Summary
consolidating and affirming Ex parte Ferris , 613 S.W.3d 276, 280 (Tex. App.—Dallas 2020), and Ex parte K.T. , 612 S.W.3d 111, 113 (Tex. App.—Fort Worth 2020), but referring to Ex parte Ferris as "Ex parte C.F. "
Summary of this case from Ex parte N.R.L.Opinion
No. 20-0977 No. 21-0075
05-13-2022
EX PARTE K.T. Ex parte C.F.
Kyle Highful, W. Kenneth Paxton Jr., Attorney General of Texas, Judd E. Stone II, Office of the Attorney General, Austin, Amanda B. Morrison, Brent Webster, Jeanine C. Hudson, Texas Department of Public Safety, CRS Legal - Expunctions, Austin, Kyle Hawkins, Gibson Dunn & Crutcher LLP, Houston, for Petitioner Texas Department of Public Safety in No. 20-0977. Jason Niehaus, Bodkin Niehaus Dorris PLLC, Flower Mound, Nathaniel Miller, The Law Offices of Nathan Miller, PLLC, Denton, for Respondent T., K. in No. 20-0977. Jeanine C. Hudson, Amanda B. Morrison, Texas Department of Public Safety, CRS Legal - Expunctions, Austin, Kyle Highful, Office of the Attorney General, Austin, Mary Kay Sicola, Austin, for Petitioner Texas Department of Public Safety in No. 21-0075. Jason Niehaus, Bodkin Niehaus Dorris PLLC, Flower Mound, for Respondent Ferris, Charles in No. 21-0075. Mark W. Bennett, Bennett & Bennett, Houston, for Amici Curiae Bennett, Mark W., Haygood, Lane A. Jane Kadirhan, Kadirhan Law Firm, Austin, Michael Gross, Gross & Esparza, P.L.L.C., San Antonio, Niles Stefan Illich, Scott H. Palmer, P.C., Addison, for Amicus Curiae Texas Criminal Defense Lawyers Association.
Kyle Highful, W. Kenneth Paxton Jr., Attorney General of Texas, Judd E. Stone II, Office of the Attorney General, Austin, Amanda B. Morrison, Brent Webster, Jeanine C. Hudson, Texas Department of Public Safety, CRS Legal - Expunctions, Austin, Kyle Hawkins, Gibson Dunn & Crutcher LLP, Houston, for Petitioner Texas Department of Public Safety in No. 20-0977.
Jason Niehaus, Bodkin Niehaus Dorris PLLC, Flower Mound, Nathaniel Miller, The Law Offices of Nathan Miller, PLLC, Denton, for Respondent T., K. in No. 20-0977.
Jeanine C. Hudson, Amanda B. Morrison, Texas Department of Public Safety, CRS Legal - Expunctions, Austin, Kyle Highful, Office of the Attorney General, Austin, Mary Kay Sicola, Austin, for Petitioner Texas Department of Public Safety in No. 21-0075.
Jason Niehaus, Bodkin Niehaus Dorris PLLC, Flower Mound, for Respondent Ferris, Charles in No. 21-0075.
Mark W. Bennett, Bennett & Bennett, Houston, for Amici Curiae Bennett, Mark W., Haygood, Lane A.
Jane Kadirhan, Kadirhan Law Firm, Austin, Michael Gross, Gross & Esparza, P.L.L.C., San Antonio, Niles Stefan Illich, Scott H. Palmer, P.C., Addison, for Amicus Curiae Texas Criminal Defense Lawyers Association.
Justice Young delivered the opinion of the Court, in which Chief Justice Hecht, Justice Lehrmann, Justice Devine, Justice Blacklock, Justice Busby, Justice Bland, and Justice Huddle joined. These two cases, which we consolidated for briefing and argument, involve unrelated respondents—K.T. and C.F.—who were acquitted of driving while intoxicated, or DWI. Both respondents seek expunction of the records relating to their arrests. Texas law authorizes such expunctions unless "the offense for which the person was acquitted arose out of a criminal episode," Tex. Code Crim. Proc. art. 55.01(c), and defines "criminal episode" as "the commission of two or more offenses" under specified circumstances. Tex. Penal Code § 3.01. Each respondent had a previous DWI conviction from at least three years before the arrest that led to acquittal.
The State must make two separate showings to block respondents’ requested expunctions. First, to reach the minimum "commission of two ... offenses" required for a criminal episode to exist, id. , the State must establish that each respondent's second DWI arrest qualifies as the "commission" of that offense, despite the resulting acquittals. Second, the State must show that each respondent's prior conviction and later arrest were part of a common "criminal episode"—specifically, that two arrests for DWI are necessarily part of the same criminal episode even when the underlying events have no other relation to each other.
The petitioner in both cases, which we call "the State," is the Texas Department of Public Safety.
We hold that an acquittal cannot qualify as the "commission" of an offense. With only one "commission" for each respondent, there can be no "criminal episode" for either. Without a criminal episode, the exception to expunction does not apply. We therefore affirm the judgments below on this ground without reaching the second issue, which we reserve for a future case.
I
The material facts in each case are undisputed and essentially identical: Respondents K.T. and C.F. each has one misdemeanor DWI conviction and, more than three years later, one subsequent misdemeanor DWI acquittal. Both respondents filed petitions in the relevant trial court requesting expunction of the arrest records pertaining to their acquittals. Both cases present the same question of law relating to the availability of expunction under these circumstances. Separate trial courts ordered expunction of each respondent's records despite the State's objections. In Ex parte K.T. , a divided panel of the Second Court of Appeals affirmed. In Ex parte C.F. , the en banc Fifth Court of Appeals affirmed over a dissent.
At oral argument, counsel for C.F. moved to recaption the case to use only C.F.’s initials. We now grant that motion, which we carried with the case.
612 S.W.3d 111 (Tex. App.—Fort Worth 2020).
613 S.W.3d 276 (Tex. App.—Dallas 2020).
II
As we have repeatedly recognized, there is no constitutional right to expunction. Ex parte R.P.G.P. , 623 S.W.3d 313, 316 (Tex. 2021) ; In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). The cases before us therefore present only a question of statutory construction. The interaction of three provisions from two Texas statutes determines whether those in respondents’ position may expunge records relating to charges for which they have been acquitted.
First, the Code of Criminal Procedure provides a general entitlement to the expunction of arrest records when someone is later acquitted:
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 the person is tried for the offense for which the person was arrested and is acquitted by the trial court, except as provided by Subsection (c) ....
Tex. Code Crim. Proc. art. 55.01(a)(1)(A) (internal punctuation omitted).
Next, the exception to this general entitlement appears in article 55.01(c), which provides that
[a] court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
Finally, courts cannot apply the exception without confirming that, under the Penal Code's definition, a "criminal episode" has been formed in the first place:
In this chapter, "criminal episode" means 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, under the following circumstances:
(1) the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan; or
(2) the offenses are the repeated commission of the same or similar offenses.
When the State invokes the statutory exception to block access to expunction for someone who has been acquitted of an offense, these statutory provisions require the State first to establish that a "criminal episode" has in fact been formed. If so, the State must show that the acquittal at issue "arose out of" that "criminal episode."
III
We begin with whether a "criminal episode" has been formed in the first place. It is undisputed that a "criminal episode" cannot exist without at least two qualifying "offenses." It is likewise undisputed that the only potential offenses that could qualify here are each respondent's (1) single prior DWI conviction and (2) single DWI arrest that led to acquittal. The question before us is whether, as a matter of law, a single conviction and a single acquittal are legally sufficient to establish a "criminal episode" under Penal Code § 3.01.
A
1
The State contends that one conviction and one acquittal are sufficient. Most of the State's arguments, however, attack respondents’ contention that a criminal episode requires two convictions. As we describe in greater detail below, we agree with the State that a final conviction is not necessary to treat charged conduct as an "offense" when determining whether the article 55.01(c) exception to expunction—which incorporates § 3.01 ’s definition of criminal episode—applies. Article 55.01(c) ’s reference to "the offense for which the person was acquitted" would be incoherent if "offense" meant "conviction," for one cannot be convicted of an offense if one has been acquitted of that offense.
But rejecting respondents’ constrained reading of "offense" to mean only convictions does not equate to embracing the State's expansive reading that "offense" encompasses both acquittals and convictions. Article 55.01(c) does not separately define the term "criminal episode" but instead expressly incorporates the definition provided in Penal Code § 3.01. Section 3.01, in turn, requires the "commission of two or more offenses" to establish a "criminal episode." (Emphasis added.)
The Penal Code does not define the term "commission," so the ordinary meaning of that term governs our analysis. "Commission" is the "[a]ct of committing, doing, or performing; act of perpetrating...." Commission , Webster's International Dictionary (2d ed. 1953). Common sense and ordinary English usage both rebel at allowing the State to treat someone as the committer, doer, performer, or perpetrator of a crime after a jury's verdict of acquittal. With respect to their later arrests, the State did not meet its burden to show that K.T. and C.F. committed, did, performed, or perpetrated the offense of driving while intoxicated beyond a reasonable doubt. The right to trial by jury, and the sanctity of the resulting verdicts, are fundamental to our legal system. Absent clear language to the contrary, we cannot agree that the legislature would define "criminal episode" as the "commission" of multiple offenses if it wanted to include offenses where a jury has acquitted the defendant. Tex. Penal Code § 3.01.
K.T. was acquitted in a jury trial. C.F. had the right to a trial by jury, but instead accepted a bench trial, at which he was acquitted.
The State's approach would do more than subvert ordinary language like "commit" or "commission." It would lead to results that would startle not just legislators but ordinary Texans. The State has candidly acknowledged, for example, that its reading would require Texas courts to deem an unquestionably erroneous arrest—even one based on admittedly mistaken identity—as establishing the "commission" of an "offense" by the wrongly arrested citizen. Indeed, a false arrest springing from malice would constitute the "commission" of an offense by the victim of the false arrest , even if the government immediately corrects the error and punishes the officials who caused that arrest.
The legislature's use of "commission" forecloses such a scenario. That term's plain meaning focuses on the actions of the alleged perpetrator, not the actions of third parties like the law-enforcement officer doing the arresting. When the State fails to show that the arrestees committed particular conduct, such now-rejected allegations may not be treated as conduct that the arrestees did commit.
Article 55.01(a)(1)(A) also uses "commission" in a way that supports our reading. That provision authorizes expunction for someone "who has been placed under ... arrest for commission of [a crime]" and who then is acquitted. (Emphasis added.) Being "arrest[ed] for commission " of a crime sets out the reason that someone needs expunction—he was arrested but then was acquitted. The initial accusation is why he was arrested. Penal Code § 3.01, however, is tethered to the commission of a crime (which is defeated upon acquittal), not merely an "arrest for commission" of a crime.
Article 55.01 is thus premised on acquittals not being called "committed" offenses. As we discuss below, article 55.01(c) —the exception to expunction—accordingly does not even use the word "commission," but describes only "an offense for which a person is subsequently acquitted." The absence of "commission" is significant, and confirms our reading, because the whole point of article 55.01(c) is to bar expunction of records related to "offenses" that, because they led to acquittal, were not shown to have been committed.
2
The State claims that we must embrace its unlikely interpretation of "commission" under § 3.01 because article 55.01(c) otherwise becomes a "nullity." Specifically, the State argues that "for article 55.01(c) to apply, the offense for which the defendant is acquitted must have been ‘committed’—otherwise, it could not arise from a criminal episode as defined by section 3.01" since an offense that is not committed cannot "arise" from a criminal episode. We cannot embrace this reading because it misapprehends how § 3.01 and article 55.01 interact.
First, § 3.01 has but one role in expunction cases: to delineate whether a "criminal episode" exists. That question turns in part on identifying "the commission" of multiple offenses. But once a criminal episode has been formed, it does not matter whether an offense was "committed." Said differently, the State can block an expunction of an acquittal (which, as we discuss below, indeed can "arise from" an already-identified criminal episode). Doing so is the whole point of article 55.01(c). Once § 3.01 is satisfied, in other words, article 55.01(c) takes over—and article 55.01(c) does not address whether an offense was "committed."
Both text and context illustrate this relationship between the two provisions. Article 55.01(c) expressly conditions its use of "criminal episode" on how the Penal Code uses that term: unless the State can show "a criminal episode, as defined by Section 3.01, Penal Code ," the exception to expunction is impermissible. (Emphasis added.) The relevant language in § 3.01 was enacted in 1973. Article 55.01(c), which was enacted in 1999, does not modify § 3.01 ’s language, but borrows it. Article 55.01(c) directs courts to import § 3.01 ’s meaning into the expunction context—not to export expunction-specific meaning into § 3.01. The way to read these statutes together is to follow the legislative command to take § 3.01 as we find it.
See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 891 (codified at Tex. Penal Code § 3.01 ).
Act of June 18, 1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen. Laws 4279, 4280 (codified at Tex. Code Crim. Proc. art. 55.01 ).
Our analysis could end merely with the legislature's express command that courts not impose a bespoke reading on § 3.01 based on expunction-related concerns. But the legislature also had a very good reason for that command: to avoid interference with the substantive criminal law. After all, while article 55.01(c) exclusively concerns expunction, § 3.01 is an important criminal-law statute that contains the sole definition in Chapter 3 of the Penal Code, which is titled "Multiple Prosecutions." The tail would wag the dog if article 55.01(c) could transform the meaning of § 3.01. Caution is called for: " ‘[A]n expunction proceeding is civil in nature,’ yet it is in the criminal law where the consequences of our decision will be keenly felt." Ex parte R.P.G.P. , 623 S.W.3d 313, 334 (Tex. 2021) (Bland, J., dissenting) (alteration in original) (quoting State v. T.S.N. , 547 S.W.3d 617, 619 (Tex. 2018) ).
Hence, it is not surprising that the legislature itself emphasized that, however § 3.01 defines "criminal episode," article 55.01(c) must use that definition. That definition could change, of course, for reasons wholly unrelated to expunction. The legislature or the courts could modify § 3.01 ’s meaning or scope with criminal prosecutions and not expunction in mind. If that happens, article 55.01(c) includes a backstop. Beyond requiring the State to show a "criminal episode" as defined in § 3.01, article 55.01(c) has an independent requirement of its own: that "the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode."
This belt-and-suspenders approach—relying on § 3.01 but providing a backstop—does not make anything a nullity or create any surplusage. To the contrary, article 55.01(c) ’s language ensures that at least one conviction or unresolved charge is required to bar expunction of records relating to an acquittal no matter what happens vis-à-vis the details of § 3.01. Article 55.01(c) ’s requirement is less restrictive than § 3.01 ’s current definition, but it still is an independent statutory condition ready to take effect if necessary. Allowing for such a contingency is comparable to retaining a state constitutional provision even though the U.S. Supreme Court has given an analogous federal constitutional provision a more expansive scope.
State constitutional provisions still independently protect the right at issue even if federal law provides more protection. And if the Supreme Court's interpretation of the federal Constitution changes, the state Constitution, which may have appeared dormant, will quickly prove that it was not as superfluous as it may have seemed.
Our holding today addresses only the very first step of the analysis relating to the exception to expunction—the creation of the criminal episode under Penal Code § 3.01. Specifically, we hold that an acquittal cannot be leveraged into forming a criminal episode because an acquittal does not qualify as the "commission" of an "offense." Once the State properly identifies a criminal episode, however, § 3.01 does not play any further role in the expunction analysis.
Finally, the State is also mistaken to contend that offenses leading to acquittal cannot "arise from" a criminal episode under the ordinary definition of "commission." Acquitted offenses can still "arise from" the two categories of criminal episodes that § 3.01 describes. Imagine a defendant charged with robbing three banks during a spree, who is convicted of two but acquitted of the third. Or consider a defendant charged with robbing a house, kidnapping an occupant of the house, and arson of the house; he might likewise be convicted of the first two but acquitted of the third. In both scenarios, the third offense was not "committed." But that third offense nonetheless cannot be expunged under article 55.01(c) because that acquitted offense "arose from" the same criminal episode. Our recourse to the ordinary English meaning of the statutory text may allow more expunctions than the State prefers, but that hardly renders article 55.01(c) or any other provision a "nullity."
For all of these reasons, we must also respectfully disagree with our dissenting colleague. We perceive no surplusage or meaninglessness in article 55.01(c). But even if we were less sure, the proposed cure is worse than the disease. "Put to a choice ..., a court may well prefer ordinary meaning to an unusual meaning that will avoid surplusage." Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176 (2012). Reading "commission" of an offense to mean "acquittal" of that offense would, to put it mildly, be "unusual." "[W]ith careful regard to context," which we have sketched above, we believe that sounder "judgment and discretion" compel us to read the statutes as we do. Id.
We take no position on the underlying policy debate about how generous the expunction entitlement should be. The legislature certainly could conclude that once a person is convicted of an offense, the right to expunction must yield to the public's interest in access to subsequent arrest records—even for arrests that lead to acquittal, are wholly unrelated to the initial conviction, or even turn out to be wholly unfounded. The only question fit for the judiciary is to discern the policy that the legislature has enacted. We reiterate that the legislature may freely amend the statute. It can narrow (or broaden) its scope by amending the law—or by replacing it with a wholly new expunction statute.
* * *
To block the expunction of respondents’ arrest records, the State must show the "commission" of at least two offenses to establish a criminal episode. We hold that the State cannot count as a "commission" any "offense" for which respondents have been acquitted. Without the acquitted charges, the State has only one offense for each respondent, which is legally insufficient to form a "criminal episode." As a matter of law, therefore, the statutory exception does not apply. K.T. and C.F. are thus both entitled to the expunctions that they have sought.
To the extent that lower-court decisions that deny expunctions have relied on an acquittal to form the criminal episode, those decisions are disapproved. See, e.g., In re J.D.R. , No. 01-20-00161-CV, ––– S.W.3d ––––, ––––, 2022 WL 551276, at *1 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet.) ; Ex parte M.B.F. , 642 S.W.3d 928, 929-930 (Tex. App.—Waco 2022, no pet.) ; Mitchell v. State , No. 09-20-00060-CV, 2020 WL 6494209, at *1 (Tex. App.—Beaumont Nov. 5, 2020, pet. denied) ; Ex parte R.A.L. , No. 04-19-00479-CV, 2020 WL 557542, at *1 (Tex. App.—San Antonio Feb. 5, 2020, pet. denied) ; Ex parte F.T.K. , No. 13-16-00535-CV, 2018 WL 2440545, at *1 (Tex. App.—Corpus Christi–Edinburg May 31, 2018, no pet.) ; In re Expunction of J.B. , 564 S.W.3d 436 (Tex. App.—El Paso 2016, no pet.) ; Addicks v. State , No. 03-06-00114-CV, 2007 WL 844872, at *1 (Tex. App.—Austin Mar. 21, 2007, no pet.) ; Ex parte Baldivia , No. 07-05-0046-CV, 2007 WL 63373, at *1 (Tex. App.—Amarillo Jan. 10, 2007, no pet.).
B
Respondents agree that an acquittal is insufficient to form a criminal episode but would take the additional step of equating an offense's "commission" with an offense's conviction. We cannot go so far. It certainly is true that one convicted of a crime has "committed" that crime. But the statute is structured around a middle ground between acquittal and conviction. "Commission," as the statute uses that term, also encompasses offenses for which a person still can be prosecuted—that is to say, where a conviction remains possible. Penal Code § 3.02(a), which concerns joinder of prosecutions, reflects this point. That provision states that a "defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode."
The statutory structure precludes respondents’ reading. After defining "criminal episode" in § 3.01, the Penal Code immediately begins to apply that term in § 3.02 in a way that eliminates the conviction-only definition that respondents advance. As § 3.02 illustrates, offenses in as early as the prosecution stage can form a single criminal episode, so a "criminal episode" for that purpose must be able to exist before any convictions are even possible.
Article 55.01(c) of the Code of Criminal Procedure confirms this reading by stating that an acquitted offense cannot be expunged if "the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode." (Emphasis added.) See supra at 205.
Offenses still subject to prosecution have not reached a particular conclusion—conviction, acquittal, or anything else. Thus, while an acquittal cannot qualify as a predicate for a "criminal episode," charged conduct that has not yet led to acquittal can form part of a "criminal episode" and thus trigger Penal Code § 3.02 ’s authorization of "a single criminal action" for multiple charged offenses. These offenses are within the definition of a "criminal episode" for joint prosecution until, as a matter of law, that possibility has been negated.
This potential is what keeps Penal Code § 3.01 tethered to the actual "commission" of a crime.
Respondents’ reading would require expunction where the statute forbids it. For example, if only convictions can form a criminal episode, someone could expunge an acquitted offense even though two other offenses from the same incident or course of conduct remain subject to prosecution. If those prosecutions resulted in convictions, and if they formed a criminal episode, the acquittal could squarely fall within article 55.01(c) ’s exception to expunction (even though the State could not use that acquittal to establish the criminal episode's formation ). When there is a potential conviction, in other words, the lack of a conviction poses no barrier to that charge arising from a criminal episode.
We need not address today whether a charged offense leading to a disposition other than a conviction or an acquittal, such as deferred adjudication, can be a part of a criminal episode under § 3.01.
IV
Much of the State's argument in the cases before us has focused on the second question, on which the State must also prevail to warrant denial of expunction. That question asks whether two DWI offenses, separated by over three years, are sufficiently linked to form a common "criminal episode" under Penal Code § 3.01(2). That provision defines "criminal episode" as "the commission of two or more offenses" when "the offenses are the repeated commission of the same or similar offenses."
The parties agree that, if a criminal episode exists here, it is under Penal Code § 3.01(2).
As originally enacted in 1973, § 3.01 included only what now is codified as § 3.01(2) —"the repeated commission" of an offense. The provision currently codified as § 3.01(1) —involving offenses in "the same transaction" or "constitut[ing] a common scheme or plan"—was added in 1987. See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 891 (codified at Tex. Penal Code § 3.01 ); Act of May 22, 1987, 70th Leg., R.S., ch. 386, § 1, 1987 Tex. Gen. Laws 1900 (codified at Tex. Penal Code § 3.01 ).
We decline to resolve this question. We acknowledge that this issue could provide an independent basis for our holding because, even if we had held that the DWI acquittal could qualify as the "commission" of an offense, a "criminal episode" would still not exist if the original conviction and the subsequent acquittal were insufficiently linked to qualify as "the repeated commission" of DWI. We also recognize that the Fifth Court, sitting en banc in C.F. , relied on this ground, which remains the law in that appellate district, while other courts of appeals have rejected that reading.
613 S.W.3d at 282–84 (advancing multiple reasons that a "criminal episode" under § 3.01(2) cannot be formed from events that share no links other than being the same charge); cf. id. at 289–90 (Evans, J., dissenting) (disputing the majority's argument on this point).
When considering the entitlement to expunction, several courts have concluded that offenses require no temporal or factual nexus to form or arise from a common "criminal episode" under § 3.01(2). See, e.g., State v. D.D.M. , No. 14-20-00426-CV, 2022 WL 906002, at *4 (Tex. App.—Houston [14th Dist.] Mar. 29, 2022, no pet. h.) ; In re J.D.R. , No. 01-20-00161-CV, ––– S.W.3d ––––, ––––, 2022 WL 551276, at *4 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet.) ; Ex parte M.B.F. , 642 S.W.3d 928, 930-31 (Tex. App.—Waco 2022, no pet.) ; In re T.D.N. , 620 S.W.3d 433, 439 (Tex. App.—El Paso 2020, no pet.) ; Ex parte R.A.L. , No. 04-19-00479-CV, 2020 WL 557542, at *2 (Tex. App.—San Antonio Feb. 5, 2020, pet. denied).
We nonetheless conclude that it is more prudent to await another case that presents the issue than to address the existing conflict now. The outcome of today's disputes would not change regardless of how we resolved this second question. Moreover, respondents’ rationale for affirmance did not contest the State's reading of § 3.01(2) or defend the Fifth Court's ruling in C.F.’s favor on this ground. The State understandably did not press as far as it might have in defending its own position; it was deprived of adversarial briefing that challenged whether § 3.01(2) includes any limitation other than that the committed offenses be similar. Finally, the question is important and will affect many other Texans, so we are wary of addressing it under these circumstances. We therefore will await another case in which this question proves dispositive and is the focus of the parties’ briefing.
We emphasize, however, that we take no position and give no hint regarding the merits of the issue that we decline to address today. Substantial arguments support both positions—the one advanced by the State and the one advanced by the en banc majority in the Fifth Court. We will consider them if and when a case implicating those arguments comes to us.
The dissent's brief discussion of this issue, of course, does not predict how the Court will ultimately rule. We agree with the dissent on one notable point, however—the relevance of the Court of Criminal Appeals’ cases. See post at 211–12 (quoting Wilson v. State , 448 S.W.3d 418, 424 (Tex. Crim. App. 2014) ). Wilson addressed Penal Code § 42.07(a)(4), not § 3.01 ; we express no view as to whether that context is portable or instructive. But we agree that courts and parties should pay close attention to the Court of Criminal Appeals’ case law in this context because—as noted above—what constitutes a "criminal episode" is primarily relevant in criminal cases.
V
Respondents have established their entitlement to expunction. No exception applies. The judgments below are accordingly affirmed.
Justice Boyd filed a dissenting opinion.
Justice Boyd, dissenting.
In each of these two otherwise unrelated cases, the respondents were arrested and convicted of driving while intoxicated and then, more than three years later, were again arrested for driving while intoxicated but were tried and acquitted. The Court holds that article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure entitles the respondents to have the records of their second DWI arrest expunged, and that article 55.01(c) ’s exception to expungement does not apply. Because the Court's construction renders half of article 55.01(c) meaningless, I disagree and respectfully dissent.
Article 55.01(a)(1)(A) entitles a person who is arrested "for the commission of" a criminal offense to have the arrest records expunged if the person is tried and acquitted. TEX. CODE CRIM. PROC. art. 55.01(a)(1)(A). Under the exception in article 55.01(c), however, expunction is not available if:
Article 55.01 also permits expunction if the person is convicted but pardoned or—under certain circumstances—the person is released and the charge is dismissed. Tex. Code Crim. Proc. art. 55.01(a)(1)(B), (a)(2).
(1) the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and
(2) the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
Id. art. 55.01(c).
Section 3.01 of the Penal Code defines "criminal episode" to include "the commission of two or more offenses" if "the offenses are the repeated commission of the same or similar offenses." TEX. PENAL CODE § 3.01(2). Substituting section 3.01(2) ’s definition for the phrase "criminal episode" in article 55.01(c) ’s exception, a person who is arrested for the commission of a crime but acquitted cannot have the arrest records expunged if:
A "criminal episode" also includes the "commission of two or more offenses" if "the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan." Tex. Penal Code § 3.01(1).
(1) the offense for which the person was acquitted arose out of [the repeated commission of two or more same or similar offenses], and
(2) the person was convicted of or remains subject to prosecution for at least one other offense occurring during [the repeated commission of two or more same or similar offenses].
TEX. CODE CRIM. PROC. art. 55.01(c) ; TEX. PENAL CODE § 3.01(2).
Focusing on the exception's first requirement, the Court construes the term "commission" to mean that the person was convicted of or remains subject to prosecution for the offense. Ante at ––––. Incorporating the Court's construction into article 55.01(c) ’s exception, the exception's first requirement is satisfied only if:
the offense for which the person was acquitted arose out of the repeated "commission" of two or more same or similar offenses for which the person was convicted or remains subject to prosecution.
In other words, according to the Court, a criminal episode exists, article 55.01(c) ’s exception applies, and expunction is unavailable only if the person was accused of committing at least three separate same or similar offenses, the person was acquitted on one, and the person was convicted or remains subject to prosecution for the other two. Ante at ––––. Here, because the respondents were convicted of or remain subject to prosecution for only one DWI offense, the Court holds that a criminal episode never existed and the exception's first requirement is not satisfied. Ante at ––––.
But the Court's construction of the exception's first requirement renders the exception's second requirement nonsensical and meaningless. As explained, the exception's second requirement, incorporating section 3.01(2) ’s definition of "criminal episode," requires that:
the person was convicted of or remains subject to prosecution for at least one other offense occurring during [the repeated commission of two or more same or similar offenses].
TEX. CODE CRIM. PROC. art. 55.01(c) (emphasis added); TEX. PENAL CODE § 3.01(2). Under the Court's construction of the term "commission," the exception's second requirement requires that:
the person was convicted of or remains subject to prosecution for at least one other offense occurring during the repeated commission of two or more same or similar offenses for which the person was convicted or remains subject to prosecution.
Of course, if the person was convicted of or remains subject to prosecution for "two or more" same or similar offenses (and thus a criminal episode exists under the Court's construction of the exception's first requirement), then it will always be the case that (as the second requirement requires) the person was convicted of or remains subject to prosecution for "at least one" other offense that occurred during the commission of two same or similar offenses. The Court's construction renders article 55.01(c) ’s second requirement meaningless. See In re CenterPoint Energy Hous. Elec., LLC , 629 S.W.3d 149, 159 (Tex. 2021) (stating courts "must give effect to all words of a statute and not treat any language as surplusage").
For this reason, almost every court of appeals that has addressed the issue has rejected the Court's construction of the term "commission" and held instead that a criminal episode exists when a person is acquitted for the same or similar offense for which the person was on at least one occasion previously convicted. See In re J.D.R. , No. 01-20-00161-CV, ––– S.W.3d ––––, ––––, 2022 WL 551276, at *5 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet.) (holding article 55.01(c) ’s exception applied to defendant's 2014 acquittal for sexual assault of a child because he remained subject to prosecution for one earlier offense of indecency with a child by contact); Ex parte M.B.F. , 642 S.W.3d 928, 931-32 (Tex. App.—Waco 2022, no pet.) (holding exception applied to defendant's 2007 acquittal for DWI because defendant was once convicted of DWI in 2000); In re T.D.N. , 620 S.W.3d 433, 442–43 (Tex. App.—El Paso 2020, pet. denied) (holding exception applied to offense for which defendant was acquitted because defendant was previously convicted of one same or similar offense); In re M.T.R. , 606 S.W.3d 288, 293–94 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (holding exception applied to defendant's 2015 DWI acquittal because defendant was once convicted of boating while intoxicated in 2012); Ex parte R.A.L. , No. 04-19-00479-CV, 2020 WL 557542, at *2 (Tex. App.—San Antonio 2020, pet. denied) (same, involving two DWI offenses); Ex parte J.A.B. , 592 S.W.3d 165, 169 (Tex. App.—San Antonio 2019, no pet.) (holding exception applied to defendant's 2016 acquittal for assault of a public servant because defendant was convicted of the same offense in 2010); Ex parte Rios , No. 04-19-00149-CV, 2019 WL 4280082, at *3 (Tex. App.—San Antonio 2019, no pet.) (same, involving two DWI offenses); In re Expunction of J.B. , 564 S.W.3d 436, 441 (Tex. App.—El Paso 2016, no pet.) (holding exception applied to defendant's acquittal for aggravated assault because defendant remained subject to prosecution for one retaliation offense).
As the El Paso court explained in T.D.N. , because article 55.01(c) requires only that the person was convicted of or remains subject to prosecution for at least one other offense , "the very provision" of article 55.01(c) "that adopts the definition of a ‘criminal episode’ also allows for a single conviction, or even the possibility of conviction, to block an expunction." 620 S.W.3d at 443. So to construe the exception to require that the defendant be convicted of or still subject to prosecution for "two or more" same or similar offenses, "we would have to ignore" the language in the exception's second requirement. Id.
To be fair, the Court does not completely "ignore" the exception's second requirement of "at least one" conviction. Instead, it suggests that perhaps the legislature included the requirement as a "backstop" to implement a "belt-and-suspenders" approach to ensure that "at least one" conviction will be required in case someday the legislature amends section 3.01(2) ’s definition of "criminal episode" or a court construes that definition differently than the Court construes it today. Ante at ––––. I find that view of the legislative process implausible at best. And in any event, at least unless and until the legislature amends section 3.01(2), the construction of article 55.01(c) the Court adopts today renders the exception's second requirement presently nonsensical and meaningless.
I would instead construe the statutes’ language together and conclude that an arrest "for the commission " of an offense, as article 55.01(a)(1)(A) uses that phrase, refers to the "commission" of one of "two or more" same or similar offenses that constitute a "criminal episode" under section 3.01(2). Under article 55.01(c) ’s exception, a person who is acquitted of the "commission" of the offense may not have the arrest records expunged if the person was convicted of or remains subject to prosecution for "at least one other offense occurring during [the repeated commission of two or more same or similar offenses]." TEX. CODE CRIM. PROC. art. 55.01(c) ; TEX. PENAL CODE § 3.01(2).
Finally, the Court declines to resolve the issue of whether two arrests for the same or similar offenses may be so far apart in time that they cannot be considered part of a single criminal episode. Ante at ––––. I would reach the issue and reject this temporal limitation based on the statutes’ plain language. Section 3.01 defines "criminal episode" as "the commission of two or more offenses" if (1) "the offenses are committed pursuant to the same transaction or pursuant to two or more transactions that are connected or constitute a common scheme or plan," or (2) "the offenses are the repeated commission of the same or similar offenses." TEX. PENAL CODE § 3.01. Here, the respondents were arrested for the commission of two "same or similar" offenses, so they need not have been committed "pursuant to the same transaction" or as part of "a common scheme or plan." And section 3.01(2) does not impose any temporal, geographical, or other limitations, besides the requirement that they be the "same or similar" offenses. See T.D.N. , 620 S.W.3d at 439 ("[T]he legislature has imposed no requirement in Section 3.01(2) that the two ‘repeated’ offenses must involve the same victim, be close in temporal or geographic proximity, or were committed in the same or similar fashion."); see also Wilson v. State , 448 S.W.3d 418, 424 (Tex. Crim. App. 2014) ("The communications’ periodic frequency or the temporal relationship of each communication are characteristics that may further describe the communications’ nature, but we do not find those characteristics necessary to the definition of repeated.").
I would therefore reverse the court of appeals’ judgments affirming the respondents’ expunctions in these cases. Because the Court does not, I respectfully dissent.