Texas Department of Public Safety v. Timothy Dicken
2013 Tex. App. LEXIS 12281
| Tex. App. | 2013Background
- On June 5, 2009, Timothy Dicken was arrested for felony possession of a controlled substance and misdemeanor DWI; separate charging instruments were filed for each offense.
- Dicken pleaded no contest to the DWI on August 13, 2009, received probation and related conditions; plea documents show the felony possession count was taken into consideration at sentencing and was dismissed thereafter.
- On July 6, 2012, Dicken petitioned to expunge records relating to the felony possession charge under Tex. Code Crim. Proc. art. 55.01(a)(2).
- The Texas Department of Public Safety and the Bexar County DA opposed expunction, arguing the arrest-based statute prohibits expunging records where a related offense resulted in court-ordered community supervision or was considered in sentencing.
- The trial court granted expunction for the felony possession records; DPS appealed.
- The court of appeals reviewed statutory interpretation de novo and considered prior Texas authority construing article 55.01 as arrest-based, not offense-by-offense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether article 55.01 permits expunging records of an individual offense arising from an arrest | Dicken: statute is offense-based; dismissed felony possession may be individually expunged | DPS: statute is arrest-based; cannot expunge records where another charge from same arrest resulted in community supervision or was considered in sentencing | Held: statute is arrest-based; Dicken failed to show compliance with art. 55.01(a)(2), so expunction denied |
| Whether Dicken proved the felony charge was dismissed and not subject to court-ordered community supervision | Dicken: argues the possession charge was dismissed | DPS: plea documents show possession was taken into consideration and no court-ordered dismissal appears in the record | Held: Dicken failed to prove a dismissal separate from the plea consideration; did not meet statutory proof requirement |
Key Cases Cited
- Harris Cnty. Dist. Attorney’s Office v. J.T.S., 807 S.W.2d 572 (Tex. 1991) (expunction statute intended to address wrongful arrests; not to allow expungement after plea and probation)
- Travis County Dist. Attorney v. M.M., 354 S.W.3d 920 (Tex. App.—Austin 2011, no pet.) (statute expunges records relating to an arrest, not individual charges arising from that arrest)
- Ex parte Green, 373 S.W.3d 111 (Tex. App.—San Antonio 2012, no pet.) (expunction is statutory, civil, and requires strict compliance with article 55.01)