law-expunction
08‑1014 IN THE MATTER OF THE EXPUNCTION OF E.R.W.; from Pecos County; 8th district
(08‑07‑00067‑CV, ___ SW3d ___, 10‑23‑08)(expunction, capital murder conviction overturned)
The right to expunction is a statutory privilege. In re Expunction of C.V., 214 S.W.3d 43, 44 (Tex.App.--El
Paso 2006, no pet.). The statute gives people the opportunity to have all records of an arrest expunged
provided certain requirements are met. Id.; Tex.Code Crim.Proc.Ann. art. 55.01 (Vernon 2006). All provisions
in a statutory cause of action are mandatory and exclusive and all conditions must be met before a person is
entitled to expunction. In re C.V., 214 S.W.3d at 44. A statutory expunction proceeding is civil rather than
criminal in nature, and the petitioner bears the burden of proving compliance with the statute. Id. Article
55.01 provides, in pertinent part
(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:
. . .
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented
against the person for an offense arising out of the transaction for which the person was arrested or, if an
indictment or information charging the person with commission of a felony was presented, the indictment or
information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article
55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had
been made because of mistake, false information, or other similar reason indicating absence of probable
cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) 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 Article 42.12 for any offense
other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex.Code Crim.Proc.Ann. art. 55.01(a)(2).
08-1014 IN THE MATTER OF THE EXPUNCTION OF E.R.W.; from Pecos County; 8th district
(08-07-00067-CV, ___ SW3d ___, 10-23-08)
The right to expunction is a statutory privilege. In re Expunction of C.V., 214 S.W.3d 43, 44 (Tex.App.--El
Paso 2006, no pet.). The statute gives people the opportunity to have all records of an arrest expunged
provided certain requirements are met. Id.; Tex.Code Crim.Proc.Ann. art. 55.01 (Vernon 2006). All provisions
in a statutory cause of action are mandatory and exclusive and all conditions must be met before a person is
entitled to expunction. In re C.V., 214 S.W.3d at 44. A statutory expunction proceeding is civil rather than
criminal in nature, and the petitioner bears the burden of proving compliance with the statute. Id. Article
55.01 provides, in pertinent part:
(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:
. . .
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented
against the person for an offense arising out of the transaction for which the person was arrested or, if an
indictment or information charging the person with commission of a felony was presented, the indictment or
information has been dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article
55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had
been made because of mistake, false information, or other similar reason indicating absence of probable
cause at the time of the dismissal to believe the person committed the offense or because it was void;
(B) 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 Article 42.12 for any offense
other than a Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex.Code Crim.Proc.Ann. art. 55.01(a)(2).
08-0407
PAIGE LOUIS BENNER A/K/A PAGE LOUIS MOLISH v. THE STATE OF TEXAS; from Tarrant County; 2nd
district
(02-07-00271-CV, ___ SW3d ___, 05-01-08, pet denied Aug. 2008)(denial of expunction)
Appellant Paige Louis Benner a/k/a Paige Louis Molish appeals the trial court=s order denying his request
for an expunction. In two issues, appellant argues that the trial court erred by not holding a hearing on his
motion for expunction and by not granting him an expunction. We affirm.
In his second issue, appellant argues that the trial court erred by denying his motion for expunction. The
State, however, argues that expunction is prohibited under article 55.01(c), which provides that the trial court
may not expunge an arrest or charged offense, even if it resulted in an acquittal, if the offense arose out of
one criminal episode, and the defendant was convicted of or remains subject to prosecution for at least one
other offense occurring during the same criminal episode.[2] Tex. Code Crim. Proc. Ann. art. 55.01(c);
Addicks v. State, No. 03-06-00114-CV, 2007 WL 844872, at *2 (Tex. App.- Austin Mar. 21, 2007, no pet.)
(mem. op., not designated for publication).
Here, appellant was arrested for, but not charged with, kidnaping. In his subsequent trial for burglary with
the intent to commit kidnaping, which was one count in the indictment, the jury found appellant not guilty of
that offense and instead convicted him for the offense of aggravated assault with a deadly weapon.
Because the kidnaping arrest, the subsequent charge of burglary with intent to commit kidnaping, and the
conviction for the offense of aggravated assault with a deadly weapon arose from the same facts and thus
the same criminal episode, article 55.01(c) bars an expunction under these circumstances. See Tex. Code
Crim. Proc. Ann. art. 55.01(c); Addicks, 2007 WL 844872, at *2. Because appellant did not meet his burden
to show that he is entitled to an expunction under article 55.01, the trial court did not abuse its discretion in
refusing his request for an expunction. See Tex. Code Crim. Proc. Ann. art. 55.01(c). We overrule
appellant=s second issue.
08-0455
EX PARTE GARY HAMPTON; from Dallas County; 5th district (05-07-00523-CV, ___ SW3d ___, 03-26-08,
pet. denied Sp. 208) (expunction denied)
The right to expunction is neither a common law nor a constitutional right; rather, it exists as a statutory
privilege which is granted and can be limited by the Legislature. Bargas v. State, 164 S.W.3d 763, 771 (Tex.
App.-Corpus Christi 2005, no pet.); McCarroll v. Tex. Dep't of Pub. Safety, 86 S.W.3d 376, 378 (Tex. App.-
Fort Worth 2002, no pet.). Under article 55.01 of the Texas Code of Criminal Procedure, a person who has
been placed under a custodial or noncustodial arrest for commission of a felony or misdemeanor offense is
entitled to have all records and files relating to the arrest expunged if the person meets certain statutory
requirements. See Tex. Code Crim. Proc. Ann. art. 55.01(a) (Vernon 2006). A statutory expunction
proceeding is civil rather than criminal in nature, and the burden of proving compliance with the statutory
conditions rests with the petitioner. Houston Police Dep't v. Berkowitz, 95 S.W.3d 457, 460 (Tex. App.-
Houston [1st Dist.] 2002, pet. denied). All of the statutory provisions are mandatory and exclusive, and a
person is entitled to expunction only when all statutory conditions have been met. In re Wilson, 932 S.W.2d
263, 266 (Tex. App.-El Paso 1996, no writ).
Here, appellant has not met his burden of showing he met the statutory conditions for expunction of the
records that relate to his convictions. Appellant was neither acquitted by the trial court nor convicted and
subsequently pardoned. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(1). Further, the indictments were
neither quashed nor dismissed. See id. art. 55.01(a)(2). Appellant, who pleaded guilty to felony forgery in
trial court cause number C74-5289-PQ and was found guilty of felony forgery in trial court cause numbers
F83-10873-R and F83-10874-R, and was sentenced to imprisonment in each case, is not entitled to obtain
any relief under the expungement statute as a matter of law. See Harris County Dist. Attorney's Office v. D.W.
B., 860 S.W.2d 719, 721 (Tex. App.-Houston [1st Dist.] 1993, no writ). Therefore, the trial court did not err in
granting the State's motion for summary judgment.