Can a Texas conviction for unlawfully carrying a weapon before September 2021 be expunged along with the arrest records?

Plain-English summary

In 2021 the Texas Legislature passed the Firearm Carry Act (House Bill 1927), which let most adults carry a handgun without a license and decriminalized conduct that used to be the offense of unlawfully carrying a weapon under section 46.02(a) of the Penal Code. The same Act amended the expunction statute, Code of Criminal Procedure article 55.01, by adding subsection (a)(1)(C). That new subsection says a person "convicted of an offense committed before September 1, 2021, under Section 46.02(a), Penal Code, as that section existed before that date" is entitled to have "all records and files relating to the arrest expunged."

The Nueces County District Attorney asked a focused question: does that phrase, "all records and files relating to the arrest," include the judgment of conviction itself, or only the surrounding arrest paperwork? The AG concluded that a court could conclude it includes the conviction.

The reasoning runs through the text and structure of chapter 55. First, "relating to" is given its plain meaning, "connected by reason of an established or discoverable relation"; an arrest and the conviction for the same offense are plainly connected, so the conviction is one of the records related to the arrest. Second, a neighboring provision (article 55.02, section 1a, read together with article 42.09 and article 42.01) shows the Legislature already understood a judgment of conviction to be a record that can be expunged. Third, subsection (a)(1)(C) sits right alongside subsection (a)(1)(B), the pardon-based expunction, and the Court of Criminal Appeals has said a pardoned conviction can be removed through expunction (Vandyke v. State). The AG found no textual basis to treat the conviction as expungeable under (a)(1)(B) but not (a)(1)(C).

The District Attorney pointed to House Bill 1927's section 28 savings provision, which keeps the prior law in effect for offenses committed before the Act took effect, and to the Code Construction Act's general rule of prospectivity. The AG answered that subsection (a)(1)(C) specifically authorizes expunction for offenses occurring before the Act's effective date, and when a specific provision conflicts with a general one, the specific provision controls (Sims v. State). So the savings clause does not defeat the new expunction right.

The opinion is careful that none of this is automatic. Expunction under (a)(1)(C) requires an ex parte petition, reasonable notice to the named agencies, and a hearing at which those agencies can argue why a record should be kept. The petitioner bears the burden of showing every statutory condition is met. After the hearing, it is the court that decides whether expunction applies in whole or in part and whether any record, including the judgment of conviction, may be retained. On the right facts, the court could order the conviction itself expunged.

What this means for you

If you were convicted of unlawfully carrying a weapon before September 1, 2021

Based on this opinion, article 55.01(a)(1)(C) gives you a path to expunge records relating to that arrest, and a court could conclude that path reaches the judgment of conviction itself, not just the arrest paperwork. The opinion does not make expunction automatic; you would file a petition under article 55.02 and the court decides after a hearing.

If you are a criminal defense attorney handling expunctions

The AG read "all records and files relating to the arrest" in subsection (a)(1)(C) to potentially include the conviction, relying on the plain meaning of "relating to," the parallel treatment of pardon-based expunction in (a)(1)(B) (Vandyke), and chapter 55's structure. The opinion also addresses and sets aside the House Bill 1927 savings-clause argument: the specific (a)(1)(C) provision prevails over the general savings rule.

If you are a prosecutor, court clerk, or agency that holds these records

The opinion describes the article 55.02 process: notice to named officials and agencies, a hearing where the agency can present reasons a record should be retained, and a court order that may allow retention of records needed for other proceedings. After a final order, named entities generally must return or obliterate the records, and the clerk maintains them out of public inspection. Misusing expunged records can be a criminal offense under article 55.04.

Common questions

Q: Can a pre-2021 unlawful-carry conviction in Texas be wiped, not just the arrest record?
A: The AG concluded a court could conclude so. Article 55.01(a)(1)(C) covers "all records and files relating to the arrest," and the AG read that to potentially include the judgment of conviction itself.

Q: Is expunction automatic now that the conduct was decriminalized?
A: No. You have to file a petition under article 55.02, give notice to the named agencies, and go through a hearing. The court decides whether expunction applies and how far it reaches.

Q: Doesn't House Bill 1927's savings clause keep the old law in place for old offenses?
A: The savings clause states the general rule preserving prior law, but subsection (a)(1)(C) specifically authorizes expunction for offenses committed before September 1, 2021. The AG said the specific provision prevails over the general one to the extent they conflict.

Q: Who decides whether the conviction itself gets expunged?
A: The court, after the article 55.02 hearing. It can grant expunction in whole or in part and can allow an agency to keep a particular record if there is a reason to retain it.

Q: What law made unlawful carry no longer an offense?
A: The Firearm Carry Act of 2021 (House Bill 1927), which decriminalized conduct that previously constituted unlawfully carrying a weapon under Penal Code section 46.02(a) as it existed before September 1, 2021.

Background and statutory framework

Article 55.01 of the Code of Criminal Procedure governs expunction, which the Texas Supreme Court has described as a statutory privilege defined by the Legislature rather than a constitutional or common-law right (Ex parte R.P.G.P.). An expunction order generally requires governmental agencies to return, remove, delete, or destroy all records and files relating to an arrest and lets the person deny the arrest occurred (Ex parte E.H.). The statute provides two basic types of expunction: subsection (a)(1) for cases that went to trial and ended in acquittal or a qualifying conviction, and subsection (a)(2) for charges that did not end in a final conviction (State v. T.S.N.).

The Firearm Carry Act added subsection (a)(1)(C), extending expunction to a person convicted of an offense committed before September 1, 2021 under the prior version of Penal Code section 46.02(a). The AG construed the new subsection in the context of chapter 55 as a whole (20801, Inc. v. Parker), gave "relating to" its plain meaning (Ross v. St. Luke's Episcopal Hosp.), and compared it to the pardon-based expunction in (a)(1)(B), which can reach a conviction (Vandyke v. State). The procedure runs through article 55.02: an ex parte petition, notice and a hearing, the petitioner's burden of proof (Tex. Dep't of Pub. Safety v. J.H.J.), and the court's authority to allow partial expunction or retention of records needed elsewhere (In re State Bar of Tex.; State v. T.S.N.; Ex parte Guajardo). The general savings clause in House Bill 1927 section 28 and the Code Construction Act's prospectivity rule (Gov't Code section 311.031) yield to the specific expunction provision (Sims v. State).

Citations and references

Statutes:

• Tex. Code Crim. Proc. art. 55.01 (expunction of criminal records), art. 55.02 (procedure), art. 55.03 and art. 55.04 (prohibited use of expunged records)
• Tex. Penal Code § 46.02 (unlawful carrying of weapons)
• Firearm Carry Act of 2021 (House Bill 1927), Act of May 24, 2021, 87th Leg., R.S., ch. 809, 2021 Tex. Gen. Laws 1960

Key cases:

• Vandyke v. State, 538 S.W.3d 561 (Tex. Crim. App. 2017) (an individual may remove a pardoned conviction from criminal records through expunction)
• State v. T.S.N., 547 S.W.3d 617 (Tex. 2018) (expunction statute allows partial expunctions and redactions where necessary)
• Sims v. State, 569 S.W.3d 634 (Tex. Crim. App. 2019) (a specific provision prevails over a conflicting general provision)
• Ex parte E.H., 602 S.W.3d 486 (Tex. 2020) (an expunction order requires agencies to return, remove, delete, or destroy records relating to an arrest)
• In re State Bar of Tex., 440 S.W.3d 621 (Tex. 2014) (a court may allow retention of a record needed for other proceedings)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0402
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2022/kp-0402.pdf

Original opinion text

March 30, 2022

The Honorable Mark A. Gonzalez
Nueces County District Attorney
901 Leopard, Room 206
Corpus Christi, Texas 78401-3681

Opinion No. KP-0402

Re: Whether Code of Criminal Procedure article 55.01(a)(1)(C), which provides for the expunction of all records and files relating to the arrest of a person convicted of unlawfully carrying certain weapons, includes expunction of the conviction itself (RQ-0428-KP)

Dear Mr. Gonzalez:

You ask whether Code of Criminal Procedure article 55.01(a)(1)(C), which provides for the expunction of all records and files relating to the arrest of a person convicted of certain weapons-carry offenses, includes expunction of the conviction itself.¹ Your question stems from the enactment of the Firearm Carry Act of 2021 (the "Act"), which, among other things, decriminalized conduct that previously constituted the offense of unlawfully carrying a weapon under subsection 46.02(a) of the Penal Code. See Request Letter at 1; see also Act of May 24, 2021, 87th Leg., R.S., ch. 809, §§ 22, 26(8), 2021 Tex. Gen. Laws 1960, 1967, 1972 ("House Bill 1927").

¹ See Letter and attached Brief from Honorable Mark A. Gonzalez, Nueces Cnty. Dist. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at 1 (Sept. 1, 2021), https://www2.texasattorneygeneral.gov/opinions/opinions/51paxton/rq/2021/pdf/RQ0428KP.pdf ("Request Letter" & "Brief").

Background

Article 55.01 governs the expunction of criminal records, which is a statutory privilege defined by the Legislature, not a constitutional or common-law right. See TEX. CODE CRIM. PROC. art. 55.01; Ex parte R.P.G.P., 623 S.W.3d 313, 316 (Tex. 2021). An expunction order generally "requires governmental agencies to return, remove, delete, or destroy all records" and files relating to a person's arrest. Ex parte E.H., 602 S.W.3d 486, 489 (Tex. 2020). The court's order "generally permits the person to deny the occurrence of the arrest and the existence of the expunction order." Id.

Article 55.01 provides for two basic types of expunctions. See TEX. CODE CRIM. PROC. art. 55.01. Subsection (a)(1) applies when a person was tried for an offense and was either acquitted or convicted under the circumstances specified in the subsection. Id. art. 55.01(a)(1). Subsection (a)(2) applies only to a charge that did not result in a final conviction and is no longer pending. Id. art. 55.01(a)(2).

Prior to the Act, subsection (a)(1) provided for expunction only when a trial resulted either in an acquittal or a conviction that the Governor later pardoned. See State v. T.S.N., 547 S.W.3d 617, 623–24 (Tex. 2018). The Act added article 55.01(a)(1)(C) concerning convictions for specified weapons-carry offenses, so that article 55.01(a)(1) now provides:

(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, except as provided by Subsection (c);

(B) convicted and subsequently:

(i) pardoned for a reason other than that described by Subparagraph (ii); or

(ii) pardoned or otherwise granted relief on the basis of actual innocence with respect to that offense, if the applicable pardon or court order clearly indicates on its face that the pardon or order was granted or rendered on the basis of the person's actual innocence; or

(C) convicted of an offense committed before September 1, 2021, under Section 46.02(a), Penal Code, as that section existed before that date . . . .²

TEX. CODE CRIM. PROC. art. 55.01(a)(1) (emphasis added). You wish to know whether a conviction stemming from an arrest for an offense under section 46.02(a) of the Penal Code as it existed before September 1, 2021, is a record or file relating to the arrest and therefore subject to expunction under article 55.01(a)(1)(C) of the Code of Criminal Procedure. Request Letter at 1. To address your question, we consider article 55.01(a)(1)(C) in context as part of the broader statutory plan for expunction in chapter 55. See 20801, Inc. v. Parker, 249 S.W.3d 392, 396 (Tex. 2008) ("[W]hen interpreting [a specific statute], we must consider its role in the broader statutory scheme.").

² Although the Act decriminalizes conduct that constituted an offense under subsection 46.02(c) as it read prior to September 1, 2021, subsection 46.02(a) now proscribes different conduct that constitutes the offense of unlawfully carrying weapons. See TEX. PENAL CODE § 46.02(a) ("Unlawful Carrying Weapons").

Article 55.01(a)(1)(C) Proceedings

A person entitled to expunction based on article 55.01(a)(1)(C) may file an ex parte petition for expunction in district or other specified court as appropriate. TEX. CODE CRIM. PROC. art. 55.02, § 2(a), (a-1). The petition must identify pertinent officials, agencies, and entities of the state or a political subdivision and certain private entities. Id. art. 55.02, § 2(b)(8). The court must set a hearing on the petition and give reasonable notice of the hearing "to each official or agency or other governmental entity named in the petition." Id. art. 55.02, § 2(c). The petitioner bears the burden of establishing that all statutory conditions have been met. Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.). But expunction is not absolute, and a court may make certain exceptions in its order, such as allowing the retention of a record needed for other criminal or civil proceedings. See TEX. CODE CRIM. PROC. art. 55.02, § 4; In re State Bar of Tex., 440 S.W.3d 621, 626–27 (Tex. 2014); see also State v. T.S.N., 547 S.W.3d at 624 (holding that the expunction statute allows for partial expunctions and redactions where necessary).

When the court's expunction order is final, the clerk of the court shall send a certified copy "to the Crime Records Service of the Department of Public Safety and to each official or agency or other governmental entity of this state or of any political subdivision of this state named in the order." TEX. CODE CRIM. PROC. art. 55.02, § 3(c). Upon receipt of the order "each official or agency or other governmental entity named in the order" is generally required to "return all records and files that are subject to the expunction order to the court" or, "if removal is impracticable, obliterate all portions of the record or file that identify the person who is the subject of the order." Id. art. 55.02, § 5(a)(1). The court clerk maintains the files and records in an area not open to inspection and, consistent with the terms of the expunction order, may ultimately destroy the files and records. Id. art. 55.02, § 5(c), (d); In re State Bar of Tex., 440 S.W.3d at 624 (observing that the clerk generally destroys the collected files and records unless an exception applies).

Consistent with the terms of a court's expunction order, "the release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited." TEX. CODE CRIM. PROC. art. 55.03(1). Moreover, the failure to return or obliterate an expunged file or record, or the release, dissemination, or other use of the records or files may constitute a criminal offense. Id. art. 55.04.

Records and Files Subject to Expunction

Although article 55.01 provides for expunction of "all records and files relating to the arrest," chapter 55 does not identify or otherwise explain what records or files may be expunged. Id. art. 55.01(a); see id. arts. 55.01–.06. But article 55.01(a)(1)(C) reveals a legislative expectation that a conviction may be subject to an expunction order in some circumstances. Id. art. 55.01(a)(1)(C). First, courts will "construe a statute's words according to their plain and common meaning." Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 501 (Tex. 2015). "Related" commonly means "having relationship: connected by reason of an established or discoverable relation." WEBSTER'S THIRD NEW INT'L DICTIONARY 1916 (2002). An arrest and conviction for the same offense are connected by reason of their relation, and thus the conviction is one of the "records and files related to the arrest" under the common meaning of that phrase.

Second, a related expunction provision in chapter 55 demonstrates that a judgment of conviction may be a "record relating to the arrest" and subject to expunction. Article 55.02, section 1a addresses the procedure for expunging a conviction pardoned on the basis of actual innocence or completion of certain programs. See TEX. CODE CRIM. PROC. art. 55.02, § 1a. Article 55.02, section 1a(c)(1) requires documents pertaining to a defendant transferred by a county to the Department under article 42.09, section 8(a) to be returned to the court for expunction proceedings. Id. art. 55.02, § 1a(c)(1). The list of documents in article 42.09, section 8(a) includes "a copy of the judgment entered pursuant to Article 42.01." Id. art. 42.09, § 8(a)(1). Article 42.01 defines a judgment as "the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant." Id. art. 42.01, § 1. Thus, in this context, the Legislature understood a conviction to be one of the "records and files relating to the arrest" that is subject to expunction under article 55.01(a)(1)(B).

Finally, expunction under article 55.01(a)(1) applies to both a person whose conviction was pardoned based on actual innocence under subsection (B) and a person who was convicted of a weapons-carry offense under subsection (C). See id. art. 55.01(a)(1)(B)–(C). The Court of Criminal Appeals has recognized that expunction for a pardon may include the conviction. See Vandyke v. State, 538 S.W.3d 561, 578 (Tex. Crim. App. 2017) (stating that "an individual may ultimately remove a pardoned conviction from his or her criminal records through an expunction" (emphasis added)). Article 55.01 does not provide a textual basis to conclude that a judgment of conviction is subject to expunction under subsection (a)(1)(B) but not in subsection (a)(1)(C). Thus, House Bill 1927 reflects a legislative intent that a conviction under article 55.01(a)(1)(B) be subject to a court's expunction order in particular circumstances.

You note that House Bill 1927 generally provides for prospective application of changes and a savings provision preserving prior law. See Brief at 3–4; House Bill 1927, § 28; see also TEX. GOV'T CODE § 311.031 (Code Construction Act provision stating the general rule of prospectivity). You suggest that in light of House Bill 1927's savings provision, article 55.01(a)(1)(C) should be construed as allowing expunction of all records and files relating to an arrest except for the conviction of the offense under the prior version of section 46.02(a). See Brief at 4.

House Bill 1927 section 28 provides:

The changes in law made by this Act apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.

House Bill 1927, § 28. Section 28's savings provision states the general rule preserving the prior law for offenses committed prior to the Act's effective date. Id. But article 55.01(a)(1)(C) specifically authorizes expunction of records and files pertaining to offenses occurring before the Act's effective date—for a person "convicted of an offense committed before September 1, 2021, under Section 46.02(a), Penal Code, as that section existed before that date." TEX. CODE CRIM. PROC. art. 55.01(a)(1)(C). When a general provision conflicts with a specific provision, the specific provision prevails as an exception to the general provision. See Sims v. State, 569 S.W.3d 634, 642 (Tex. Crim. App. 2019). Thus, a court would likely conclude that, to the extent of conflict, Code of Criminal Procedure article 55.01(a)(1)(C)'s provision for expunction prevails over the general savings provision in House Bill 1927, section 28.³

As discussed above, an expunction petition under article 55.01(a)(1)(C) requires a hearing after giving reasonable notice to the officials, agencies, or other governmental entities named in the petition. See TEX. CODE CRIM. PROC. art. 55.02, § 2(a), (b)(8), (c). The officials, agencies, or entities may present reasons and evidence at the hearing why the petition should be denied, or a particular record or file should be retained. See Ex parte Guajardo, 70 S.W.3d 202, 205–06 (Tex. App.—San Antonio 2001, no pet.). It is for the court after a hearing to determine if the petitioner is entitled to expunction in whole or in part, whether a particular record or file may be retained, and any conditions of the retention. See TEX. CODE CRIM. PROC. art. 55.02, §§ 2–5. But on particular facts, a court could conclude that an order of expunction under article 55.01(a)(1)(C) may include the judgment of conviction itself.

³ You do not ask and we do not address the application of the general savings provisions in the Code Construction Act and in section 28 of House Bill 1927 to other portions of the Act other than expunction under article 55.01(a)(1)(C). See Request Letter at 1.

S U M M A R Y

The Firearm Carry Act passed by the Eighty-seventh Legislature decriminalized specified offenses and amended article 55.01 of the Code of Criminal Procedure concerning expunction of certain records. Article 55.01(a)(1)(C) provides for the expunction of all records and files relating to the arrest of a person convicted of an offense committed before September 1, 2021, under section 46.02(a) of the Penal Code as it existed before that date. A court could conclude that an order of expunction under article 55.01(a)(1)(C) may include the judgment of conviction for such an offense.

Very truly yours,

KEN PAXTON
Attorney General of Texas

BRENT E. WEBSTER
First Assistant Attorney General

LESLEY FRENCH
Chief of Staff

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

WILLIAM A. HILL
Assistant Attorney General, Opinion Committee