in the Matter of the Expunction of C.A.A. ( 2021 )

Affirmed and Memorandum Opinion filed April 1, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00785-CV
IN THE MATTER OF THE EXPUNCTION OF C.A.A.
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CV55626
MEMORANDUM OPINION
The State of Texas appeals the trial court’s order granting C.A.A.’s verified
petition for expunction.1 For the reasons below, we affirm.
BACKGROUND
Expunction Statutes
The Texas Legislature provided a statutory right to expunction in the Texas
Code of Criminal Procedure, article 55.01 (entitled “Right to Expunction”). See Ex
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This appeal was transferred to this court from the Eastland Court of Appeals pursuant to
Supreme Court of Texas Transfer Order, Misc. Docket No. 19-9091. Due to said transfer, we
must decide this case in accordance with the precedent of the Eastland Court of Appeals if our
decision otherwise would be inconsistent with that court’s precedent. See Tex. R. App. P. 41.3.
parte S.C., 305 S.W.3d 258, 260 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(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.)). In relevant part, article 55.01 states:
(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:
(1) the person is tried for the offense for which the person was
arrested and is:
(A) acquitted by the trial court[.]
Tex. Code Crim. Proc. Ann. art. 55.01(a)(1)(A). But an expunction may not be
ordered if the petitioner remains subject to prosecution for certain related offenses:
(c) 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.
Id. art. 55.01(c).
If an expunction is ordered, article 55.02 (entitled “Procedure for
Expunction”) provides that the investigating law enforcement agency and
prosecuting attorney may nonetheless retain certain records and files in certain
circumstances:
(a) If the state establishes that the person who is the subject of an
expunction order is still subject to conviction for an offense arising
out of the transaction for which the person was arrested because
the statute of limitations has not run and there is reasonable cause
to believe that the state may proceed against the person for the
offense, the court may provide in its expunction order that the law
enforcement agency and the prosecuting attorney responsible for
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investigating the offense may retain any records and files that are
necessary to the investigation.
* * *
(a-2) In the case of a person who is the subject of an expunction order
on the basis of an acquittal, the court may provide in the expunction
order that the law enforcement agency and the prosecuting attorney
retain records and files if:
(1) the records and files are necessary to conduct a subsequent
investigation and prosecution of a person other than the person
who is the subject of the expunction order; or
(2) the state establishes that the records and files are necessary for
use in:
(A) another criminal case, including a prosecution, motion to
adjudicate or revoke community supervision, parole
revocation hearing, mandatory supervision revocation
hearing, punishment hearing, or bond hearing; or
(B) a civil case, including a civil suit or suit for possession of or
access to a child.
Id. art. 55.02 § 4(a), (a-2).
Underlying Proceedings
C.A.A. was indicted for manslaughter, arrested, tried, and acquitted. After
C.A.A.’s acquittal, he filed a verified petition for expunction of his records. See id.
art. 55.01(a)(1)(A). The trial court held three hearings regarding the expunction.
At the first hearing, the State represented that it did not object to the trial
court expunging the charge for which C.A.A. was acquitted. But citing article
55.01(c), the district attorney asserted that “the State believes that there are other
charges that could arise out of the same criminal episode by which the statute of
limitations has not run.” The trial court recessed the hearing to permit the State to
investigate its potential charges against C.A.A.
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At the second hearing, the district attorney asserted she did “not object to the
expunction of the arrest or the charge” but requested that she be permitted to
maintain her “investigative file.” Referencing subsections (a) and (a-2) in article
55.02, the trial court stated as follows:
And so I can only believe that the district attorney is saying that these
files are necessary to conduct an investigation and prosecution of
someone else or they’re necessary for another criminal case in which
there is a prosecution . . . .
So if the district attorney is telling me that she is going to pursue
another prosecution of this person arising out of the same set of facts
or circumstances, then how much time do you need?
The district attorney requested two weeks’ time and the trial court recessed the
hearing on C.A.A.’s petition for expunction.
At the third hearing, the district attorney stated that, “at this point in time,
the State can announce to the Court that we do not intend on seeking additional
charges.” But the district attorney nonetheless “object[ed] to the expunction” and
reiterated that the State is “entitled to keep [its] investigative files.” Citing articles
55.01 and 55.02, the trial court rejected the State’s argument and “grant[ed] the
expunction requested.”
On July 8, 2018, the trial court signed an “Order of Expunction” in which it
ordered that “[a]ny and all records and/or files of [C.A.A.] concerning the arrest
. . . are hereby expunged.” The trial court subsequently entered the following
findings of fact and conclusions of law:
• “No evidence was presented to the Court which indicated [C.A.A.]
. . . is subject to prosecution for another offense arising from the
incident which lead [sic] to the indictment and charges . . . [for]
which [C.A.A.] was acquitted.”
• “No evidence was presented to the Court which indicated the State
[needed] to keep and maintain any records or files . . . .”
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• “There are no disputed facts concerning the right of [C.A.A.] . . . to
an expunction of all records and files relating to his arrest . . . .”
• “[C.A.A.] . . . is entitled to an expunction of all records and files
relating to his arrest . . . .”
The State timely appealed. The record presented to us does not contain any of the
documents in the State’s file.
ANALYSIS
I. Standard of Review
“A trial court’s ruling on a petition for expunction is reviewed for abuse of
discretion.” State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018) (citing Heine v. Tex.
Dep’t of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied)).
“Under the abuse of discretion standard, appellate courts afford no deference to the
trial court’s legal determinations because a court has no discretion in deciding what
the law is or in applying it to the facts.” Id. (citing In re Labatt Food Serv., L.P.,
279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding); Walker v. Packer, 827
S.W.2d 833, 840 (Tex. 1992)). “Thus, a trial court’s legal conclusions are
reviewed de novo.” Id. (citing State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996)). “Here,
the trial court’s ruling on the expunction request hinged on a question of law
because it required the interpretation of article 55.01; therefore, it is subject to de
novo review.” Id. (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26
(Tex. 2008) (stating that statutory construction is a question of law)).
II. The State’s Motion to Abate
Before analyzing the merits of the State’s appeal, we dispense with the
State’s motion to abate and remand for findings of fact and conclusions of law.
There, the State argues that we should abate this appeal and remand to the trial
court for a determination as to “whether the State’s investigative file was a ‘record
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and file relating to’” C.A.A.’s arrest. The State further suggests that the trial
court’s silence on this matter “leaves the State in a conundrum” because the latent
ambiguity presented thereby “leaves open the question of whether the State has an
appealable question.” The State argues the trial court’s rulings prevented the
“proper presentation” of this case on appeal and that we should direct the trial
court to correct its error. See Tex. R. App. P. 44.4.
We disagree. In its “Order of Expunction,” the trial court ordered that “any
and all records and/or files . . . concerning” C.A.A.’s arrest “are hereby expunged”.
The phrase “any and all” has been used by Texas courts for over 150 years and is
not ambiguous. See Hanna v. State, 426 S.W.3d 87, 97 (Tex. Crim. App. 2014);
Renow v. State, 120 S.W. 174, 178-79 (Tex. Crim. App. 1909); Cotton v. State, 32
Tex. 614, 623 (1870); Smith v. Clopton, 4 Tex. 109, 113 (1849); Langford v.
Republic of Tex., Dallam 588, 589 (Tex. 1844); and Kilgore Expl., Inc. v. Apache
Corp., No. 01-13-00347-CV, 2015 WL 505275, at *7 (Tex. App.—Houston [1st
Dist.] Feb. 5, 2015, no pet.) (mem. op.); see also Twenty-Sixth Emergency Order
Regarding COVID-19 State of Disaster, 609 S.W.3d 135, 135 (Tex. 2020).
Similarly, the words “records”, “concerning”, and “expunged” are not ambiguous.
“[T]herefore, there is nothing to be construed.” Gen. Am. Indem. Co. v. Pepper,
339 S.W.2d 660, 661 (Tex. 1960). When read together, these unambiguous words
do not spontaneously become ambiguous.
Moreover, the district attorney raised the State’s “investigative file”
argument several times at the hearings on C.A.A.’s expunction petition. Relying
on articles 55.01 and 55.02, the trial court rejected the argument and “grant[ed] the
expunction requested.” These proceedings, considered in conjunction with the
expunction order and the trial court’s findings of fact and conclusions of law, leave
no issue that requires further determination by the trial court. See Tex. R. App. P.
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44.4.
Because there is no ambiguity as to what the trial court meant in its order, a
remand is unwarranted. We therefore deny the State’s motion to abate.
III. The Trial Court’s Expunction Order
Asserting the applicable statutes “neither explicitly nor implicitly include[]
the State’s investigative file in the category of records that are to be expunged,” the
State requests that the trial court’s expunction order “be modified to exclude the
State’s investigative file.”
As we outlined above, article 55.02 section 4(a) and (a-2) provide the
circumstances under which a law enforcement agency or prosecuting attorney may
seek to exclude investigative records and files from a trial court’s expunction
order. See Tex. Code Crim. Proc. Ann. art. 55.02 § 4(a), (a-2). Under subsection
(a), the law enforcement agency and prosecuting attorney may retain “any records
and files that are necessary to the investigation” if the State establishes that the
person subject to the expunction order (1) is still subject to a conviction for an
offense arising out of the underlying transaction, and (2) there is reasonable cause
to believe the State may proceed against the person for that offense. Id. art. 55.02
§ 4(a). And under subsection (a-2), a law enforcement agency or prosecuting
attorney may retain “records and files” if (1) the files are necessary to conduct a
subsequent criminal investigation of another person, or (2) the State establishes the
files are necessary for use in another criminal or civil case. Id. art. 55.02 § 4(a-2).
At the hearings held on C.A.A.’s expunction petition, the trial court provided
the district attorney with two opportunities to make the showing necessary to
warrant the retention of records and files under these subsections. In its findings of
fact and conclusions of law, the trial court found:
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• “No evidence was presented to the Court which indicated
[C.A.A.] . . . is subject to prosecution for another offense
arising from the incident which lead [sic] to the indictment and
charges . . . [for] which [C.A.A.] was acquitted.”
• “No evidence was presented to the Court which indicated the
State [needed] to keep and maintain any records or files . . . .”
The record supports these findings. The district attorney did not produce any
evidence to support her request to maintain her investigative file; similarly, the
district attorney did not produce any of the specific records or files she sought to
retain. Accordingly, the district attorney did not make the showing necessary to
retain any records or files under article 55.02 section 4(a) and (a-2). See id. art.
55.02 § 4(a), (a-2).
Contending that it is not required to expunge its “investigative reports,” the
State argues that an expunction under article 55.01(a) applies only to those
“records and files relating to the arrest.” See id. art. 55.01(a). The State cites Ex
parte S.C., 305 S.W.3d 258 (Tex. App.—Houston [14th Dist.] 2009, no pet.), to
support this contention.
But this argument ignores that article 55.02 sets forth the specific procedures
applicable when, as here, the prosecuting attorney or law enforcement agency
seeks to exclude investigative records and files from an expunction order. See Tex.
Code Crim. Proc. Ann. art. 55.02 § 4(a), (a-2); see also Ex parte Aiken, 766
S.W.2d 580, 581-82 (Tex. App.—Dallas 1989, no writ) (noting that “the conditions
of article 55.02 of the Texas Code of Criminal Procedure” constitute “an exception
to the complete expunction of arrest records authorized by article 55.01”).
Moreover, our decision in Ex parte S.C. did not analyze (1) article 55.02’s
provisions, or (2) a request from a prosecuting attorney or a law enforcement
agency to exclude certain records or files from an expunction order. Therefore, Ex
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parte S.C. does not govern our analysis under the set of facts before us.
The record supports the trial court’s findings that the district attorney did not
make the showing necessary to retain records or files under article 55.02.
Therefore, the trial court did not err by ordering that “[a]ny and all records and/or
files of [C.A.A.] concerning the arrest . . . are hereby expunged.” We overrule the
State’s issue on appeal.
CONCLUSION
We affirm the trial court’s July 8, 2018 “Order of Expunction.”
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Christopher and Justices Wise and Hassan.
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