in Re Expunction
2015 Tex. App. LEXIS 4133
| Tex. App. | 2015Background
- Philip Cassidy was arrested on Oct. 6, 2011, and charged with indecency with a child (attempt, a felony); later he pleaded nolo contendere to a misdemeanor assault causing bodily injury in exchange for dismissal of the felony.
- In Aug. 2013 Cassidy petitioned for expunction of all records related to the Oct. 6, 2011 arrest under Tex. Code Crim. Proc. art. 55.01(a)(2).
- The State (Galveston County DA and DPS) opposed; the trial court granted expunction and the State appealed.
- The primary legal question was whether Article 55.01 permits expunction on a per-charge basis or only on an entire-arrest basis when multiple charges arise from the same arrest/transaction.
- The trial court made no separate findings; the court of appeals reviewed legal conclusions de novo and evidentiary matters for abuse of discretion.
- The court concluded Cassidy could not satisfy Article 55.01(a)(2): he had been presented an indictment/information and his nolo contendere plea to the misdemeanor negated claims that the felony was dismissed for lack of probable cause; the felony (indeed an attempted indecency with a child) is not time-barred.
Issues
| Issue | Cassidy's Argument | State's Argument | Held |
|---|---|---|---|
| Whether expunction applies per-arrest or per-offense | Ex parte E.E.H. and prior precedent permit expunction of individual charges arising from one arrest | Article 55.01, as amended, treats an arrest as the unit of expunction; expunction requires satisfying statutory criteria as to all charges from that arrest | Held: Article 55.01 is arrest-based; petitioner must show the entire arrest is subject to expunction |
| Whether Cassidy was arrested twice (separate arrest for misdemeanor) | Cassidy: plea appearance constituted a separate arrest, so misdemeanor not part of Oct. 6 arrest | State: record shows misdemeanor was part of plea bargain tied to the Oct. 6 arrest | Held: no evidence of a separate arrest; evidence (Cassidy’s admissions) shows misdemeanor arose from same arrest |
| Whether misdemeanor is a lesser-included offense of the felony (relevance) | Cassidy: assault is not lesser-included of indecency; therefore expunction may be available for felony | State argued lesser-included at trial but did not press on appeal | Held: issue irrelevant — Article 55.01 focuses on charges, dispositions, and timing, not lesser-included relationships |
| Whether Cassidy met Article 55.01(a)(2) requirements (indictment/information or statute of limitations) | Cassidy: argued entitlement to expunction (claimed factors supporting expunction) | State: Cassidy admitted an indictment was presented; nolo contendere plea shows dismissal not for lack of probable cause; indecency with a child is not time-barred | Held: Cassidy failed both prongs — judicial admission that indictment was presented and his nolo plea foreclose (a)(2)(A); indecency with a child is not subject to limitations, so (a)(2)(B) fails — expunction denied |
Key Cases Cited
- Ex parte E.E.H., 869 S.W.2d 496 (Tex. App.—Houston [1st Dist.] 1993) (earlier precedent permitting per-charge expunction under prior statutory scheme)
- State v. Knight, 813 S.W.2d 210 (Tex. App.—Houston [14th Dist.] 1991) (allowing expunction of one offense among several arising from same arrest under prior law)
- Tex. Dep’t of Pub. Safety v. Dicken, 415 S.W.3d 476 (Tex. App.—San Antonio 2013) (interpreting current Article 55.01 to require an arrest-based approach)
- Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (inference-drawing rule when trial court issues no separate findings)