Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-25-00522-CV B. J., Appellant v. The State of Texas and Texas Department of Public Safety, Appellees FROM THE 395TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 25-0759-C395, THE HONORABLE RYAN D. LARSON, JUDGE PRESIDING CONCURRING OPINION I respectfully concur. I agree with the Court that the relief sought by B.J. is not available to her. As the Court correctly notes, B.J. was convicted of a Class C misdemeanor assault charge, and thus, “she is not eligible to have the records and files related to that arrest expunged.” See Tex. Code Crim. Proc. art. 55A.051. I write separately to question whether justice has been served in this case and whether our expunction laws adequately address cases like B.J.’s. Below, B.J. explained that her conviction stemmed from “a domestic dispute with a former boyfriend.” She detailed that she “was acting in self defense” and that the police were called “due to visible injuries [she] sustained.” B.J. believed the Round Rock Police Department possessed documents “detailing . . . multiple prior incidents where [she] was a victim of abuse from the same individual” and believed this provided “critical context” to the events leading to her arrest and ultimate conviction.1 B.J. explained that her conviction had “a profound and ongoing negative impact” on her prospects for “employment, housing, and overall opportunities.” However, she emphasized that she had “dedicated” herself “to personal growth and maintained a law-abiding life.” She referred to the incident that occurred over twenty-five years ago as “a significant turning point” in her life and recognized that “even in self defense [she] could have handled the situation differently.” She represented to the trial court that this experience “shaped [her] approach to relationships” and that she has “actively worked on creating a safer and health[ier] environment for [her]self.” The attorney for the State noted that she “fe[lt]” for B.J., but argued that the court’s hands were tied by the clear language of the Code of Criminal Procedure. In ultimately denying the relief requested, the judge below stated: I’m absolutely concerned for people that have been victims of domestic violence and do a lot of work in the community to try and help people move forward with their lives, also with individuals that have convictions and trying to figure out ways that we can help them as a society move forward. And I’m absolutely concerned for you and your ability to do that, and I’m happy that 25 years later that you have embraced that growth. As far as me as a judge and what my legal authority is, [the State] is correct, I do not have the legal authority to expunge a conviction. And so for that reason, I have no . . . other route but to grant their denial. 1 B.J. introduced several items into evidence to provide context to her conviction for assault, including two additional police reports listing her as the victim of assault and a judgment reflecting that her ex-boyfriend was convicted of assault family violence. Although they were not admitted into evidence, these items appear in the reporter’s record. 2 This was the correct decision under the current state of the law. But sometimes— and far too often for my liking—what is correct under the law is not the same as what is just. And when those two metrics depart from one another, it is critical that the two other branches of government take note and reevaluate the laws they have either written or are enforcing. I am not persuaded that justice is best served by preventing an individual who was convicted of a Class C misdemeanor over twenty-five years ago and has since remained arrest-free from removing the stain of that conviction from her record. Even if the facts of the incident leading to B.J.’s conviction were not what they are, based on the record before us, time has proven that she is a law-abiding citizen who deserves a clean slate. But Texas does not make exceptions for individuals who have stayed on the straight and narrow for decades or for individuals whose conviction is tied to the domestic violence they endured. And that our current expunction laws do not provide B.J. with a second chance demonstrates that they are draconian. This does not have to be the case. Many states allow a conviction to be expunged based on the length of time an individual has remained crime-free. See, e.g., Ark. Code § 16-90-1406; N.H. Rev. Stat. § 651:5; NMSA § 29-3A-5 (2020). And New Jersey, for instance, has authorized expunctions both for survivors of domestic violence and for individuals who have not committed any additional crimes for a specified period of time. See N.J.S. §§ 2C:52-5.3(b), 2C:52-5.5(a). Courts in these states are generally permitted to take into consideration a variety of other factors when deciding whether expunction is appropriate in any given case. See, e.g., id. § 2C:52-14(b) (authorizing denial of expunction petition when “[t]he need for the availability of the records outweighs the desirability of having a person freed from any disabilities” associated with conviction); State v. Baker, 55 A.3d 1001, 1004–05 (N.H. 2012) (identifying non-exhaustive list of factors New Hampshire courts should consider when determining whether 3 to annul record of offense). This allows their expunction laws to operate, unlike Texas’s, as a scalpel rather than a cudgel. Returning to the case before us, below, the State represented that “[t]here are other legal avenues [B.J.] may be able to seek to attack the conviction.” The State did not specify what those other avenues were. Of course, nondisclosure orders are an available remedy in Texas to individuals convicted of certain misdemeanor offenses. See Tex. Gov’t Code § 411.0735. However, there are exceptions that restrict an individual’s ability to seek a nondisclosure order, including if the offense involved family violence. See id. § 411.074(b)(1)(D) (providing that nondisclosure order may not be granted for “any . . . offense involving family violence, as defined by Section 71.004, Family Code”); Tex. Fam. Code § 71.004 (defining “family violence”). I will not speak to whether that exception—or any other one—may apply to B.J.’s case. But I will note that a nondisclosure order has important limitations. Criminal justice agencies may still report a conviction that is subject to a nondisclosure order to a wide variety of entities, including banks, the State Board for Educator Certification, the State Bar of Texas, the Texas Medical Board, and the Texas Board of Nursing. See Tex. Gov’t Code § 411.0765(b)(3), (6), (15), (31). And some of the entities who may receive such a report are required or permitted to deny, suspend, or revoke licensing to an individual who has been convicted of certain offenses that may be subject to a nondisclosure order. See, e.g., Tex. Occ. Code §§ 53.021(a), 164.057. It is possible that entities with the discretion to permit licensure despite these convictions may take a holistic approach and see past a decades-old conviction that is subject to a nondisclosure order. But what individual would, for instance, enroll in medical school, study for years, and sink into debt, all on a shaky bet that the 4 Texas Medical Board will take such an approach? And what good are these laws if they are simultaneously weeding out otherwise smart and talented individuals who have proven they are worthy of redemption and preventing those same individuals from securing employment in their chosen field? Expunction would undoubtedly provide B.J. with the most complete form of relief. I agree with the Court that this form of relief is not available to her today. I respectfully ask the Legislature to consider making it available to her, and others like her, in the future. __________________________________________ Maggie Ellis, Justice Before Chief Justice Byrne, Justices Crump and Ellis Filed: October 8, 2026 5