....

(c) the person completed a pretrial intervention program ...[.]²²

22 Id. art. 55.01(a)(2)(A)(ii)(c) (emphases added).

The parties agree that R.P.G.P.'s arrest records for the misdemeanor DWI charge would be eligible for expunction if the arrest had been only for that offense, because on an individual basis, both the prerequisites and the conditions in the proviso are satisfied as to that offense. But because the arrest involved multiple misdemeanor offenses, the point of dissension between the parties is whether the language setting out the prerequisites in subarticle (a)(2) and the language in the applicable proviso—subarticle (a)(2)(A)(ii)(c)—require the offenses to be viewed collectively for expunction purposes, precluding partial expunction of the arrest records. If the relevant provisions are arrest-based, R.P.G.P.'s DWI arrest records would not be expungable under the all-or-nothing approach the court of appeals applied because the possession offense is concededly ineligible for expunction under any provision in Article 55.01.

B. Standard of Review

A trial court's expunction order is reviewed for abuse of discretion, but the meaning of a statute is a question of law reviewed de novo.²³ Statutes are analyzed " ‘as a cohesive, contextual whole’ with the goal of effectuating the Legislature's intent," which we presume is a "just and reasonable result."²⁴ Unless the context or the statute instructs otherwise, our analysis begins with the plain language of the statute read in context, not in isolation.²⁵ Past versions of a statute may also be consulted to discern intent with respect to language that has been amended to its current form.²⁶

23 State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018).

24 Id.

25 Ross v. St. Luke's Episcopal Hosp. , 462 S.W.3d 496, 501 (Tex. 2015).

26 Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 443 (Tex. 2009) ("We give weight to the deletion of [an enacted] phrase ... since we presume that deletions are intentional and that lawmakers enact statutes with complete knowledge of existing law."); see Ojo v. Farmers Grp., Inc. , 356 S.W.3d 421, 445 n.31 (Tex. 2011) (Willett, J., concurring) ("Variations in enacted text can lend helpful interpretive context, and nobody should quarrel with examining how an enacted statute changes over time.").

C. Split of Authority

Our courts of appeals are not aligned in their approach to expunction of arrest records involving multiple offenses. Under the prevailing view, Article 55.01(a)(2) mandates an arrest-based approach, but what that means differs depending on the jurisdiction. Most courts deny expunction unless the petitioner establishes that multiple offenses comprising an arrest are eligible for expunction.²⁷ Under this all-or-nothing approach, the facts and circumstances of the offenses and their relatedness to one another are irrelevant.²⁸ Several courts have deferred answering whether Article 55.01(a)(2)(A) is categorically arrest-based by finding it sufficient to deny a partial expunction when eligible and ineligible offenses arise from the same criminal episode or transaction.²⁹ In a similar vein, the First Court of Appeals has recognized a false dichotomy between categorically offense-based and categorically arrest-based constructions of the statute, advocating for a "more nuanced approach ... that considers the arrest as a whole while recognizing that when more than one offense is charged, all charges may not necessarily stem from the same criminal episode."³⁰ To that end, that court appears to stand alone in taking an offense-based approach "at least when the charges are unrelated."³¹

27 See, e.g., Ex parte J.L. , No. 02-17-00406-CV, 2018 WL 4183081, at *3 (Tex. App.—Fort Worth Aug. 31, 2018, no pet.) (mem. op.) ("We have previously held that subsection (a)(2) is arrest -based and that a person seeking expunction must meet the requirements of article 55.01(a)(2) for all charges arising from the same arrest."); T.H. v. Tex. Dep't of Pub. Safety , No. 03-15-00304-CV, 2016 WL 5874869, at *4 (Tex. App.—Austin Oct. 6, 2016, no pet.) (mem. op.) (holding "that the current expunction statute maintains an arrest as the unit of expunction and that, consequently, a petitioner must prove that each charge arising from the arrest satisfies the requirements of article 55.01"); Ex parte Bradshaw , No. 05-17-01424-CV, 2018 WL 6065099, at *4 (Tex. App.—Dallas Nov. 20, 2018, no pet.) (mem. op.) (concluding that Article 55.01(a)(2) maintains an arrest as the unit of expunction); Ex parte F.M.J. , No. 13-19-00398-CV, 2020 WL 4382011, at *2 (Tex. App.—Corpus Christi July 30, 2020, no pet.) (mem. op.) ("[A] petitioner is not entitled to an expunction under article 55.01(a)(2) if the petitioner's arrest resulted in a final conviction on any charge."); Ex parte C.Z.D. , No. 12-17-00373-CV, 2018 WL 3041145, at *2 (Tex. App.—Tyler June 20, 2018, no pet.) (mem. op.) (concluding Article 55.01(a)(2) "is ‘arrest-based’ and expunction is not available for less than all offenses arising from one arrest").

28 See 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, pet. denied) (mem. op.) ("The facts of the cases ... have no effect on the application of the expunction statute. It is a bright line rule. If a defendant is arrested and charged with two or more offenses arising from that arrest, the statute does not allow the records relating to any of those offenses to be expunged if the defendant was convicted or placed on court-ordered community supervision for any of the offenses.").

29 See, e.g., Harris Cty. Dist. Attorney's Office v. C.D.F. , No. 01-19-00079-CV, 2020 WL 7502050, at *5-6 (Tex. App.—Houston [1st Dist.] Dec. 22, 2020, no pet.) (mem. op.) (adopting an arrest-based approach where all charges arise from the same criminal episode); Mitchell v. State , No. 09-20-00060-CV, 2020 WL 6494209, at *3 (Tex. App.—Beaumont Nov. 5, 2020, no pet.) (mem. op.) (holding that all charges arising from the same criminal episode for which the petitioner was convicted could not be expunged under Article 55.01(c) ); cf. Ex parte R.P.G.P. , 606 S.W.3d 755, 761 (Tex. App.—San Antonio 2019, pet. granted) (holding the expunction statute "necessarily requires an inquiry into any and all offenses or charges stemming from the same transaction from which an individual seeks an expunction").

30 C.D.F. , 2020 WL 7502050, at *5.

31 Ex parte N.B.J. , 552 S.W.3d 376, 384 (Tex. App.—Houston [14th Dist.] 2018, no pet.).

Many courts have yet to weigh in on the debate,³² but several courts adopting an arrest-based interpretation have held that a charge dismissed as part of a plea agreement is part of the same arrest as the other charges in the plea agreement.³³ Employing a less prevalent construction, the Sixth Court of Appeals takes an arrest-based approach under Article 55.01(a)(2)(A) only for post-arrest charges that "may have been filed in place of the original charge[s]" for which the petitioner was initially arrested and requires any such subsequent charges to also be eligible for expunction.³⁴

32 See Ex parte D.S. , No. 07-18-00399-CV, 2019 WL 2134030, at *2-3 (Tex. App.—Amarillo May 15, 2019, no pet.) (mem. op.) ; Matter of O.A.T. , No. 08-19-00284-CV, 618 S.W.3d 767, 772-75 (Tex. App.—El Paso 2020, no pet.) ; Ex parte R.L.S. , No. 10-16-00278-CV, 2018 WL 1866983, at *3 (Tex. App.—Waco Apr. 18, 2018, no pet.) (mem. op.). In R.L.S. , the Tenth Court of Appeals purported to take no stance as to whether Article 55.01(a)(2) is offense or arrest based but, at the same time, held that "the statute does not address or make allowances for the expunction of individual offenses stemming from an arrest," which is tantamount to an arrest-based interpretation. 2018 WL 1866983, at *3.

33 See R.G. v. Harris Cty. Dist. Attorney's Office , 611 S.W.3d 69, 76-77 (Tex. App.—Houston [14th Dist.] 2020, pet. filed) (agreeing with the proposition that "a party is not entitled to expunction under subsection 55.01(a)(2) of a dismissed charge when ... that charge was dismissed as part of a plea agreement as to another charge arising from the same arrest"); 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, no pet.) (mem. op.) (holding that petitioner could not expunge three dismissed charges because they were part of the same plea agreement as the remaining fourth offense for which he was convicted); Tex. Dep't of Pub. Safety v. G.B.E. , 459 S.W.3d 622, 629-30 (Tex. App.—Austin 2014, no pet.) (holding that a dismissed charge could not be expunged because the petitioner was convicted of another charge pursuant to the same plea agreement); Rodriguez v. State , 224 S.W.3d 783, 784-85 (Tex. App.—Eastland 2007, no pet.) (holding that petitioner could not expunge a dismissed charge because she was convicted of another charge pursuant to the same plea agreement); cf. Matter of J.G. , 588 S.W.3d 290, 294 (Tex. App.—El Paso 2019, no pet.) (holding that petitioner could not expunge two charges that were dismissed because they were part of the same plea agreement as a third charge to which he pleaded guilty).

34 See Ex parte Barham , 534 S.W.3d 547, 551-54 (Tex. App.—Texarkana 2017, no pet.).

Until now, this Court has had no occasion to address the matter, but we flagged the issue in State v. T.S.N. , which involved a similar partial expunction question under a different Article 55.01 expunction provision.³⁵ T.S.N. rejected an arrest-based construction of Article 55.01(a)(1), which applies to acquittals and pardons, as unsupported by the statutory language.³⁶ We further held that notwithstanding "the practical difficulties posed by partial expunctions and redactions," the Legislature has "demonstrated acceptance of selective redaction and expunction of records as valid remedial actions."³⁷ Our analysis in T.S.N. is instructive.

35 547 S.W.3d 617, 623 (Tex. 2018).

36 Id.

37 Id. at 624.

T.S.N. was simultaneously arrested for two wholly unrelated charges. In 2013, she was arrested for assault,³⁸ and during the arrest process, the officer discovered an outstanding warrant for her arrest on a 2010 charge of theft by check.³⁹ T.S.N. pleaded guilty to the theft charge but not guilty to the assault charge, for which she was later acquitted.⁴⁰ Following her acquittal, T.S.N. filed a petition to expunge the arrest records for the assault charge under Article 55.01(a)(1)(A), which permits expunction if "the person is tried for the offense for which the person was arrested" and is "acquitted by the trial court" unless "the offense ... arose out of a criminal episode ... and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode."⁴¹ The trial court granted the expunction request, the court of appeals affirmed, and the State appealed.⁴²

38 Id. at 618.

39 Id.

40 Id.

41 Id. ; Tex. Code. Crim. Proc. art. 55.01(a)(1)(A), (c).

42 T.S.N. , 547 S.W.3d at 619.

We also affirmed the judgment requiring partial expunction of the arrest records.⁴³ The State had argued that "the overriding structure of article 55.01 uses ‘arrest’ as the unit of measurement" for expunction because Article 55.01(a)'s prefatory language permitting expunction as to "all records and files relating to the arrest" requires an all-or-nothing approach to multiple-offense arrests.⁴⁴ We rejected the State's argument even though "several courts of appeals that [had] addressed the question [had] broadly concluded that article 55.01 in its entirety is arrest-based."⁴⁵ We observed that, from a textual perspective, " Article 55.01 is neither entirely arrest-based nor [entirely] offense-based," and with respect to the particular subarticle at issue there— Article 55.01(a)(1) —we held the statute is offense-based and permits partial expunction as to individual offenses.⁴⁶ This is so because Article 55.01(a)(1) focuses on "the offense," linking arrest records to a single offense. That is to say, the statute recognizes that an arrest for multiple offenses is the functional equivalent of individual arrests for each individual offense.⁴⁷ For that reason, " Article 55.01(a)(1)(A) entitl[ed] T.S.N. to expunction of all records and files relating to her arrest for the assault charge for which she was tried and acquitted" even though the arrest record could not be expunged with respect to the theft charge.⁴⁸

43 Id. at 624.

44 Id. at 621 (emphasis added) (citing and quoting Tex. Code Crim. Proc. art 55.01(a) ).

45 Id. at 622-23.

46 Id. at 623-24.

47 Id. at 621.

48 Id. at 624.

Our text-based construction of Article 55.01(a)(1)(A) was further buttressed by consideration of the statutory text as a whole. In that regard, we noted that applying an arrest-based approach to Article 55.01(a)(1)(A), contrary to its offense-based focus, would render superfluous Article 55.01(c)'s against expunction for acquitted charges that are part of a "criminal episode."⁴⁹ That prohibition would be unnecessary "[i]f the Legislature intended that all the offenses underlying a single arrest must meet the requirements for expunction under article 55.01(a)(1)(A) in order for expunction to be permitted."⁵⁰ Thus, although Article 55.01(a)(1) is offense based, the criminal-episode exception in Article 55.01(c) effectively converts it into an arrest-based provision when a person is arrested for multiple offenses arising out of the same "criminal episode" as that term is defined in Section 3.01 of the Penal Code. ⁵¹ Article 55.01(c) did not apply in T.S.N. because the theft-by-check offense was independent of the assault offense, but the criminal-episode exception in that subarticle was nevertheless significant with respect to confirming the Legislature's intent as manifested in Article 55.01(a)(1). If that expunction ground were already arrest-based, as the State had argued, Article 55.01(c)'s criminal-episode exception would be nothing more than a meaningless redundancy.⁵²

49 Id. at 622.

50 Id.

51 Today's dissent summarily concludes that R.P.G.P.'s DWI and possession charges are not eligible for expunction as individual offenses because they "amount to the same ‘criminal episode.’ " Post at 8-9. The "criminal episode" exception to expunction applies only to expunctions based on an acquittal and has no application here. Moreover, to the extent that exception is at all relevant to the "based on" standard in subarticle 55.01(a)(2)(A), the dissent does not cite or discuss the definition of "criminal episode" nor identify any evidence that R.P.G.P.'s two offenses meet the definition of that term. The "criminal episode" exception applies only when "two or more offenses ... are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or ... are the repeated commission of the same or similar offenses." Tex. Penal Code § 3.01 ; see Tex. Code Crim. Proc. art. 55.01(c) (adopting the penal code definition of the term). Mere contemporaneous arrest does not establish any connectedness between offenses. Such was the case in T.S.N. , where the petitioner was contemporaneously arrested for theft-by-check and assault, two unrelated offenses. And while a possession charge could be connected to an intoxication charge, that is not necessarily so, and the record here bears no evidence to support that the two offenses are related in any way except to the extent that R.P.G.P.'s arrest for one led to the discovery of the other. To the contrary, the record shows R.P.G.P. was charged with driving under the influence of alcohol, not marijuana. The record thus refutes the dissent's intimation that R.P.G.P.'s marijuana possession offense was related to his intoxication charge. See post at 8-9 (declaring that "driving while intoxicated while possessing an intoxicating substance amount[s] to the same ‘criminal episode’ ").
The dissent also summarily asserts that R.P.G.P. would bear the burden of proving that the two offenses are not part of the same criminal episode. Post at 9 n.18. Because the criminal-episode exception applies only to acquittals, we need not decide who bears the burden of proving the exception's applicability. We note, however, that the party seeking the benefit of a statutory exception generally bears the burden of proving it. See, e.g., Fed. Trade Comm'n v. Morton Salt Co. , 334 U.S. 37, 44-45, 68 S.Ct. 822, 92 L.Ed. 1196 (1948) (applying "the general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits"); Eckman v. Centennial Sav. Bank , 784 S.W.2d 672, 674-75 (Tex. 1990) (holding the defendant has the burden to plead and prove, "as an affirmative defense," the applicability of a statutory exception to "business consumer" status with respect to a DTPA claim); Burk Royalty Co. v. Riley , 475 S.W.2d 566, 568 (Tex. 1972) (holding that the initial burden to establish a homestead exemption is on the party claiming the exemption).

52 T.S.N. , 547 S.W.3d at 622.

In analyzing Article 55.01(a)(1), we acknowledged that several courts of appeals have interpreted the provision at issue here— Article 55.01(a)(2) —as being arrest-based.⁵³ But we noted that the two expunction provisions are "quite different."⁵⁴ That is, "[u]nder (a)(1), the acquittal or pardon is the only prerequisite to expunction. Whereas under (a)(2), the dismissal or plea bargain is only the beginning of the analysis."⁵⁵ But because "[t]he expunction scheme under subsection (a)(2) [was] not at issue[,] we express[ed] no opinion about it."⁵⁶

53 Id.

54 Id.

55 Id. (internal citations omitted).

56 Id. at 623.

We concluded our analysis in T.S.N. by rejecting an argument raised in an amicus brief and adopted by today's dissenting justices: that arrest records are not severable for expunction purposes and are not amenable to selective redaction and expunction. ⁵⁷ While acknowledging the "practical difficulties" of partial redaction of arrest records to facilitate expunction as to individual offenses, we observed that portions of Article 55.02 demonstrated that the Legislature had contemplated and embraced the practice.⁵⁸

57 Id. at 623-24 ; see post at 10.

58 T.S.N. , 547 S.W.3d at 624 (citing Tex. Code Crim. Proc. art 55.02(4)-(5) ).

The year after T.S.N. issued, the Legislature amended portions of Articles 55.01 and 55.02 but left our construction of the statute entirely undisturbed.⁵⁹

59 See Act of May 26, 2019, 86th Leg., R.S., ch. 1212, §§ 19, 20, 2019 Tex. Gen. Laws 3432, 3437-39.

D. Expunction Based on Dismissal or Plea Bargain under Article 55.01(a)(2)

Though not at issue in T.S.N. , the Article 55.01(a)(2) expunction scheme is central to the disposition of R.P.G.P.'s petition, and on the question we left open in T.S.N. , he argues our analysis there compels an offense-based construction here. The State urges the converse, relying on a host of court of appeals opinions to support the argument that expunction is unavailable for R.P.G.P.'s dismissed offense because that offense is based on the same arrest as the misdemeanor possession offense for which he served community supervision. This conclusion is especially clear, the State exhorts, because R.P.G.P.'s offenses were related and subject to the same plea-bargain agreement. Whether the offenses are considered to be related because they arise from the same arrest, arise from the same transaction, or are part of a comprehensive plea bargain, the State argues that R.P.G.P. cannot expunge the arrest records for the DWI arrest because the arrest records for the marijuana possession offense are ineligible for expunction under any Article 55.01 provision.

Construing the statute contextually and affording meaning to each word, we hold that the prerequisites to expunction in Article 55.01(a)(2) are offense-based, and the conditions in the applicable proviso— Article 55.01(a)(2)(A)(ii)(c) —are also offense-based with regard to misdemeanors.

i. The Prerequisites

Similar to our interpretation of Article 55.01(a)(1) in T.S.N. , subarticle (a)(2) links an arrest to a single offense. Article 55.01(a)(2) states that a person may expunge arrest records if "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 ...."⁶⁰ The use of "the" in referring to "the charge" and "the offense" indicates the Legislature, as with Article 55.01(a)(1), intended to tie an arrest to a single offense under Article 55.01(a)(2). On this point, the Court is unanimous.⁶¹

60 (Emphases added.)

61 See post at 4.

Comparing the current version of Article 55.01(a)(2) with the wording of the statute prior to its amendment in 2011 buttresses our interpretation. The prior version permitted expunction of all records relating to an arrest if "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 Article 42.12 for any offense...."⁶² In 2011, the Legislature replaced "any" offense with "the" offense with regard to the community-service prerequisite.⁶³ "Any" means "one, some, or all indiscriminately of whatever quantity," as compared to "the," a definite article.⁶⁴ Insofar as "any" encompasses "all," the prior version of Article 55.01(a)(2) implied that eligibility for expunction required that a petitioner did not serve community supervision for all the offenses comprising an arrest. The original phrasing does not tie an arrest to a single offense but to all offenses. The alteration from "any" to "the" indicates the Legislature's intent to change, or at least clarify, that arrests are tied to single offenses for purposes of satisfying the requirements in (a)(2).

62 Act of May 31, 2009, 81st Leg., R.S., ch. 1103, § 17(b), 2009 Tex. Gen. Laws 3010, 3019-20, amended by Act of May 25, 2011, 82d Leg., R.S., ch. 894, § 1, 2011 Tex. Gen. Laws 2275, 2275-76 (emphasis added).

63 Act of May 25, 2011, 82d Leg., R.S., ch. 894, § 1, 2011 Tex. Gen. Laws 2275, 2275-76.

64 Any , Merriam-Webster's Collegiate Dictionary (10th ed. 1993).

ii. The Proviso

For similar reasons, subarticle (a)(2)(A) of Article 55.01 is also offense-based for misdemeanors. This subarticle introduces disjunctively listed conditions that limit the right to expunction that would otherwise exist under Article 55.01(a)(2). The proviso's conditions vary depending on whether an indictment or information has been presented and whether the petitioner was charged with "a misdemeanor" or "any felony," and if the prerequisite is satisfied, requires expunction "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 or information [1] charging the person with the commission of a misdemeanor offense based on the person's arrest or [2] 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, and [either various time periods have elapsed that depend on the severity of the offense and the severity of any related charges or, without regard to the passage of time, the state's attorney has certified that the applicable arrest records are not needed for use in any criminal investigation or prosecution]; or

(ii) [has been presented ] at any time following the arrest, [but] was dismissed or quashed, and the court finds that the indictment or information was dismissed or quashed [for specifically enumerated reasons][.]⁶⁵

65 Tex. Code Crim. Proc. art 55.01(a)(2)(A) (emphases added).

Just as the subarticle (a)(2) prerequisite employs language that refers to an individual offense, so too does the subarticle (a)(2)(A) proviso. The proviso directly refers back to "the offense" described in the prerequisite until the proviso's discussion of felonies, at which point the statute shifts to plural language for the first time. The juxtaposition between the singular language used for misdemeanors and the plural language used for felonies demonstrates that an offense-based interpretation applies to misdemeanors while an arrest-based interpretation applies when much more serious crimes—felonies—are involved.

From the (a)(2) prerequisites up until the felony language in the (a)(2)(A) proviso, the statute uses only singular language to describe an expungable offense. The first clause in the (a)(2)(A) proviso uses the phrase "the offense," directly following the same singular language in the (a)(2) prerequisites. The phrase "the offense" in both subarticles thus refers to the same offense—the offense whose arrest records are sought to be expunged—and sets the scope of the text that follows.

Subarticle (a)(2)(A)'s reference to "the offense" is carried forward in the proviso through the use of singular language to describe "an" information or indictment and, following that phrasing, "a" misdemeanor offense. "An" in "an indictment or information" and "a" in "a misdemeanor offense" are singular and have identical definitions. "An" and "a" in this context are defined as "function word[s] before singular nouns when the referent is unspecified."⁶⁶ Given that both "an indictment" and "a misdemeanor" are singular and that the language prior to those terms refers to the offense records sought to be expunged, it stands to reason that "an indictment" and "a misdemeanor" makes the subarticle (a)(2)(A) proviso refer back to "the offense" under the subarticle (a)(2) prerequisite.

66 Merriam-Webster's Collegiate Dictionary (10th ed. 1993) (defining "a" and "an" and referring to entry 2 of "a" for the definition of "an") (emphasis added).

One could argue that "a" and "an" are not actually singular here. "A" and "an" can also mean "any," and "any" can be both singular and plural.⁶⁷ If "a" and "an" are plural, then "an indictment" and "a misdemeanor" mean "any indictment" and "any misdemeanor," which supports an arrest-based interpretation of Article 55.01(a)(2)(A). But the difference between how misdemeanors and felonies are treated in the remainder of subarticle (a)(2)(A) illustrates that although "any" is plural for felonies, "a" and "an" are singular for misdemeanors.

67 Id. (defining "a", "an", and "any").

Subarticle (a)(2)(A) contrasts an indictment "charging the person with the commission of a misdemeanor offense based on the person's arrest" with an indictment "charging the person with the commission of any felony offense arising out of the same transaction for which the person was arrested."⁶⁸ The use of the word "any" together with the phrase "arising out of the same transaction" clarifies that Article 55.01(a)(2)(A) is not offense-based for felonies. The "arising out of the same transaction" language indicates that "any felony offense" includes all felony offenses sufficiently connected to the charge whose arrest records are sought to be expunged. It makes little sense to say one felony offense arises "out of the same transaction" as itself. "Any" and "arising out of the same transaction" break the continuity of the prior offense-based language.

68 (Emphases added.)

Contrasted with how felonies are treated, the Legislature chose to use the word "a" to describe misdemeanors instead of "any." And unlike the language describing felony offenses, the misdemeanor language is not modified by expansive "arising out of the same transaction" language. Thus, the opposition between "a misdemeanor" and "any felony" indicates that "a" is singular and, consistent with the language before it, is describing the offense whose arrest records are to be expunged. "A" being singular for misdemeanors makes "an indictment" singular with regard to misdemeanors whereas the plural "any" for felonies makes "an indictment" plural with regard to felonies.

The above analysis helps explain that an indictment or information "based on the person's arrest" is referring to the misdemeanor offense or charge whose arrest records the petitioner is seeking to expunge. This meaning is elucidated by the preceding language in subarticles (a)(2) and (a)(2)(A) concerning only that offense or charge. The phrase "based on the person's arrest" also accentuates the differing treatment of the offense-based standard for misdemeanors and the arrest-based standard for felonies. The expansive felony language introduces offenses other than the offense whose records are sought to be expunged and the "based on the person's arrest" language serves, through contrast, to highlight that break.⁶⁹

69 The dissent's argument that an offense-based interpretation of the proviso renders its misdemeanor language superfluous ignores that language's role in the context of the overall statute, which is to serve as a foil for the broader felony language.

The language in Article 55.01(a)(2)(A)(i), which concerns charging documents under Article 55.01(a)(2)(A) that have not been presented against a petitioner at any time following his arrest, confirms the textual role the "based on the person's arrest" language plays. Article 55.01(a)(2)(A)(i)(a) allows arrest records for an uncharged offense to be expunged if "at least 180 days have elapsed from the date of arrest if the arrest for which the expunction was sought was for an offense punishable as a Class C misdemeanor and if there was no felony charge arising out of the same transaction for which the person was arrested."⁷⁰

70 (Emphasis added.)

The italicized language is in all the subarticles under Article 55.01(a)(2)(A)(i) concerning non-presented charging instruments for misdemeanor and felony offenses. This language ties an arrest to the offense for which records are sought to be expunged and illustrates that the Legislature understood an expunction of an arrest under Article 55.01(a)(2)(A) to refer to that offense. The italicized language thus demonstrates that "based on the person's arrest" is tied to the specific offense whose records are sought to be expunged. Further, the italicized language parallels the "based on the person's arrest" language in subarticle (a)(2)(A), with both provisions allowing expunction of the misdemeanor offense records sought to be expunged.⁷¹

71 Subarticle (a)(2)(A)(i)(a)'s felony language is slightly different from subarticle (a)(2)(A)'s felony language. Subarticle (a)(2)(A)(i)(a) bars expunction of a misdemeanor whose charging instrument has not been presented if a felony arose out of the same transaction and the time period prescribed by subarticle (a)(2)(A)(i)(c) has not elapsed. In contrast, subarticle (a)(2)(A) allows a misdemeanor whose charging instrument has been presented to be expunged when a felony is part of the same transaction only if the felony meets the requirements of subarticle (a)(2)(A)(ii).

In sum, subarticles (a)(2) and (a)(2)(A) of Article 55.01 of the Texas Code of Criminal Procedure are offense-based provisions with regard to misdemeanors but arrest-based with respect to felonies. The statute expressly provides that misdemeanors and felonies are to be treated differently and uses materially different language depending on the severity of the offense. The State provides no explanation for why "a" would mean "any" or why the Legislature would employ different language with respect to misdemeanors and felonies if not to treat them differently. Reading "a misdemeanor" as "any misdemeanor," as the State urges, would not honor the precise language the Legislature enacted. The State is also incorrect in asserting that partial expunction is disallowed if a misdemeanor offense arose out of the same transaction as an inexpungable offense; rather, the Legislature reserved the broad "arising out of" transactional-relatedness standard for felonies. Finally, the State does not identify any statutory language supporting the contention that a plea bargain changes what the enacted language says. Accordingly, because R.P.G.P.'s DWI charge is a misdemeanor that meets the statutory requirements in both subarticles, the arrest records related to it are eligible for expunction.

iii. Partial Expunction Permitted

Today's dissenting opinion reaches the opposite conclusion by relying on policy concerns, by directly contradicting T.S.N. 's analytical underpinnings and express holdings, and by over-emphasizing isolated words without giving meaning to the statute's language as a whole. Most problematic, the dissent relies on several arguments we found unpersuasive or expressly rejected in T.S.N. , namely that (1) the presence of the word "arrest" in the applicable expunction provision trumps other statutory language providing "the offense" as the appropriate unit of measurement for expunction;⁷² (2) this Court should defer to the construction intermediate appellate courts have placed on the statute;⁷³ (3) prefatory language making expunction applicable to "all records and files relating to the arrest" renders the statute's overall structure arrest-based for multiple charges and precludes partial expunctions on an offense basis;⁷⁴ (4) an offense-based construction is not appropriate because effecting partial expunctions through redaction would prove problematic for state agencies;⁷⁵ and (5) an arrest for multiple offenses is a "single arrest" as opposed to multiple arrests that correspond to each individual offense.⁷⁶ While it is true that T.S.N. involved a different expunction ground, our analysis encompassed and rejected structural arguments the dissent now embraces. At bottom, the dissent's statutory construction analysis is mainly driven by a refusal to accept that partial redaction of arrest records is permitted under the expunction statute.⁷⁷ But we settled that matter in T.S.N. without limiting our analysis to the specific ground for expunction at issue there,⁷⁸ and the Legislature has accepted it.⁷⁹

72 Compare post at 4-5, with State v. T.S.N. , 547 S.W.3d 617, 621, 623 (Tex. 2018).

73 Compare post at 10, with T.S.N. , 547 S.W.3d at 622-23.

74 Compare post at 10 ("The object of the statute is the expunction of ‘all records and files relating to the arrest,’ not some records."), with T.S.N. , 547 S.W.3d at 621-24 (holding that the petitioner was entitled "to expunction of all records and files relating to her arrest [for the expungable offense]" notwithstanding her contemporaneous arrest for an offense ineligible for expunction and noting that "all records relating to the arrest" as to individual offenses under the same arrest can be effectuated through partial redaction of documents).

75 Compare post at 10-11 ("Not only does the statute demand it, these courts [of appeals] practically understand that ‘partial, content-based removal or redaction of arrest files is not contemplated or sufficient,’ and ‘would lead to potentially serious problems for law-enforcement personnel.’ " (citations omitted)), with T.S.N. , 547 S.W.3d at 624 ("We recognize that there are practical difficulties posed by partial expunctions and redactions. But given the Legislature's demonstrated acceptance of selective redaction and expunction of records as valid remedial actions, the arguments of the State and DPS do not convince us." (citations omitted)).

76 Compare post at 6 ("When a search conducted pursuant to the investigation of one offense leads to the charging of the second offense, culminating in a single arrest, the offenses are ‘based on’ the same arrest."), with T.S.N. , 547 S.W.3d at 621 ("[T]he statute provides that one arrest for multiple offenses equates to multiple arrests for the offenses, each arrest tied to its own individual offense. " (emphasis added)).

77 Post at 2, 6, 10-11.

78 Compare 547 S.W.3d at 624 (relying on Article 55.02, which does not distinguish between expunction grounds under Article 55.01 in addressing legislative intent with regard to "the practical difficulties posed by partial expunctions and redactions" generally), with post at 11 ("Though we discounted in T.S.N. the record-keeping difficulties with partial redactions[,] ... [w]e should not discount them and disregard the Legislature's express treatment of multiple offenses based on the same arrest in a different portion of the statute."). Partial expunctions and redactions would, of necessity, involve multiple offenses based on the same arrest, so the dissent's attempt to distinguish T.S.N. as involving a different expunction ground is insupportable and also refuted by T.S.N. 's structural analysis of the statute. Similarly misplaced are the dissent's fears that partial expunction would mean that "[a]n officer investigating suspicious activity will not be forewarned of the defendant's past criminal history." Post at 11. That is inaccurate because partial expunction means arrest records would remain intact for offenses the Legislature determined to be ineligible for expunction. And as for dismissed, and often unadjudicated, offenses that are eligible for expunction, the Legislature has already determined that such criminal history would not be disclosed. The dissent fails to explain how partial expunction of arrest records as to eligible offenses results in law enforcement officers being less forewarned of past criminal history than they would be with total expunction of arrest records, which the dissent asserts is the statutory standard. See post at 10 ("The object of the statute is the expunction of ‘all records and files relating to the arrest,’ not some records.").

79 See supra note 59.

Equally troubling, the dissent offers little more than fiat in asserting that R.P.G.P.'s possession charge was "based on" his DWI arrest. Under the dissent's construction of the statute, whether one misdemeanor offense is "based on" the arrest for another misdemeanor offense is the lynchpin to obtaining expunction. Yet the dissenting opinion does not articulate any standard for making that determination, identifies no authority for whatever standard is being applied, and fails to cite evidence linking R.P.G.P.'s two offenses to one another except for the bare fact that arrest for one led the police to discover the other. Rather than articulating a standard, the dissent simply declares that "offenses are ‘based on’ the same arrest" "[w]hen a search conducted pursuant to the investigation of one offense leads to the charging of the second offense, culminating in a single arrest."⁸⁰ That is, the dissent would create an extra-statutory presumption that "a single detention resulting in two offenses [necessarily] meets the definition" if "petitioner has offered no contrary explanation."⁸¹ So while the dissent refuses to explain what it means for a distinct offense to be "based on" an arrest for another offense, the dissent nonetheless pins the responsibility on petitioners for proving the nonexistence of those circumstances. How are petitioners to meet the burden the dissent would place on them without knowing what facts they would have to negate? The dissent's circular tautology provides no answer.

80 Post at 6.

81 Id. at 6 n.12.

Further, by treating an arrest for multiple distinct offenses as a "single arrest" without regard to actual relatedness of those offenses, the dissent directly repudiates our holding in T.S.N. that "the statute provides that one arrest for multiple offenses equates to multiple arrests for the offenses, each arrest tied to its own individual offense. "⁸² Under the dissent's tenuous definition of "based on the arrest," wholly unconnected and unrelated offenses, like those in T.S.N. ,⁸³ would be ineligible for expunction if the individual arrests happen to occur contemporaneously.⁸⁴ And while a possession offense certainly could be connected to an intoxication offense, mere temporal proximity of an arrest for those distinct offenses does not make it necessarily so. Here, for example, the record reflects R.P.G.P. was charged with alcohol intoxication, not marijuana intoxication.

82 T.S.N. , 547 S.W.3d at 621 (emphasis added).

83 Id. at 618.

84 As we observed in T.S.N. , a single arrest may, and commonly does, involve multiple distinct offenses with varying degrees of relatedness between them. The dissent's oversimplified definition of "based on" would sweep so broadly as to preclude expunction of arrest records for offenses that bear absolutely no relation to one another other than the fortuity of contemporaneous arrest. T.S.N. , for example, involved an arrest for unrelated theft-by-check and assault offenses. Incident to arresting T.S.N. for assault, the law enforcement officer uncovered an outstanding arrest warrant for theft. In the words of the today's dissenting opinion, investigation and arrest for one offense led to T.S.N.'s being arrested for the other. Though there was a single arrest that relied on the same arrest report—facts the dissent argues preclude partial expunction here, see post at 2, 6, 10—we concluded that the single arrest equated to separate arrests for each offense and partial expunction was required. T.S.N. , 547 S.W.3d at 621. T.S.N. had already been charged with theft-by-check, so a charge for that offense did not follow the arrest. See post at 6 (stating an offense is "based on the arrest" when investigation of a different offense "leads to [ ] charging" the petitioner for that offense). But by focusing on that factual distinction, the dissent misses the point, which is that unrelated offenses may culminate in a single arrest. An expunction petitioner could be arrested contemporaneously for unrelated offenses without a prior arrest warrant, and even if an arrest warrant has been issued, formal charges will not necessarily precede the warrant's issuance. Although there were prior charges in T.S.N. , unlike here, the point is that a "single detention" could "result[ ] in two offenses" or "lead[ ] to" subsequent charges with respect to unrelated offenses, which in the dissent's view would make both offenses "based on the arrest" irrespective of their relatedness. See id. at 6 & n.12. Rather than explaining why that would not be the case, the dissent dodges the issue. See id. at 6 n.12.

The expunction statute is linguistically complex and presents a statutory construction challenge that courts at all levels have grappled with, but that is all the more reason to stick to the statute's language wherever it leads and adhere to principles our precedents have established rather than relying on extrinsic constructs to advance presumed policy objectives.

III. Conclusion

The court of appeals erred in holding that R.P.G.P.'s DWI arrest records are not eligible for expunction under Article 55.01(a)(2). We therefore reverse the court of appeals' judgment and remand to the trial court to grant R.P.G.P.'s petition and render an expunction order with regard to the DWI arrest records.

Justice Bland filed a dissenting opinion, in which Justice Blacklock and Justice Huddle joined.

Justice Bland, joined by Justice Blacklock and Justice Huddle, dissenting.

In Chapter 55 of the Code of Criminal Procedure, the Legislature has made expunction of an arrest record available to wrongfully arrested persons.¹ In so doing, however, it carefully limited expunction as a remedy when an arrest results in multiple criminal charges. The Court today decides that an arrest is deserving of expunction based on the dismissal of one criminal offense even when another charged offense, based on the same arrest, resulted in a no-contest plea bargain with community supervision. Because the statute does not permit the expunction of an arrest record in these circumstances, and the Court does, I respectfully dissent.

1 Tex. Code Crim. Proc. art. 55.01.

I

Kerrville Police arrested the petitioner in this case in March 2015. From that arrest, the State charged him with two Class B misdemeanor offenses: driving while intoxicated and possession of marijuana. The petitioner pleaded no contest to the marijuana possession offense, and the trial court imposed nine months of community supervision as part of a deferred-adjudication plea agreement.² After the petitioner completed community supervision, the State dismissed the marijuana charge pursuant to the plea agreement. The petitioner concedes that his arrest for this drug offense is not eligible for an expunction under the statute because he pleaded no contest to the charge and served court-ordered community supervision.

2 See id. art. 42A.101(a) (providing that a judge may order deferred adjudication after a plea of no contest). The trial court certified that the case was "a plea bargain case" and the defendant had "no right of appeal."

Meanwhile, the petitioner successfully completed a pretrial diversion program that addressed his driving-while-intoxicated offense. Upon completion of that program, the State dismissed that charge as well.

A few months later, in August 2017, the petitioner sought expunction of his arrest, citing his completion of the pretrial diversion program. At the expunction hearing, and over the petitioner's objection, the State introduced evidence of his plea bargain to the marijuana offense. The State showed that the petitioner had served community supervision and pleaded no contest, based on the same arrest as the driving while intoxicated arrest. Each charged offense relied on the same arrest report, number KPD 1500604. The trial court denied the petition for expunction.

The court of appeals affirmed.³ Because the no-contest plea bargain was relevant to whether the petitioner's arrest qualified for an expunction, the court held that the trial court properly admitted that evidence even though it is otherwise subject to a nondisclosure order.⁴ The court then examined the qualifications for expunction of an arrest when multiple criminal charges result, and it concluded that the statute does not permit expunction of the petitioner's arrest record because one of the multiple criminal offenses based on the arrest—possession of marijuana—does not qualify for an expunction.⁵

3 606 S.W.3d 755, 762 (Tex. App.—San Antonio 2019).

4 Id. at 761.

5 Id. at 762.

In this Court, the petitioner argues that the trial court and the court of appeals erred in denying expunction of his arrest record. He further argues that the trial court erred in admitting evidence of his no-contest plea and resulting community supervision for possession of marijuana in the expunction hearing because it was subject to a nondisclosure order. Citing a proviso in the statute that does not permit an expunction for multiple misdemeanor offenses based on the same arrest when all do not qualify, the State responds that Chapter 55 does not permit the expunction of petitioner's arrest record.

II

A

Expunction is a statutory privilege and stands as an exception to the established principle that court records ought to be open to the public.⁶ It serves to remove records of a wrongful arrest; it is not "intended to allow a person who is arrested, pleads guilty to an offense, and receives probation pursuant to a guilty plea to expunge arrest and court records concerning that offense."⁷ As a matter of principle, an arrest does not become wrongful if the person arrested is guilty of only some of the charges brought.

6 In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014).

7 Harris Cnty. Dist. Atty's Office v. J.T.S. , 807 S.W.2d 572, 574 (Tex. 1991) (quoting Tex. Dep't of Pub. Safety v. Failla , 619 S.W.2d 215, 217 (Tex. App.—Texarkana 1981, no writ) ) (interpreting earlier version of expunction statute).

The Legislature's application of this principle is found within article 55.01(a) of the Texas Code of Criminal Procedure. Article 55.01, first and foremost, focuses on "the arrest" record, in its entirety:

RIGHT TO EXPUNCTION. (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 :⁸

8 Tex. Code Crim. Proc. art. 55.01 (emphasis added).

The "if" in article 55.01(a) conditions expunction of "the arrest" on examining an offense to determine whether it qualifies. The offense qualifies for expunction "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 , unless the offense is a Class C misdemeanor, provided that :⁹

9 Id. art. 55.01(a)(2) (emphasis added).

The proviso that focuses on multiple misdemeanor offenses that follows the "provided that" switches from "the offense" back to the "person's arrest," in subsection (a)(2)(A). Subsection (a)(2)(A) asks whether, in the case of misdemeanor offenses, a charge exists based on the "person's arrest" that does not qualify:

(A) regardless of whether any statute of limitations exists for the offense and whether any limitations period for the offense has expired, an indictment or information charging the person with the commission of a misdemeanor offense based on the person's arrest or 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 or information was dismissed or quashed because:

...

(c) the person completed a pretrial intervention program authorized under Section 76.011, Government Code, other than a veterans treatment court program created under Chapter 124, Government Code, or former law, or a mental health court program created under Chapter 125, Government Code, or former law ...¹⁰

10 Id. art. 55.01(a)(2)(A) (emphasis added).

Standing alone, the petitioner's driving while intoxicated arrest qualifies for an expunction under subsection (a)(2)(A)(ii)(c) because the State dismissed this charge after he completed a pretrial intervention program and the petitioner had no court-ordered community supervision.

But the petitioner's arrest for driving while intoxicated does not stand alone. The State also charged him with possession of marijuana. He pleaded no contest and agreed to a plea bargain for that charge. It is undisputed that a plea bargain that results in community supervision, like the petitioner's, does not satisfy the 55.01(a)(2)(A) proviso. The path to expunction for the arrest forks at subsection (a)(2)(A), which in the case of multiple offenses denies expunction for the arrest where there is "an indictment or information charging the person with the commission of a misdemeanor offense based on the person's arrest" that does not fulfill the statute's enumerated criteria.

The petitioner's no-contest, deferred-adjudication plea to his marijuana possession charge concededly does not meet these criteria. A person is not entitled to expunction unless all the statutory conditions are met;¹¹ therefore, it is petitioner's burden to prove that the marijuana possession offense is not "based on the ... arrest" for driving while intoxicated. Petitioner offers no support for a conclusion that the two charges are based on different arrests. The arrest record for both charges is the same. Police uncovered the marijuana after they stopped the petitioner for driving while intoxicated. When a search conducted pursuant to the investigation of one offense leads to the charging of the second offense, culminating in a single arrest, the offenses are "based on" the same arrest.¹² Because an information charging a misdemeanor criminal offense based on the person's arrest does not meet the statute's criteria for expunction when multiple criminal charges result, the trial court and the court of appeals properly denied the petitioner's request for an expunction of his arrest record.

11 State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018).

12 We do not need to theorize about the outer limits of "based on" to conclude that a single detention resulting in two offenses meets the definition, where petitioner has offered no contrary explanation. The Court states that not all charges filed contemporaneously should meet the "based on the arrest" criteria, pointing to the example of the petitioner in T.S.N. Ante at 23. The petitioner in that case was charged with theft-by-check in 2010 and with assault in 2013; she was not arrested for one crime pursuant to the investigation of the other but on an outstanding arrest warrant. T.S.N. , 547 S.W.3d at 618.

The Court holds that the indefinite article "an" stands in contrast to the use of "any" for felonies in the same proviso in subsection (a)(2)(A). A person charged with multiple felonies must satisfy the expunction prerequisites for each felony arising out of the same transaction, the Court theorizes, but a person charged with multiple misdemeanors need only satisfy the expunction prerequisites for a particular misdemeanor. Its holding is contrary to the plain meaning of article 55.01(a)(2)(A).

B

As the Court observes, "an" can mean "any."¹³ What the indefinite article stands in contrast to is the definite article "the," as in "the offense" used in subsection (a)(2), just above subsection (a)(2)(A).

13 Ante at 17; See A , Merriam-Webster Online ("indefinite article ... 3b: ANY").

The Legislature separated the standards in subsection (a)(2)(A) for arrests that result in multiple charges depending on whether they are misdemeanors or felonies. Multiple misdemeanors "based on the person's arrest" are grouped together. Multiple felonies "arising out of the same transaction for which the person was arrested" are also grouped together. That difference does not mean, as the Court suggests, that the Legislature altogether eliminated consideration of multiple misdemeanor offenses based on the same arrest in deciding whether the arrest qualifies for an expunction.

The earlier version of the statute does not buttress the Court's reading. The Court attributes the Legislature's change in 2011 from "any offense" to "the offense" in the language above subsection (a)(2)(A) as an intent to expand the availability of expunction. Had the Legislature meant to employ the same criteria for expunction regardless of whether the arrest resulted in multiple misdemeanor charges, however, it would have eliminated misdemeanors from the conditions of article 55.01(a)(2)(A) altogether, as the Court does. The Legislature did not.

Instead, the 2011 amendments blended felonies and misdemeanors.¹⁴ The amendments added provisos relating to limitations and waiting periods and placed other conditions on the expunction of a "person's arrest."¹⁵ Reading the amendments together, the Legislature paralleled the conditions for felonies and misdemeanors; it did not further diverge them. "The legislature does not alter major areas of law ‘in vague terms’ or no terms at all—‘it does not, one might say, hide elephants in mouseholes.’ "¹⁶

14 In State v. Beam we held that despite the reference to "felonies" in (a)(2)(A), the proviso in (a)(2)(A)(i) also applied to the expunction of misdemeanors. 226 S.W.3d 392, 393–95 (Tex. 2007). The 2011 amendments followed.

15 Act of May 25, 2011, 82d Leg., R.S., ch. 690, § 1, 2011 Tex. Gen. Laws 1653, 1653–54 (codified at Tex. Code Crim. Proc. art. 55.01(a)(2)(A) & (a)(2)(A)(i)(a) –(d) ).

16 Wasson Interests, Ltd. v. City of Jacksonville , 489 S.W.3d 427, 438 (Tex. 2016) (quoting Whitman v. Am. Trucking Ass'ns , 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (Scalia, J.)).

Our opinion in State v. T.S.N. does not compel a different reading of the statute. There, we recognized that the expunction statute "is neither entirely arrest-based nor offense-based," and concluded that subsection (a)(1)—concerning acquittals and pardons—was "offense-based" because reading it as "arrest-based" would result in rendering subsection (c) superfluous.¹⁷ Subsection (c), however, expressly applies to expunctions under (a)(1); it exerts no influence on (a)(2). If its existence compelled us to read (a)(1) as "offense-based," that compulsion is entirely absent for (a)(2).

17 T.S.N. , 547 S.W.3d at 622 (interpreting article 55.01(c), which provides 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, whether by the trial court, a court of appeals, or the court of criminal appeals, 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 or remains subject to prosecution for at least one other offense occurring during the criminal episode").

The Court's reading of the statute is at odds with the overall expunction statute. If the petitioner before us had instead been acquitted of the driving while intoxicated charge—formally and officially adjudicated not guilty—he would not be entitled to expunge the records relating to the marijuana offense because driving while intoxicated while possessing an intoxicating substance amount to the same "criminal episode."¹⁸ The Legislature has viewed the commission of multiple offenses more stringently than single offenses for expunction purposes under both subsections (a)(1) and (a)(2). While the multiple-offense distinction remains in (a)(1), the Court effectively eliminates it for multiple misdemeanor offenses under (a)(2). The disparate result: a defendant who obtains an acquittal of one of multiple offenses but pleads guilty to a misdemeanor is not entitled to an expunction, but he would have been had the charge instead been dismissed.

18 While the record on the relatedness of the petitioner's driving while intoxicated and possession offenses is sparse, the burden is on the petitioner to prove that the conditions for expunction are met. Id. at 620 ("A person is not entitled to expunction until all of the statutory conditions are met.").

If the Legislature required such a result—however disparate—we would be obliged to honor it. But no such requirement exists in the statute. By the Court's own description, the statute is "confounding" and "linguistically complex."¹⁹ As we said in T.S.N. , "Under (a)(1), the acquittal or pardon is the only prerequisite to expunction. Whereas under (a)(2), the dismissal or plea bargain is only the beginning of the analysis."²⁰ The Legislature erected a thicket of conditions in (a)(2), including some that curtail the availability of an expunction when multiple criminal charges arise out of one arrest.²¹ The Court's insistence on upending that scheme based on the use of an indefinite article ignores the context of "an" in the sentence itself, the statutory subsection, and the overall approach to the statute, which treats differently an arrest that results in multiple criminal charges.

19 Ante at 1, 23.

20 T.S.N. , 547 S.W.3d at 622 (citation omitted).

21 E.g. , Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(i)(a) –(c) (setting different waiting periods depending on which offenses were charged arising out of the same transaction).

Cohesively considering the statute, the Legislature requires each offense based on the same arrest (for misdemeanors) or criminal transaction (for felonies) to meet the statute's conditions before that arrest record qualifies for expunction.

C

Faced with this question, most of the courts of appeals, steeped in criminal law, rightly read the statute as barring expunction for one offense if all offenses based on the same arrest do not qualify.²² Rightly, because the statute mandates an arrest-based approach when considering multiple criminal charges based on the same arrest. The object of the statute is the expunction of "all records and files relating to the arrest," not some records.²³ Not only does the statute demand it, these courts practically understand that "partial, content-based removal or redaction of arrest files is not contemplated or sufficient,"²⁴ and "would lead to potentially serious problems for law-enforcement personnel."²⁵ The Legislature's permission for agencies and attorneys to retain certain files in section 4 of article 55.02 is quite different than ordering a permanent partial expunction.²⁶ Though we discounted in T.S.N. the record-keeping difficulties with partial redactions in concluding that they should not overcome the meaning of the statute where it expressly provides for an expunction after an acquittal, those difficulties are increased when multiple offenses result from the very same arrest.²⁷ We should not discount them and disregard the Legislature's express treatment of multiple offenses based on the same arrest in a different portion of the statute.

22 E.g., R.G. v. Harris Cnty. Dist. Atty's Office , 611 S.W.3d 69, 77 (Tex. App.—Houston [14th Dist.] 2020, pet. filed) ; Ex parte F.M.J. , No. 13-19-00398-CV, 2020 WL 4382011, at *2–3 (Tex. App.—Corpus Christi–Edinburg July 30, 2020, no pet.) (mem. op.) ; Ex parte Bradshaw , No. 05-17-01424-CV, 2018 WL 6065099, at *3–4 (Tex. App.—Dallas Nov. 20, 2018, no pet.) (mem. op.) ; Ex parte J.L. , No. 02-17-00406-CV, 2018 WL 4183081, at *3 (Tex. App.—Fort Worth Aug. 31, 2018, no pet.) (mem. op.) ; Ex parte C.Z.D. , No. 12-17-00373-CV, 2018 WL 3041145, at *2 (Tex. App.—Tyler June 20, 2018, no pet.) (mem. op.). But see Ex parte N.B.J. , 552 S.W.3d 376, 384 (Tex. App.—Houston [14th Dist.] 2018, no pet.) ("We therefore depart from our sister courts that have interpreted article 55.01(a)(2) as providing for expunction only on an overall ‘arrest-based’ basis, and instead conclude that the ‘statute provides that one arrest for multiple offenses equates to multiple arrests ... each arrest tied to its own individual offense.’ " (quoting T.S.N. , 547 S.W.3d at 621 )).
The courts of appeals were even less conflicted about the interpretation of the statute before our decision in T.S.N. See, e.g., Tex. Dep't of Pub. Safety v. A.M. , No. 03-17-00114-CV, 2018 WL 1177601, at *3 (Tex. App.—Austin Mar. 7, 2018, no pet.) (mem. op.) ; Ex parte Vega , 510 S.W.3d 544, 550–51 (Tex. App.—Corpus Christi–Edinburg 2016, no pet.) ; T.H. v. Tex. Dep't of Pub. Safety , No. 03-15-00304-CV, 2016 WL 5874869, at *3–4 (Tex. App.—Austin Oct. 6, 2016, no pet.) (mem. op.) ; Ex parte S.D. , 457 S.W.3d 168, 172 (Tex. App.—Amarillo 2015, no pet.) ; S.J. v. State , 438 S.W.3d 838, 845–46 (Tex. App.—Fort Worth 2014, no pet.) ; Tex. Dep't of Pub. Safety v. Dicken , 415 S.W.3d 476, 481 (Tex. App.—San Antonio 2013, no pet.) ; Ex parte M.G. , No. 10-13-00021-CV, 2013 WL 3972225, at *2 (Tex. App.—Waco Aug. 1, 2013, no pet.) (mem. op.).

23 Tex. Code Crim. Proc. art. 55.01(a) (emphasis added).

24 S.J. , 438 S.W.3d at 845.

25 Travis Cnty. Dist. Att'y v. M.M. , 354 S.W.3d 920, 924 n.1 (Tex. App.—Austin 2011, no pet.).

26 See Tex. Code Crim. Proc. art. 55.02(4). The language of article 55.02(4) supports the arrest-based interpretation of article 55.01(a)(2)(A), as it applies when the person "is still subject to conviction for an offense arising out of the transaction for which the person was arrested" and does not distinguish between misdemeanors and felonies. Id.

27 T.S.N. , 547 S.W.3d at 624.

"[A]n expunction proceeding is civil in nature,"²⁸ yet it is in the criminal law where the consequences of our decision will be keenly felt. An officer investigating suspicious activity will not be forewarned of the defendant's past criminal history, even when the Legislature has said it may not be expunged.

28 Id. at 619.

The result also may not be helpful to defendants charged with multiple misdemeanor offenses based on one arrest. The State routinely agrees to dismiss other charges in exchange for a guilty plea to one charge.²⁹ Such agreements qualify as "plea bargains" in the same way that an agreement to plead guilty in exchange for a determinate sentence is a plea bargain.³⁰ The Court's decision today reduces the State's incentive to reach a plea to a lesser offense or to allow pretrial diversion of a charge. If the State agrees to dismiss or divert one of multiple charges in exchange for a guilty plea and community supervision for another charge, then a properly arrested defendant is nonetheless entitled to an expunction of his arrest record. The incentive will shift to bargain offense-by-offense, limiting the potential for outright dismissal or pretrial diversion of some charges.

29 "With as much as ninety percent of all criminal cases resolved via plea agreements, charge reductions, dismissal of charges, or reduced sentences are commonplace." State v. Moore , 240 S.W.3d 248, 250 (Tex. Crim. App. 2007) (footnote omitted) (citing Brady v. United States , 397 U.S. 742, 752 n.10, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) ("It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury." Id. at 752, 90 S.Ct. 1463 (footnote omitted))).

30 "Plea bargaining is a process which implies a preconviction bargain between the State and the accused whereby the accused agrees to plead guilty or nolo contendere in exchange for a reduction in the charge, a promise of sentencing leniency, a promise of a recommendation from the prosecutor to the trial judge as to punishment, or some other concession by the prosecutor that he will not seek to have the trial judge invoke his full, maximum implementation of the conviction and sentencing authority he has," i.e., it is the process where a defendant who is accused of a particular criminal offense, and his attorney, if he has one, and the prosecutor enter into an agreement which provides that the trial on that particular charge not occur or that it will be disposed of pursuant to the agreement between the parties, subject to the approval of the trial judge. Put another way, "plea bargaining is the process by which the defendant in a criminal case relinquishes his right to go to trial in exchange for a reduction in charge and/or sentence."
Perkins v. Third Court of Appeals , 738 S.W.2d 276, 282 (Tex. Crim. App. 1987) (orig. proceeding) (quoting Milton Heumann , Plea Bargaining (1978)).

III

Had he only been charged with misdemeanor driving while intoxicated, the petitioner's arrest would meet the statutory requirements for expunction because he completed a pretrial diversion program. But the same arrest resulted in the marijuana possession charge, for which the petitioner pleaded no contest and served community supervision. This charge and resulting no-contest plea with community supervision precludes the expunction of his arrest record.

Because the Court concludes otherwise, it does not reach the second issue in this case, which is whether the trial court's nondisclosure order for the marijuana offense precluded the State from offering it as evidence in this case, in which the petitioner seeks to expunge the arrest record that formed the basis for both charges.

"While nondisclosure orders allow information regarding the offenses to be disclosed to various agencies and entities, expunction orders prohibit any use of the expunged records."³¹ Nondisclosure orders allow a person who has complied with the terms of the nondisclosure statute to refrain from publicly disclosing the charge or plea agreement on a job application or in response to another sort of inquiry into a person's criminal record. A record of charges and resulting disposition are not present in publicly available databases.

31 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, pet. denied) ; compare Tex. Gov't Code §§ 411.076, 411.0765 (providing for disclosure of records subject to order of nondisclosure to various agencies and entities), with Tex. Code Crim. Proc. art. 55.03 (prohibiting release, maintenance, dissemination, or use of expunged records and files for any purpose).

The nondisclosure statute, however, provides that a "criminal justice agency may disclose criminal history record information that is the subject of an order of nondisclosure ... under this subchapter only ... for criminal justice ... purposes."³² A criminal justice purpose means "an activity that is included in the administration of criminal justice," which in turn has the meaning article 66.001 of the Code of Criminal Procedure assigns it,³³ which includes activities that relate to "criminal identification" and the "dissemination of criminal history record information":

32 Tex. Gov't Code § 411.0765(a).

33 Id. § 411.082(4)(A); see id. § 411.071 (providing that "criminal justice purpose" has the meaning provided in section 411.082 of the Government Code ).

[T]he detection, apprehension, detention, pretrial release, post-trial release, prosecution, adjudication, correctional supervision, or rehabilitation of an offender. The term includes criminal identification activities and the collection, storage, and dissemination of criminal history record information.³⁴

34 Tex. Code Crim. Proc. art. 66.001(1).

The district court's determination to grant an expunction is related to both "criminal identification activities" and the "dissemination of criminal history record information." Thus, the State's disclosure of a conviction that is otherwise subject to a nondisclosure order is permitted in an expunction hearing. It furthers the purposes of the administration of justice to permit the district court to fully determine the bases and the consequences of the expunction of the arrest in question. The trial court thus did not err in permitting the State to disclose the marijuana possession offense that is subject to a nondisclosure order for the limited purpose of this expunction proceeding.

* * *

Ours is not to make policy. The Legislature has done so in Chapter 55, weighing the competing interests of providing a fresh start to arrestees against making records of arrests that result in plea bargains available to law enforcement. The Legislature settled on the compromise position laid out in the text of the statute. Our Court should not upend it.

The statute does not permit expunction of an arrest if, based on that arrest, the defendant pleads no contest to at least one offense that results in a deferred-adjudication plea bargain. The Court's holding that the petitioner is entitled to an expunction of his arrest stands in opposition to the statutory text. Instead, the statute expressly conditions an expunction on a determination that, among other conditions, the State did not charge the defendant with multiple criminal misdemeanors based on the arrest, or though so charged, each was dismissed for an enumerated statutory reason. Deferred-adjudication plea bargains are not included.

The court of appeals correctly held that the petitioner in this case is not entitled to an expunction of his arrest record. Because we should affirm that holding and do not, I respectfully dissent.