Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00479-CV
EX PARTE R.A.L., Jr.
From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2019W0563 Honorable Ray Olivarri, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice
Delivered and Filed: February 5, 2020
REVERSED AND RENDERED
The Texas Department of Public Safety appeals the trial court’s order granting the petition
for expunction filed by R.A.L., Jr. The Department contends the trial court erred in granting the
expunction because the 2017 driving while intoxicated offense for which R.A.L. was acquitted
constitutes the same “criminal episode” as a 2013 driving while intoxicated offense for which he
was convicted. We agree, so we reverse the trial court’s order and render judgment denying the
petition.
BACKGROUND
On December 25, 2017, R.A.L. was arrested for driving while intoxicated. After a jury
acquitted him of that charge, he filed a petition to expunge all criminal records and files pertaining
to his 2017 arrest. In his verified petition, R.A.L. admitted that the arrest records he sought to 04-19-00479-CV
expunge were “Driving While Intoxicated-2D.” The Department did not file an answer and the
trial court signed an order requiring the Department to expunge all records regarding R.A.L.’s
2017 arrest. 1
The Department filed a motion for new trial alleging that R.A.L. was not entitled to
expunge the records of his 2017 arrest because he was previously convicted of driving while
intoxicated in 2013, and since the 2013 and 2017 offenses are “the same or similar offenses,” they
constitute a criminal episode for which expunction is not available. The Department attached to its
motion a certified copy of the 2013 judgment convicting R.A.L. of driving while intoxicated with
a blood alcohol content of 0.15 or higher. The record indicates that no hearing was held on the
expunction petition or the Department’s motion for new trial. The Department timely appealed,
arguing that R.A.L. was not statutorily entitled to an expunction and that the evidence supporting
the trial court’s order is legally insufficient.
STANDARD OF REVIEW
A trial court’s ruling on a petition for expunction is generally reviewed for abuse of
discretion, but a trial court has no discretion in deciding what the law is or in applying it to the
facts. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). When a trial court’s expunction ruling
turns on a question of law like statutory construction, it is subject to de novo review. Id. Here, the
trial court’s expunction ruling involves the interpretation and application of article 55.01(c) of the
expunction statute. See id.; In re Expunction of J.B., 564 S.W.3d 436, 439 (Tex. App.—El Paso
2016, no pet.). We review the trial court’s ruling de novo. See T.S.N., 547 S.W.3d at 620.
1 In its motion for new trial, the Department alleged that it “was not made aware of any Petition for Expunction or hearing date, only receiving notice of the signed order.” R.A.L.’s petition for expunction lists the Department as one of several “law enforcement agencies [that] have records or files subject to expunction herein and should be served with notice of this petition.”
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DISCUSSION
Expunction statutes permit the expunction of records of wrongful arrests. Harris Cty. Dist.
Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). “Expunction is not a right; it is a
statutory privilege.” In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014). If a petitioner who
has been arrested for the commission of an offense meets all the requirements of the expunction
statute, then all information about the arrest is removed from the State’s records. See In re J.B.,
564 S.W.3d at 439. The petitioner bears the burden of establishing that all of the statutory
conditions or requirements are met. See T.S.N., 547 S.W.3d at 620; In re J.B., 564 S.W.3d at 439.
Article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure permits a person to have
all records and files relating to an arrest expunged if the person is tried and acquitted of the offense.
TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1)(A). That statute contains an exception which
prohibits a trial court from ordering the expunction of records—even if the person was acquitted—
if the offense arose out of a criminal episode and the person was convicted of at least one other
offense occurring during the criminal episode. Id. art. 55.01(c). Article 55.01(c) incorporates the
definition of criminal episode from Texas Penal Code section 3.01. Ex parte Rios, No. 04-19-
00149-CV, 2019 WL 4280082, at *2 (Tex. App.—San Antonio Sept. 11, 2019, no pet.). For that
reason, we must construe both article 55.01(c) of the Texas Code of Criminal Procedure and
section 3.01 of the Texas Penal Code to determine whether the trial court properly granted the
expunction. See id.
“Statutes are to be analyzed as a cohesive, contextual whole with the goal of effectuating
the Legislature’s intent and employing the presumption that the Legislature intended a just and
reasonable result.” T.S.N., 547 S.W.3d at 620 (internal quotation omitted). “Further, our analysis
is limited to application of the plain meaning of the statutory language unless a different meaning
is apparent from the context or the plain meaning leads to absurd or nonsensical results.” Id. at 621
-3- 04-19-00479-CV
(internal quotation omitted). We also “operate under the presumption that the legislature chooses
a statute’s language with care, deciding to omit or include words purposefully.” In re J.B., 564
S.W.3d at 440.
Section 3.01(2) of the Texas Penal Code defines criminal episode as “the commission of
two or more offenses, regardless of whether the harm is directed toward or inflicted upon more
than one person or item of property,” if “the offenses are the repeated commission of the same or
similar offenses.” TEX. PENAL CODE ANN. § 3.01(2). Section 3.01(2) does not impose a particular
time frame within which the same or similar offenses must be repeated. See Ex parte Rios, 2019
WL 4280082, at *2; In re J.B., 564 S.W.3d at 441; Waddell v. State, 456 S.W.3d 366, 369 (Tex.
App.—Corpus Christi 2015, no pet.); Baker v. State, 107 S.W.3d 671, 673 (Tex. App.—San
Antonio 2003, no pet.) (citing Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi
1995, pet. ref’d) (section 3.01(2) does not impose time differential between commission of same
or similar offenses)). “Had the Legislature wanted us to consider a time differential in the
application of this section of the Code, it could have easily done so.” Guidry, 909 S.W.2d at 585.
In addition, section 3.01(2) does not require that the offenses be committed in the same or similar
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Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION
No. 04-19-00479-CV
EX PARTE R.A.L., Jr.
From the 144th Judicial District Court, Bexar County, Texas Trial Court No. 2019W0563 Honorable Ray Olivarri, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Beth Watkins, Justice
Delivered and Filed: February 5, 2020
REVERSED AND RENDERED
The Texas Department of Public Safety appeals the trial court’s order granting the petition
for expunction filed by R.A.L., Jr. The Department contends the trial court erred in granting the
expunction because the 2017 driving while intoxicated offense for which R.A.L. was acquitted
constitutes the same “criminal episode” as a 2013 driving while intoxicated offense for which he
was convicted. We agree, so we reverse the trial court’s order and render judgment denying the
petition.
BACKGROUND
On December 25, 2017, R.A.L. was arrested for driving while intoxicated. After a jury
acquitted him of that charge, he filed a petition to expunge all criminal records and files pertaining
to his 2017 arrest. In his verified petition, R.A.L. admitted that the arrest records he sought to 04-19-00479-CV
expunge were “Driving While Intoxicated-2D.” The Department did not file an answer and the
trial court signed an order requiring the Department to expunge all records regarding R.A.L.’s
2017 arrest. 1
The Department filed a motion for new trial alleging that R.A.L. was not entitled to
expunge the records of his 2017 arrest because he was previously convicted of driving while
intoxicated in 2013, and since the 2013 and 2017 offenses are “the same or similar offenses,” they
constitute a criminal episode for which expunction is not available. The Department attached to its
motion a certified copy of the 2013 judgment convicting R.A.L. of driving while intoxicated with
a blood alcohol content of 0.15 or higher. The record indicates that no hearing was held on the
expunction petition or the Department’s motion for new trial. The Department timely appealed,
arguing that R.A.L. was not statutorily entitled to an expunction and that the evidence supporting
the trial court’s order is legally insufficient.
STANDARD OF REVIEW
A trial court’s ruling on a petition for expunction is generally reviewed for abuse of
discretion, but a trial court has no discretion in deciding what the law is or in applying it to the
facts. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). When a trial court’s expunction ruling
turns on a question of law like statutory construction, it is subject to de novo review. Id. Here, the
trial court’s expunction ruling involves the interpretation and application of article 55.01(c) of the
expunction statute. See id.; In re Expunction of J.B., 564 S.W.3d 436, 439 (Tex. App.—El Paso
2016, no pet.). We review the trial court’s ruling de novo. See T.S.N., 547 S.W.3d at 620.
1 In its motion for new trial, the Department alleged that it “was not made aware of any Petition for Expunction or hearing date, only receiving notice of the signed order.” R.A.L.’s petition for expunction lists the Department as one of several “law enforcement agencies [that] have records or files subject to expunction herein and should be served with notice of this petition.”
-2- 04-19-00479-CV
DISCUSSION
Expunction statutes permit the expunction of records of wrongful arrests. Harris Cty. Dist.
Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). “Expunction is not a right; it is a
statutory privilege.” In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014). If a petitioner who
has been arrested for the commission of an offense meets all the requirements of the expunction
statute, then all information about the arrest is removed from the State’s records. See In re J.B.,
564 S.W.3d at 439. The petitioner bears the burden of establishing that all of the statutory
conditions or requirements are met. See T.S.N., 547 S.W.3d at 620; In re J.B., 564 S.W.3d at 439.
Article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure permits a person to have
all records and files relating to an arrest expunged if the person is tried and acquitted of the offense.
TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1)(A). That statute contains an exception which
prohibits a trial court from ordering the expunction of records—even if the person was acquitted—
if the offense arose out of a criminal episode and the person was convicted of at least one other
offense occurring during the criminal episode. Id. art. 55.01(c). Article 55.01(c) incorporates the
definition of criminal episode from Texas Penal Code section 3.01. Ex parte Rios, No. 04-19-
00149-CV, 2019 WL 4280082, at *2 (Tex. App.—San Antonio Sept. 11, 2019, no pet.). For that
reason, we must construe both article 55.01(c) of the Texas Code of Criminal Procedure and
section 3.01 of the Texas Penal Code to determine whether the trial court properly granted the
expunction. See id.
“Statutes are to be analyzed as a cohesive, contextual whole with the goal of effectuating
the Legislature’s intent and employing the presumption that the Legislature intended a just and
reasonable result.” T.S.N., 547 S.W.3d at 620 (internal quotation omitted). “Further, our analysis
is limited to application of the plain meaning of the statutory language unless a different meaning
is apparent from the context or the plain meaning leads to absurd or nonsensical results.” Id. at 621
-3- 04-19-00479-CV
(internal quotation omitted). We also “operate under the presumption that the legislature chooses
a statute’s language with care, deciding to omit or include words purposefully.” In re J.B., 564
S.W.3d at 440.
Section 3.01(2) of the Texas Penal Code defines criminal episode as “the commission of
two or more offenses, regardless of whether the harm is directed toward or inflicted upon more
than one person or item of property,” if “the offenses are the repeated commission of the same or
similar offenses.” TEX. PENAL CODE ANN. § 3.01(2). Section 3.01(2) does not impose a particular
time frame within which the same or similar offenses must be repeated. See Ex parte Rios, 2019
WL 4280082, at *2; In re J.B., 564 S.W.3d at 441; Waddell v. State, 456 S.W.3d 366, 369 (Tex.
App.—Corpus Christi 2015, no pet.); Baker v. State, 107 S.W.3d 671, 673 (Tex. App.—San
Antonio 2003, no pet.) (citing Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi
1995, pet. ref’d) (section 3.01(2) does not impose time differential between commission of same
or similar offenses)). “Had the Legislature wanted us to consider a time differential in the
application of this section of the Code, it could have easily done so.” Guidry, 909 S.W.2d at 585.
In addition, section 3.01(2) does not require that the offenses be committed in the same or similar
fashion—only that the offenses are the repeated commission of the same or similar offense. Ex
parte Rios, 2019 WL 4280082, at *2; see generally Duncan v. State, No. 08-12-00328-CR, 2013
WL 5716179, at *2 (Tex. App.—El Paso Oct. 18, 2013, no pet.) (not designated for publication)
(“To be characterized as a single criminal episode, multiple offenses occurring on different dates,
in different places, and against several complainants must either: (1) be the same or similar; (2)
share a common scheme or plan; or (3) have been repeated in a similar fashion.”).
The 2017 offense for driving while intoxicated constitutes “the repeated commission of the
same . . . offense” as the 2013 offense for driving while intoxicated for which R.A.L. was
convicted. TEX. PENAL CODE § 3.01(2). The Legislature has declared that records from a
-4- 04-19-00479-CV
subsequent arrest for the repeated commission of the same offense are not available for expunction
if the previous arrest resulted in a conviction. TEX. CODE CRIM. PROC. art. 55.01(c). For that reason,
R.A.L.’s arrest record for the 2017 offense of driving while intoxicated is not available for
expunction. Because we sustain the Department’s first argument on appeal, we do not reach its
second argument. See TEX. R. APP. P. 47.1 (requiring opinions to address only the issues necessary
to final disposition of the appeal)
CONCLUSION
We reverse the trial court’s Order of Expunction, and render judgment denying the Petition
for Expunction of Records.
Beth Watkins, Justice
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