The Texas Department of Public Safety (DPS) challenges the district court’s Order expunging the records regarding D.M.S.’s arrest for misdemeanor possession of marijuana (POM) under Article 55.01(a)(2) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 55.01. In two related issues, DPS contends that the district court misinterpreted the relevant portion of the expunction statute and that, as a result, the evidence is legally insufficient to show that D.M.S is entitled to expunction of the POM offense. We hold that when a charge for an offense is unadjudicated but considered in the sentencing for another offense, pursuant to Section 12.45 of the Penal Code, the charge has not “resulted in a final conviction” for purposes of expunction under Article 55.01(a)(2). Consequently, we affirm the district court’s order. BACKGROUND In December 2016, D.M.S. was arrested for multiple offenses. As relevant here, D.M.S. pleaded guilty to misdemeanor assault with bodily injury. See Tex. Penal Code § 22.01(a)(1), (b). As part of the plea agreement, D.M.S. admitted guilt to two unadjudicated offenses pursuant to Section 12.45 of the Penal Code, which allows for the consideration of admitted but unadjudicated offenses in the sentencing of an adjudicated offense and then, in exchange, bars prosecution for the unadjudicated offenses. As relevant here, D.M.S. admitted guilt to a misdemeanor POM offense, see Tex. Health & Safety Code § 481.121(a), (b)(1), which was part of the same December 2016 arrest as the misdemeanor assault offense. Pursuant to the plea agreement, the trial court sentenced D.M.S. to one year confinement in May 2017 for the misdemeanor assault conviction. In June 2021, D.M.S. filed a petition for the expunction of records relating to the December 2016 arrest as well as other arrests that are not at issue in this case. As relevant here, D.M.S. petitioned for expunction of records related to the unadjudicated POM offense. After a hearing, the trial court signed an Order for Expunction, which included granting D.M.S.’s requested expunction of records related to the POM offense. DPS appeals that portion of the Order. STANDARD OF REVIEW We review a trial court’s expunction order for abuse of discretion, but we review the meaning of a statute, which is a question of law, de novo. Ex parte R.P.G.P., 623 S.W.3d 313, 317 (Tex. 2021). We begin our analysis with the plain language of the statute read in context and analyze the statute “as a cohesive, contextual whole with the goal of effectuating the Legislature’s intent, which we presume is a just and reasonable result.” Id. (cleaned up). RELEVANT STATUTES This case focuses on the relationship between two statutory schemes. Section 12.45 of the Penal Code provides a procedure in which a defendant may admit to unadjudicated offenses and have them considered as part of the sentencing of an adjudicated offense, which then bars prosecution of the unadjudicated offenses. Specifically, it provides: (a) A person may, with the consent of the attorney for the state, admit during the sentencing hearing his guilt of one or more unadjudicated offenses and request the court to take each into account in determining sentence for the offense or offenses of which he stands adjudged guilty. . . . . (c) If a court lawfully takes into account an admitted offense, prosecution is barred for that offense. Tex. Penal Code § 12.45 (“Admission of Unadjudicated Offense”). Chapter 55 of the Code of Criminal Procedure provides the procedure for the expunction of arrest records and files in certain specified situations. See Tex. Code Crim. Proc. arts. 55.01-.06. Expunction of arrest records is a remedy that is a statutorily defined privilege and is neither a constitutional nor a common-law right. Ex parte R.P.G.P., 623 S.W.3d at 316. Thus, “the statutory requirements are mandatory and exclusive and cannot be equitably expanded by the courts.” Id. As relevant here, Article 55.01 of the Code of Criminal Procedure provides the following expunction scheme: (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) 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 Chapter 42A for the offense, unless the offense is a Class C misdemeanor, provided that [certain disjunctively stated conditions are satisfied, one being that]: . . . . (B) prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired. Tex. Code Crim. Proc. art. 55.01. DISCUSSION DPS contends that D.M.S.’s POM offense is not eligible for expunction because it “resulted in a final conviction” when it was considered as part of sentencing for the misdemeanor assault conviction.[1] See Tex. Code Crim. Proc. art. 55.01(a)(2)(B) (providing avenue of expunction when arrest “has not resulted in a final conviction” and “the limitations period has expired”). As a preliminary matter, it is not disputed by the parties that the consideration of the POM offense pursuant to Section 12.45 does not “result[] in a final conviction” for the POM offense. See id.; Travis Cnty. Attorney v. J.S.H., 37 S.W.3d 163, 167 (Tex.App.—Austin 2001, no pet.), declined to follow by Texas Dep’t of Pub. Safety v. G.B.E., 459 S.W.3d 622, 630 (Tex.App.— Austin 2014, pet. denied), abrogated by Ex parte R.P.G.P., 623 S.W.3d 313 (Tex. 2021) (holding that “‘final conviction,’ as that term is used in article 55.01(a)(2)(B) of the Code of Criminal Procedure,” does not apply to “admitted unadjudicated offenses considered by the trial courts in assessing appellants’ punishments for adjudicated offenses”);[2] see also Ex parte Karlson, 282 S.W.3d 118, 127 (Tex. App.—Fort Worth 2009, pet. ref’d) (“[O]ffenses barred under section 12.45 are neither convictions nor part of a defendant’s prior criminal record.”). Rather, DPS contends that the POM offense “resulted in” the misdemeanor assault final conviction by being considered as part of sentencing. Two approaches—offense-based and arrest-based—are used in determining the expunction eligibility of an offense when it arose from a multiple-offense arrest. See Ex parte R.P.G.P., 623 S.W.3d at 314. Under the offense-based approach, we consider the offenses individually for expunction purposes without consideration of the expunction eligibility of any other offenses that occurred during the same arrest. See id. Conversely, under the arrest-based approach, “expunction is available only if all the offenses comprising an arrest are eligible for expunction.” Id. In R.P.G.P., the supreme court resolved a court of appeals split regarding the Article 55.01(a)(2)(A) expunction scheme, “which concerns dismissals and plea bargains,” in the context of arrest records involving multiple offense. Id. at 315. The court held that when considering the expunction eligibility of an offense under the Article 55.01(a)(2) prerequisites and when considering a misdemeanor offense under Article 55.01(a)(2)(A), an offense-based approach is required. Id. at 322–23. In reaching this conclusion, the supreme court first addressed the significance of the legislature’s use of “the charge” and “the offense” in Article 55.01(a)(2), the “prerequisite” portion of the expunction statute, which is also at issue here. Id.; see also Tex. Code Crim. Proc. art. 55.01(a)(2) (requiring that “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 Chapter 42A for the offense” (emphasis added)). Id. The supreme court explained that Article 55.01(a)(2) previously permitted expunction when there was no court-ordered community supervision for “any offense” and that the legislature amended Article 55.01(a)(2) to require that arrest records be expunged if there had been no community supervision ordered for “the offense.” See R.P.G.P., 623 S.W.3d at 322–23; Tex. Code Crim. Proc. art. 55.01(a)(2). Thus, in amending, the legislature specified that “arrests are tied to single offenses for purposes of satisfying the requirement of (a)(2).” See R.P.G.P., 623 S.W.3d at 323. As a result, in this case, we focus only on the POM offense without consideration of the assault conviction. DPS contends that this Court, in analogous circumstances, has previously applied an arrest-based approach to a multi-charge arrest and concluded that expungement was unavailable. See G.B.E., 459 S.W.3d at 630 (concluding that dismissed charge resulted in a conviction under Article 55.01(a)(2) where dismissal was part of plea agreement for admission of guilt on other charge arising from same arrest). However, as discussed above, the supreme court has since made it clear that an offense-based approach, and not an arrest-based approach, applies to arrest records in the context of Article 55.01(a)(2). See Ex parte R.P.G.P., 623 S.W.3d at 315. Because G.B.E. was overruled by R.P.G.P. we will follow the offense-based approach as directed by the supreme court. See id. at 318, n. 33. The undisputed evidence shows that D.M.S. has been released and the charge of POM has not resulted in a final conviction for POM and is no longer pending. See Tex. Code Crim. Proc. art. 55.01(a)(2). Additionally, the evidence is sufficient to support the trial court’s finding that the limitations period had run on the POM offense at the time the trial court ordered expunction of the related records. See id. art. 55.01(a)(2)(B). Because an offense-based approach is appropriate when considering whether the prerequisites of Article 55.01(a)(2) are satisfied, the fact that the same arrest that the POM offense is linked to resulted in the assault conviction does not bar expunction of the POM offense under Article 55.01(a)(2)(B). See id. at 316. We conclude that the trial court did not err when it concluded that the POM offense did not result in a final conviction. Because the trial court did not abuse its discretion in granting D.M.S.’s petition for expunction, we overrule DPS’s issues. CONCLUSION Because we overruled DPS’s issues, we affirm the district court’s order expunging D.M.S.’s arrest records regarding her POM offense. Darlene Byrne, Chief Justice Before Chief Justice Byrne, Justices Kelly and Theofanis Affirmed Filed: November 16, 2023
