THE STATE OF TEXAS v. J.P., Appellee (2025)

MAJORITY OPINION

Affirmed in Part and Reversed and Rendered in Part and Majority and Dissenting Opinions filed May 22, 2025.

Appellant the State of Texas (“the State”) appeals an expunction order granted in favor of appellee, J.P. In one issue, the State argues the trial court abused its discretion by not including in the order a statutory exception that allows the State to retain records when the records are needed for the subsequent investigation and prosecution of another person. We reverse the portion of the trial court's order providing that the exception sought by the State does not apply and render judgment providing that the exception applies and including it in the order. We otherwise affirm the remainder of the order.

I. BACKGROUND

J.P. was charged for the offense of murder, tried before a jury of his peers, and acquitted. See Tex. Code Crim. Proc. Ann. art. 55.02, § 1 (“On acquittal, the trial court shall advise the acquitted person of the right to expunction.”). On June 27, 2023, J.P. filed a request for expunction of the records and files relating to his arrest for the offense. The request noted the case was set for July 17, 2023.

On July 17, 2023, the trial court signed an expunction order ordering the destruction of all files and records of J.P.'s arrest. See id. art. 55.01(a)(1)(A); see also id. art. 55.02, § 1 (providing that the trial court shall grant an expunction to an acquitted defendant “[a]t the request of the acquitted person and after notice to the state ․”). The order noted the two statutory exceptions that allow the State to keep the records: (1) for subsequent investigation and prosecution of another individual; and (2) for use in another civil and/or criminal case, but only if the State establishes they are needed for use in such a case. See id. art. 55.02, § 4(a-2)(1)–(2).¹ The order provided both exceptions were not applicable ² and that the State had been notified of J.P.'s request for an expunction.

After the State received a second statutory notice sent by the trial court's clerk when the clerk was processing the expunction order, the State objected to the actions by responding to the clerk's email on July 20, 2023, and stating that “[t]his one will need a correction, please hold off.” See id. 55.02. § 5(d-1) (“Not later than then 30th day before the date on which the clerk destroys files or other records ․, the clerk shall provide notice by mail, electronic mail, or facsimile transmission to the attorney representing the state in the expunction proceeding. If the attorney representing the state in the expunction proceeding objects to the destruction not later than the 20th day after receiving notice under this subsection, the clerk may not destroy the files or other records until the first anniversary of the date the order of expunction is issued or the first business day after that date.”). The State then filed a motion for new trial, arguing that the expunction order should be withdrawn and a new trial granted because a codefendant had not sought an expunction. The State attached to its motion copies of J.P.'s indictment, the judgment of acquittal, the trial court's order of expunction, and an indictment against Latoya Samuel (“Samuel”) for injury to a child by omission. The indictments for J.P. and Samuel reference the same complainant, the same date for the offenses, the same agency, the same “O/R NO,” and the same “DA NO.”

At the hearing on the State's motion, the State argued that Samuel had been charged as a codefendant and that Samuel did not satisfy the requisites to qualify for an expunction. The State also informed the trial court that the charge against Samuel had been dismissed. The trial court then noted that the State had signed an immunity order concerning Samuel.³ After argument and discussion between the attorneys and the trial court, the trial court inquired again from the State:

[Trial court]: But you can't tell me if you all or somebody is actually investigating Ms. Samuel or planning on doing so?

[The State]: No, I can't tell you that.

[Trial Court]: Or anyone other than [J.P.]?

[The State]: I can't tell you that. No.

The trial court denied the State's motion for new trial, and this appeal followed.

II. DISCUSSION

In one issue, the State argues the trial court abused its discretion by not including an exception in the expunction order allowing for the State to retain the records because the records were needed for the subsequent prosecution and investigation of a person other than J.P.

A. STANDARD OF REVIEW

We review a trial court's ruling on a motion for new trial and a petition for expunction for an abuse of discretion. See State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018); Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam).

We review questions of statutory interpretation de novo. Pedernal Energy, LLC. v. Bruington Eng'g, Ltd., 536 S.W.3d 487, 491 (Tex. 2017); Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). Our primary objective in construing statutes is to give effect to the Legislature's intent. Molinet, 356 S.W.3d at 411. The plain meaning of the text is the best expression of legislative intent. Id. We read statutes contextually to give effect to every word, clause, and sentence because every word or phrase is presumed to have been intentionally used with a meaning and a purpose. Fort Worth Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 838 (Tex. 2018); see Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam) (“We presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted.”).

B. APPLICABLE LAW

Texas Code of Criminal Procedure article 55.01 provides for the necessary prerequisites for the right to expunction. See Tex. Code Crim. Proc. Ann. art. 55.01 (titled “Right to Expunction”); T.S.N., 547 S.W.3d at 618 (“[A]rticle 55.01 contains the requirements for expunction of criminal records.”). In relevant part, it provides that a person “is entitled to have all records and files relating to an arrest expunged” if the person is acquitted of the crime. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(1)(A); T.S.N., 547 S.W.3d at 618 (“Article 55.01(a)(1)(A) entitles [petitioner] to expunction of all records and files relating to her arrest for the ․ charge for which she was tried and acquitted.”); see also Ex parte E.H., 602 S.W.3d 486, 489 (Tex. 2020) (“An expunction order requires governmental agencies to return, remove, delete, or destroy all records of a person's arrest and generally permits the person to deny the occurrence of the arrest and the existence of the expunction order.”).

Texas Code of Criminal Procedure article 55.02 provides the procedure for expunction. See Tex. Code Crim. Proc. Ann. art. 55.02 (titled “Procedure for Expunction”).

At the request of the acquitted person and after notice to the state ․, the trial court presiding over the case in which the person was acquitted, if the trial court is a district court, a justice court, or a municipal court of record, or a district court in the county in which the trial court is located shall enter an order of expunction for a person entitled to expunction under Article 55.01(a)(1)(A) not later than the 30th day after the date of the acquittal.

Id. art. 55.02, § 1; see also id. art. 55.01(a)(1)(A). If a person is subject to an expunction order as a result of an acquittal, then “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 other than the person who is subject to the expunction order ․” Id. art. 55.02, § 4(a-2)(1) (emphasis added).

A person entitled to expunction pursuant to an acquittal may file an ex parte petition for expunction in the district court. See id. art. 55.02, § 2(a). If the court finds that the petitioner for whom an ex parte petition is filed is entitled to expunction, then the trial court shall enter an expunction order. Id. art. 55.02, § 2(d). The person who is the subject of the expunction order or an agency protesting the expunction may appeal the court's decision in the same manner as in other civil cases. Id. art. 55.02, § 3(a).

C. ANALYSIS

The State argues the trial court abused its discretion by not including an exception in the expunction order allowing for the retention of the records as the records were needed for the subsequent investigation and prosecution of a person other than J.P.

The exception sought by the State is present in article 55.02, § 4(a-2)(1). This subsection states that the trial court “may” provide in the expunction order that the law enforcement agency and the prosecuting attorney retain records and files if the records and files are necessary to conduct a subsequent investigation and prosecution other than the person who is subject to the expunction order. Id. art. 55.02, § 4(a-2)(1).⁴ Thus, the expunction statute grants the trial court discretionary authority in deciding whether to include the exception sought by the State. See HouseCanary, Inc. v. Title Source, Inc., 622 S.W.3d 254, 260 (Tex. 2021) (“[T]he statute's use of the discretionary ‘may’ indicates that the trial court has discretion to choose the appropriate provision(s).”); In re Doe, 19 S.W.3d 249, 253 (Tex. 2000) (“The abuse of discretion standard applies when a trial court has discretion either to grant or deny relief based on its factual determinations.”); Ford v. State, 305 S.W.3d 530, 539 (Tex. Crim. App. 2009) (holding that “may” in Texas Code of Criminal Procedure article 28.01 indicated that the decision was “suggested, but did not require”). A trial court's exercise of its discretion must not be unreasonable or arbitrary. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 212 (Tex. 2009) (orig. proceeding); In re Pirelli Tire, L.L.C., 247 S.W.3d 670, 676 (Tex. 2007) (orig. proceeding); see also Womack v. Berry, 156 Tex. 44, 51 (1956) (“The use of the permissive word ‘may’ imports the exercise of discretion in such matters. But the court is not vested with unlimited discretion, and is required to exercise a sound and legal discretion within the limits created by the circumstances of the particular case.”).

To preserve a complaint for appellate review, the record must show that (1) the complaint was presented to the trial court by a timely, request, objection, or motion stating the specific grounds for the desired rulings if the specific grounds are not apparent from the context and (2) the trial court ruled on the request. Tex. R. App. P. 33.1(a). To be considered timely, the request, objection, or motion generally must be made at the earliest possible opportunity, thereby allowing the trial court an opportunity to cure the error. Gabel v. Gabel-Koehne, 649 S.W.3d 590, 596 (Tex. App.—Houston [1st Dist.] 2022, no pet.).

The record shows that J.P.'s request for expunction was filed ex parte on June 27, 2022; that it was set for a final hearing twenty days later on July 17, 2023 ⁵ ; and that the State received notice of J.P.'s petition for expunction. The trial court's docket sheet notes that J.P.'s expunction request was on its docket “in error” at an ex parte hearing on July 17, 2023, and that the trial court granted the expunction at that hearing. See Tex. Code Crim. Proc. Ann. art. 55.02, § 2(d). The State then filed its motion for new trial on August 7, 2023, and it was the State's first opportunity to challenge J.P.'s expunction request and the trial court's expunction order. Accordingly, we conclude that the State's objection to the expunction order in its motion for new trial was timely and preserved its complaint for this appeal. See Gabel, 649 S.W.3d at 597–98 (“Given the facts of this case, we conclude that this ground asserted in the motion for new trial was sufficient to preserve Haden's complaint because it was his first opportunity to complain about the trial court's failure to make a record of the interview with R.T.G. and the failure to offer Haden an opportunity to rebut or otherwise address R.T.G.'s testimony before the trial court ․”); see also Univ. of Tex. Med. Sch. at Hous. v. Than, 834 S.W.2d 425, 435 (Tex. App.—Houston [1st Dist.] 1992, no writ) (Dunn, J., dissenting) (“ ‘Ex parte’ means an act which is done ‘without notice to, or contestation by, any person adversely interested.” (citing Black's Law Dictionary (5th ed. 1979)).

Here, the State attached to its motion for new trial a copy of Samuel's indictment and argued to the trial court that it needed the records to investigate and prosecute Samuel or another individual. It is also undisputed that no individual has been convicted for the death of a child underpinning the criminal charges against J.P. and Samuel. Under these circumstances, we hold that the trial court acted unreasonably when it denied the exception sought by the State. See Tex. Code Crim. Proc. Ann. art. 55.02, § 4(a-2)(1); see also In re R.A., 417 S.W.3d 569, 578–79 (Tex. App.—El Paso 2013, no pet.) (concluding that trial court did not abuse its discretion by including exception in the expunction order allowing for the retention of records because there was evidence the preservation of the records was needed for “ongoing contempt proceeding and grievances against R.A.'s attorney, grievances against the prosecutors involved in the criminal trial, and a separate expunction proceeding pending in the 346th District Court of El Paso County”).

We note that (1) the State informed the trial court that Samuel's indictment had been dismissed, and (2) the trial court was aware that Samuel had signed an immunity agreement. However, there is nothing in the record indicating that the State was prevented from re-filing the charges against Samuel, and it is undisputed that the child's death remains unsolved. See Smith v. State, 70 S.W.3d 848, 851 (Tex. Crim. App. 2002) (“In the appellant's case, the trial court approved the dismissal order, but did not signify that it approved the immunity agreement separately from its approval of the dismissal.”); Graham v. State, 994 S.W.2d 651, 654 (Tex. Crim. App. 1999) (“Conceptually, ․ a grant of immunity from prosecution should be thought of as a prosecutorial promise to dismiss the case.”); Ex Parte Williams, 379 S.W.2d 911, 912 (Tex. Crim. App. 1964) (“The dismissal of an indictment does not prevent the grand jury from returning a subsequent indictment charging the same transaction.”); Foyt v. State, 602 S.W.3d 23, 41 & n.6 (Tex. App.—Houston [14th Dist.] 2020, pet. ref'd) (“But Chevy was not given immunity from prosecution for tampering with evidence, otherwise known as transaction immunity. He was given use immunity—meaning that his testimony elicited during appellant's trial could not be used against him in another proceeding.”). Accordingly, we conclude that the trial court's decision to not include the exception sought by the State was unreasonable and thus an abuse of discretion. See Tex. Code Crim. Proc. Ann. art. 55.02, § 4(a-2)(1); T.S.N., 547 S.W.3d at 620; In re Columbia Med. Ctr., 290 S.W.3d at 212; In re R.A., 417 S.W.3d at 578–79. Finally, we note that the statute requires that the law enforcement agency and the prosecuting agency redact any portions of the retained records that identify J.P. See Tex. Code Crim. Proc. Ann. art. 55.02, § 5(a)(1); Ex Parte R.P.G.P., 623 S.W.3d 313, 321 (Tex. 2021) (“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.”); T.S.N., 547 S.W.3d at 624 (noting that article 55.02, § 5 “explains that when an official or agency or other governmental entity named in the expunction order is unable to practically return all of the records and files subject to the order, obliteration (i.e., redaction) is required as to those portions of the record or file that identify the individual”).

The dissent suggests that the record does not support a conclusion that the trial court abused its discretion, noting that the trial court presided over J.P.'s criminal trial and therefore was able to judge the credibility of the witnesses and hear the legal arguments of counsel. While we acknowledge that the trial court was familiar with the underlying proceedings against J.P. specifically, the record before us does not reasonably support the inference that the denial of the State's exception was based on evidence from J.P.'s criminal trial. The record does not include any such evidence. See Marathon Corp. v. Pitzner, 106 S.W.3d 724, 728 (Tex. 2003) (per curiam) (“[A]n inference stacked only on other inferences is not legally sufficient evidence.”); Alarcon v. Alcolac Inc., 488 S.W.3d 813, 820–21 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“An inference is not reasonable if it is premised on mere suspicion, as ‘some suspicion linked to other suspicion produces only more suspicion, which is not the same as some evidence.’ ”). More importantly, it is undisputed that a grand jury found probable cause as to Samuel, who was also charged in connection with the same events involving the same complainant as J.P. As noted above, there is nothing in the record that supports a finding that Samuel is not subject to prosecution in the future. The trial court's discretion is not unlimited, and there is at least some evidence here that the records sought to be expunged are needed for the subsequent prosecution of another individual. Finally, we note that it is not in the public interest for a trial court to arbitrarily or unreasonably eliminate potentially critical evidence relevant and necessary for a prosecution of an individual previously indicted and still subject to prosecution for an unsolved and unadjudicated crime.

We sustain the State's sole issue.

III. CONCLUSION

We reverse the portion of the trial court's order providing that the exception sought by the State does not apply and render judgment providing that the exception applies and including it in the order. We otherwise affirm the remainder of the order.

FOOTNOTES

1.   Effective January 1, 2025, the Legislature repealed Chapter 55 of the Code of Criminal, which governed the expunction of criminal records, and enacted Chapter 55A of the Code of Criminal Procedure as part of a non-substantive revision. See Tex. Code Crim. Proc. Ann. ch. 55 repealed by Act of May 19, 2023, 88th Leg. R.S., ch. 765, §§ 3.001(6), 4.001–.002, 2023 Tex. Gen Laws 1837, 1928 (codified at Tex. Code Crim. Proc. Ann. ch. 55A). Because the trial court granted J.P.'s petition for expunction prior to January 1, 2025, the citations in this opinion refer to the prior applicable articles in Chapter 55. See Act of May 19, 2023, 88th Leg. R.S., ch. 765, §§ 3.001(6), 4.001–.002, 2023 Tex. Gen Laws 1837, 1928; Tex. Gov't Code Ann. §§ 311.002, 311.031(a); Quick v. City of Austin, 7 S.W.3d 109, 128–30 (Tex. 1998). The language regarding a person who is the subject of an expunction order on the basis of an acquittal and the applicable exception is unchanged in the non-substantive recodification. See Tex. Code Crim. Proc. Ann. 55A.302.

2.   The trial court's order contains language providing for the exception sought by the State and includes two boxes providing that the exception “applies” or “does not apply.” The trial court's order checked the boxes providing that the exceptions did not apply.

3.   This immunity order does not appear in the record on appeal.

4.   The State does not argue that the trial court abused its discretion because of article 55.02, § 4(a-2)(2), which provides the trial court “may” include the exception in the order if “the state establishes that the records and files are necessary for use in” another civil or criminal case. See Tex. Code Crim. Proc. Ann. art. 55.02, § 4(a-2)(2).

5.   The expunction statute provides that the trial court “shall set a hearing on the [ex parte petition] no sooner than thirty days from the filing of the petition and shall give to each official or agency or other governmental entity named in the petition reasonable notice of the hearing ․” Tex. Code Crim. Proc. Ann. art. 55.02, § 2(c) (emphasis added). The State does not present any argument on appeal based on this subsection. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (“Errors other than lack of jurisdiction, such as a ‘court's action contrary to a statute or statutory equivalent,’ merely render the judgment voidable so that it may be ‘corrected through the ordinary appellate process or other proper proceedings.’ ” (quoting Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1999) (per curiam))).

Brad Hart Justice