Summary
holding 2013 and 2017 DWIs are not part of same "criminal episode" for purposes of expunction under Article 55.01 because petitioner was acquitted of 2017 DWI and acquittal judgment demonstrated "State failed to meet its evidentiary burden to prove that she committed DWI in connection with her 2017 arrest;" holding "the Legislature did not mean to prohibit expunction of the arrest records of an acquitted offense simply because the acquitted person had once before been convicted of a separate, but same or similar type, of offense."
Summary of this case from In re The Expunction of J.D.R.Opinion
No. 02-19-00376-CV
10-22-2020
EX PARTE K.T.
I. INTRODUCTION
In two issues, the Texas Department of Public Safety (the Department) challenges the trial court's "Order Granting Expunction of Criminal Records," which expunged the records of appellee K.T.'s 2017 driving-while-intoxicated arrest because she had been acquitted of the offense. The Department argues that K.T. was not entitled to expunction because she has a 2013 DWI conviction and, in the Department's view, the governing expunction statute prohibits the expunction of arrest records relating to an acquitted offense when the acquitted person has once before been convicted of the same or similar offense even if the two offenses arise out of separate arrests. We cannot agree with the Department's construction of this part of the expunction statute; therefore, we affirm the trial court's judgment expunging all records relating to K.T.'s 2017 DWI arrest.
II. BACKGROUND
The facts are undisputed. In 2013, K.T. was charged with DWI, a Class A misdemeanor under the Penal Code. See Tex. Penal Code Ann. § 49.04(d). K.T. pled guilty to a Class B misdemeanor and was placed on community supervision. K.T. successfully completed her term of community supervision in 2015 and was discharged.
In 2017, K.T. was arrested and charged again with DWI. A jury found K.T. not guilty of this alleged DWI. The "Judgment of Acquittal by Jury" notified K.T., pursuant to Code of Criminal Procedure Article 55.02, that "[ ]she may have a right, upon proper motion, to have an expunction of the records and files pertaining to the charge for which [ ]she was acquitted."
After her acquittal, K.T. filed a "Petition for Expunction of Criminal Records" pertaining to her 2017 DWI arrest. The petition alleged that she had been acquitted of the charge that resulted from the 2017 DWI arrest and that she "was not convicted of and [did] not remain subject to prosecution for any another offense arising out of the same criminal episode." The petition did not mention K.T.'s 2013 DWI conviction. See Tex. Code Crim. Proc. Ann. art. 55.02, § 2(a), (b) (setting forth required information for expunction application, which does not include prior arrests for same or similar offenses).
The Department did not appear for the hearing on the expunction petition, though a representative of the Denton County District Attorney's Office did. The trial court ordered that "all records and files pertaining to the [2017 DWI] arrests[ ] ... be expunged." The expunction order also recited that K.T. "was not convicted of and does not remain subject to prosecution for any [other] offense arising out of the same criminal episode."
The Department filed a timely motion for new trial. See Tex. R. Civ. P. 320, 329b(a). In essence, the Department contended that K.T. was not entitled to have the 2017 DWI arrest records expunged, even though she had been acquitted, because she had been convicted once before of the same type of offense—the 2013 DWI. The Department argued that the expunction statute incorporates Penal Code Section 3.01's definition of "criminal episode," which is defined expansively:
A criminal episode is defined as the commission of two or more offenses when "the offenses are the repeated commission of the same or similar offenses. " Tex. Penal Code § 3.01(2) (emphasis added). Here, [K.T.] was charged with Driving While Intoxicated 2nd, the repeated commission of the same or similar offense as the prior DWI conviction. The acquitted offense arose out of the same criminal episode because it was the "repeated commission of the same or similar offenses[.]" Tex. Penal Code § 3.01(2). Although the Petitioner was acquitted of Driving While Intoxicated 2nd, she was convicted of the prior charge of Driving While Intoxicated. Accordingly, the court "may not order the expunction of records and files relating to [the] arrest" for the acquitted offense. Tex. Code Crim. Proc. Art. 55.01(c) (emphasis added).
The trial court conducted a hearing on the Department's motion for new trial. At that hearing, the trial court admitted into evidence the complaint, the information, the "Judgment of Community Supervision," and the "Discharge from Community Supervision" from K.T.'s 2013 DWI conviction. Otherwise, the hearing consisted of the parties' legal arguments.
The trial court denied the Department's motion for new trial, stating in its order that "the evidence does not support the conclusion that the acquittal expunction granted herein was prohibited by [Article] 55.01(c)." The Department then requested, and the trial court made, findings of fact and conclusions of law. The findings recite the facts outlined above about K.T.'s two DWI arrests, her prior conviction, the judgment of acquittal, the expunction order, and the Department's motion for new trial. The trial court concluded that because K.T. had not committed the 2017 DWI, based on the jury's not guilty finding, it was not included in Section 3.01(2)'s definition of a criminal episode—the commission of two or more offenses when "the offenses are the repeated commission of the same or similar offenses":
14. Texas Penal Code 3.01 requires the commission of two offenses prior to the formation of a criminal episode. The conviction in [the 2013 DWI] is one commission of an offense. However, the acquittal in [the 2017 DWI] is not a "repeated commission" of the same or similar offense.
15. The Department's assertion that the arrest for an offense is the equivalent of the commission of the offense is incorrect as a matter of law.
16. Accordingly, the Court rejects the Department's assertion that [the 2017 DWI] is part of the same criminal episode as [the 2013 DWI].
Tex. Penal Code Ann. § 3.01(2). Thus, the trial court denied the Department's new-trial motion because "[t]he ‘Article 55.01(c) exception to acquittal expunction entitlement does not apply.’ "
III. ERROR PRESERVATION
Before we review the Department's appellate issues, we address K.T.'s contention that the Department has failed to preserve error by failing to either request additional or amended findings and conclusions or by failing to object to the findings and conclusions that the trial court made. See Tex. R. App. P. 33.1 (setting out procedure for preserving appellate complaint); Tex. R. Civ. P. 298 (setting out procedure for requesting additional or amended findings). We disagree with K.T.
First, in its motion for new trial, the Department objected to a construction of the statute that would allow expunction of K.T.'s 2017 DWI arrest records; not only did the trial court deny the Department's motion raising that argument, it expressly rejected the Department's proposed construction of Article 55.01(c) in its conclusions of law. The Department thus satisfied the requirements of Rule 33.1 by bringing its statutory argument to the trial court's attention and obtaining a ruling. See In re Kajima Int'l, Inc. , 139 S.W.3d 107, 110 (Tex. App.—Corpus Christi–Edinburg 2004, orig. proceeding). The Department was not required to engage in an exercise in futility by reasserting the same argument the trial court had already rejected.
Even if the Department had not complied with Rule 33.1—because this case involves no factual disputes and turns solely on the legal issue of the construction of a statute and the conclusions of law explaining that construction—our authority to review conclusions of law de novo obviates the need for the Department to follow traditional error-preservation procedure in the trial court. See Trelltex, Inc. v. Intecx, L.L.C. , 494 S.W.3d 781, 786 (Tex. App.—Houston [14th Dist.] 2016, no pet.) ("Nor was it necessary for Texcel to take exception to the trial court's adverse conclusion of law that Texcel had failed to prove its defense in order to challenge that conclusion on appeal."); Argo Data Res. Corp. v. Shagrithaya , 380 S.W.3d 249, 264 (Tex. App.—Dallas 2012, pet. denied) ("We are not obligated to give deference to the trial court's legal conclusions and, as the arbiter of the law, we have the duty to evaluate those conclusions independently."); Sammons v. Elder , 940 S.W.2d 276, 280 (Tex. App.—Waco 1997, writ denied) (stating that because appellate courts may always review conclusions of law, former Rule of Appellate Procedure 52(a) did not require an objection to a conclusion of law as a predicate to appellate review); Sears, Roebuck & Co. v. Nichols , 819 S.W.2d 900, 903 (Tex. App.—Houston [14th Dist.] 1991, writ denied) ("Conclusions of law are always reviewable by an appellate court."); W. Wendell Hall et al., Hall's Standards of Review in Texas , 50 St. Mary's L.J. 1104, 1343 (2019) (stating that " ‘conclusions of law in a nonjury trial are reviewable ... [even] without preservation’ under Texas Rule of Appellate Procedure 33.1"). Nor was there any need for the Department to request any additional fact findings in the absence of any factual dispute. See Tex. R. Civ. P. 298 ; Trelltex , 494 S.W.3d at 785–86 (stating that trial court found underlying facts relevant to limitations defense because "[n]o party ha[d] contended that any other disputed facts needed to be resolved in order to determine whether [appellee's] claims for breach of contract regarding those underpayments were barred by limitations. For these reasons, no request for additional findings was necessary to preserve [appellant's] limitations issue for appellate review").
Accordingly, we hold that the Department preserved any error arising from the trial court's ruling, and we will address the Department's issues.
IV. ARTICLE 55.01(C) CONSTRUCTION
In its two issues, the Department argues that K.T. is not entitled to an expunction of her acquitted charge under Article 55.01(c) and, therefore, that the evidence is legally insufficient to conclude that K.T. was entitled to an expunction.
A. STANDARD OF REVIEW
We review the ruling on a petition for expunction under an abuse-of-discretion standard. State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018). Under this standard, we afford no deference to the trial court's legal determinations because a court has no discretion in deciding what the law is or in applying it to the facts. Id. Thus, we review de novo the trial court's legal conclusions made as part of the expunction determination. Id. Here, "the trial court's ruling on the expunction request hinge[s] on a question of law because it require[s] the interpretation of [A]rticle 55.01; therefore, it is subject to de novo review." Id.
B. STATUTORY-CONSTRUCTION LAW
We analyze statutes "as a cohesive, contextual whole" with the goal of effectuating the Legislature's intent, employing the presumption that the Legislature intended a just and reasonable result. Id. We must apply 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 ; see Tex. Gov't Code Ann. § 311.011(b) ("Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly."). We presume that when enacting a statute, the Legislature intended to comply with the United States and Texas Constitutions, to make the entire statute effective, to achieve feasible execution, and to favor the public interest over any private interest. Tex. Gov't Code Ann. § 311.021 ; see also Tex. Penal Code Ann. § 1.05(b) (providing that Government Code Sections 311.011 and 311.021, part of the Code Construction Act, apply to the Penal Code "[u]nless a different construction is required by the context"). Grammar and punctuation rules can also inform proper construction. See Tex. Gov't Code Ann. § 311.011(a) ("Words and phrases shall be read in context and construed according to the rules of grammar and common usage."); Tex. Health Presbyterian Hosp. of Denton v. D.A. , 569 S.W.3d 126, 132 (Tex. 2018). Finally, we must liberally construe the Code of Criminal Procedure "to attain the objects intended by the Legislature: [t]he prevention, suppression, and punishment of crime." Tex. Code Crim. Proc. Ann. art. 1.26 ; see also Tex. Penal Code Ann. § 1.05(a) (eschewing strict construction of Penal Code and requiring construction of its terms "according to the[ir] fair import ..., to promote justice and effect the [Penal Code's] objectives").
C. STATUTORY TEXTS
Code of Criminal Procedure Article 55.01(a) provides that a person arrested for 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 [s]ubsection (c)." Tex. Code Crim. Proc. Ann. art. 55.01(a)(1)(A). Subsection (c) further 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.
Id. art. 55.01(c).
Penal Code Section 3.01 defines a 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, 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.
Tex. Penal Code Ann. § 3.01. We must decide, therefore, what the Legislature meant by referring to Penal Code Section 3.01 in Article 55.01(c). We hold that the Legislature did not mean to prohibit expunction of the arrest records of an acquitted offense simply because the acquitted person had once before been convicted of a separate, but same or similar type, of offense.
D. ANALYSIS
Expunction is a statutory privilege, not a right. In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). The purpose of the expunction statute is to protect wrongfully accused persons from inquiries about their arrests but not to eradicate all evidence of wrongful conduct. Id. That the Legislature has provided for expunction under "limited, specified circumstances" shows its intent to under those circumstances "free persons from the permanent shadow and burden of an arrest record, even while requiring arrest records to be maintained for use in subsequent punishment proceedings[,] and to document and deter recidivism." T.S.N. , 547 S.W.3d at 623 ; see also Tex. Penal Code Ann. § 1.02(4) (listing purposes and objectives of the Penal Code, including "to safeguard conduct that is without guilt from condemnation as criminal").
In construing Article 55.01(c), we rely on the supreme court's guidance and approach to construing Article 55.01(a). See, e.g., T.S.N. , 547 S.W.3d at 621–23 ; State Bar of Tex. , 440 S.W.3d at 624–27 ; Harris Cty. Dist. Attorney's Office v. J.T.S. , 807 S.W.2d 572, 573–74 (Tex. 1991). In T.S.N. , the supreme court held that Article 55.01's expunction scheme is neither completely arrest-based, nor offense-based. 547 S.W.3d at 623. In so holding, it explained that "subsection (a)(1) concerns acquittals and pardons, with clear instructions provided as to multiple offense arrests under subsection (c)." Id.
Article 55.01(c) refers directly to Penal Code Section 3.01's definition of a "criminal episode," which includes "the commission of two or more offenses ... [that] are the repeated commission of the same or similar offenses." Tex. Penal Code Ann. § 3.01(2) (emphasis added). The word commission is not defined in the Penal Code, but the Penal Code uses the phrase "commission of" in defining the elements of some offenses. See, e.g., id. § 22.02(a)(2) (aggravated assault with a deadly weapon). The word's generally accepted meaning is "the act of committing, performing, or doing." Webster's Third New Int'l Dictionary 457 (2002); see also Clinton v. State , 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) ("When determining the fair, objective meaning of an undefined statutory term, our Court may consult standard dictionaries."). Black's Law Dictionary defines the root verb commit as "[t]o perpetrate (a crime)," and Webster's defines it as "to do or perform." Commit , Black's Law Dictionary (11th ed. 2019); Webster's Third New Int'l Dictionary 457 (2002). Thus, we conclude that the use of the word commission in this context contemplates its commonly understood meaning of the actual performance of at least two "same or similar offenses." Tex. Penal Code Ann. § 3.01(2).
To prove "commission of" an offense, the State must prove each element of that offense beyond a reasonable doubt. See Tex. Code Crim. Proc. Ann. art. 38.03 ; Tex. Penal Code Ann. § 2.01. That a person has been arrested, confined, indicted for, or otherwise charged with an offense does not allow an inference of guilt at trial. See Tex. Code Crim. Proc. Ann. art. 38.03 ; Tex. Penal Code Ann. § 2.01. Here, K.T. showed via her acquittal judgment that the State failed to meet its evidentiary burden to prove that she committed DWI in connection with her 2017 arrest. Therefore, there is no evidence in the record that K.T. repeatedly committed DWI; instead, the record shows that she has "commi[tted]" only the 2013 DWI. See Webster's Third New Int'l Dictionary 1924 (2002) (defining "repeated" as "renewed or recurring again and again" and "done ... again").
The Department's construction of Article 55.01(c)'s incorporation of Section 3.01(2) attempts to add words to the statute's plain language. The Department would read Section 3.01(2) to include in a criminal episode "the repeated [arrest for or] commission of the same or similar offenses." But to read these additional words into the statute would deviate from the plain meaning of the word commission intentionally used by the Legislature. Additionally, the Department's construction fails to take into account the expunction statute's purpose as well as the Penal Code's directives against strict construction and in favor of a construction that safeguards conduct that is without guilt from being condemned as criminal. See Tex. Penal Code Ann. §§ 1.02(4), 1.05(a) ; T.S.N. , 547 S.W.3d at 623 ; see also Tex. Code Crim. Proc. Ann. art. 37.12 (providing that when "acquitted, the defendant shall be at once discharged from all further liability upon the charge for which he was tried"); Ex parte Ferris , No. 05-19-00835-CV, 2020 WL 5868217, at *4–5 (Tex. App.—Dallas Oct. 2, 2020, no pet. h.) (en banc) (holding that Department's construction of term "criminal episode" as used in Section 55.01(c) "would lead to absurd results in the context of expunction"); cf., e.g., Brinegar v. United States , 338 U.S. 160, 166–71, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) (holding that officer's prior knowledge of suspect's illegal liquor-running activities, including officer's prior arrest of suspect, could be considered in establishing probable cause for subsequent stop and arrest for liquor running); 2 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment , § 3.2(d) (6th ed. 2020) (discussing when prior arrest or prior conviction is properly considered in probable-cause determination and discussing that prior arrest may be considered more relevant when for a similar offense).
The Department relies on opinions from our sister courts of appeals that come to the same conclusion as the Department. See Ex parte J.A.B. , 592 S.W.3d 165, 169 (Tex. App.—San Antonio 2019, no pet.) ; Ex parte Rios , No. 04-19-00149-CV, 2019 WL 4280082, at *2–3 (Tex. App.—San Antonio Sept. 11, 2019, no pet.) (mem. op.) ; see also In re Expunction of T.D.N. , No. 08-19-00164-CV, ––– S.W.3d ––––, –––– – ––––, 2020 WL 5627222, at *2–6 (Tex. App.—El Paso Sept. 21, 2020, no pet. h.) ; In re M.T.R. , 606 S.W.3d 288, 292–94 (Tex. App.—Houston [1st Dist.] 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). The San Antonio cases, as well as the El Paso and Houston First cases that were decided after briefing in this case, rely on criminal-case opinions holding that Penal Code Section 3.01(2) "does not impose a particular time frame within which the same or similar offenses must be repeated." See Waddell v. State , 456 S.W.3d 366, 369 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.) ; Green v. State , 242 S.W.3d 215, 219–20 (Tex. App.—Beaumont 2007, no pet.) ; Baker v. State , 107 S.W.3d 671, 673 (Tex. App.—San Antonio 2003, no pet.) ; Guidry v. State , 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi–Edinburg 1995, pet. ref'd) ; see also 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."). But those criminal cases are inapposite; in all of them, the appellants had been convicted—either by a jury or on their own guilty pleas—of two or more offenses arising out of the same criminal episode as defined in Section 3.01(2). Waddell , 456 S.W.3d at 367 ; Green , 242 S.W.3d at 217 ; Baker , 107 S.W.3d at 672 ; Guidry , 909 S.W.2d at 584–85. None of these cases hold that an acquitted offense and a single prior conviction for the same or similar type of offense constitutes the "repeated commission" of the same or similar offense. For that reason, these underlying cases should not inform our construction of Section 3.01's use in Article 55.01(c). Thus, we must respectfully disagree with the courts holding that a single prior conviction for the same or similar offense bars expunction of an acquitted offense.
We decline to ascribe any precedential meaning to the supreme court's denial of the petition in R.A.L. See Loram Maint. of Way, Inc. v. Ianni , 210 S.W.3d 593, 596 (Tex. 2006) ("[D]eclining to review a case is not evidence that the Court agrees with the law as decided by the court of appeals.").
Only the El Paso case, T.D.N. , addresses whether one acquittal and one conviction for the same or similar offense constitute the "repeated commission" of the same or similar type of offense under Article 55.01(c). That court pointed to "express language in Article 55.01(c) that allows for a single conviction to establish the predicate for a ‘criminal episode,’ " holding that "the very provision that adopts the definition of a ‘criminal episode’ also allows for a single conviction, or even the possibility of a conviction, to block an expunction." T.D.N. , ––– S.W.3d at –––– – ––––, 2020 WL 5627222, at *5–6. But this analysis ignores that the definition in Penal Code Section 3.01(2) —expressly incorporated into Article 55.01(c) —requires a showing that at least two offenses were committed and that in a case such as this one, when the evidence shows one acquittal and only one conviction for the same or similar type offense, there is no repeated commission of the same or similar type offense. Accordingly, we cannot adopt the El Paso court's reasoning contrary to the statutes' plain language.
As the supreme court did in T.S.N. , we also look to other parts of the expunction scheme, including Article 55.02, and conclude that the expunction chapter as a whole supports our construction of subsection (c)'s plain language. See 547 S.W.3d at 620, 624 (looking to Article 55.02 in construing meaning of Article 55.01 ). For example, Article 55.02, Section 2(b), which lists the items that must be included in an expunction application, does not require a person to include any information regarding convictions for prior, similar offenses; instead, it requires information only about the arrest for the acquitted offense. Tex. Code Crim. Proc. Ann. art. 55.02, § 2(b).
The Department, on the other hand, points to parts of subsection (a)(2) of Article 55.01 to support its construction. In subsection (a)(2), the Legislature provided for the expunction of arrest records for a charge that is dismissed or quashed as a result of participation in a veteran's-court or mental-health-court program but only for the first charged offense disposed of in this way. Id. art. 55.01(a)(2)(A)(ii)(a), (b), (a-3)(1), (a-4)(1). The Department argues that this limitation on additional expunctions of this type shows that the Legislature was concerned with deterring the repeated commission of offenses. But this argument ignores the specific purposes and functions of these two types of courts. The mental-health court was created "to integrate treatment services for mental illness in the processing of cases in the judicial system, and thereby divert people with mental illness away from the criminal justice system and into treatment." S. Research Ctr., Bill Analysis, H.B. 2609, 78th Leg., R.S. (2003). And the veteran's-court program was created to assist current or former United States armed forces members charged with crimes whose criminal conduct was "materially affected" by "an injury or illness that resulted from the defendant's military service in a combat zone or hazardous area." Bill Summary, S.B. 1940, 81st Leg., R.S. (2009). Allowing subsequent expunctions in such cases would frustrate the very purpose of these diversionary programs. Thus, these factually distinguishable limitations on subsequent expunctions do not inform our construction of Article 55.01(c) under the facts presented here.
The Department also points to Alcoholic Beverage Code Section 106.12, which allows a minor who has been convicted of only one offense under that code to have the records of that conviction expunged when the minor turns twenty-one. Tex. Alco. Bev. Code Ann. § 106.12. Subsequent juvenile convictions under that code cannot be expunged. Id. But that section is likewise inapposite to our analysis because Article 55.01(a)(1) deals with acquittals, not subsequent convictions.
The Department suggests that we should interpret subsection (c) to fulfill the purpose of excluding repeat offenders of the same or similar offenses from having their records expunged so as to discourage recidivism. But this argument ignores the plain language of Penal Code Section 3.01 and Article 55.01(c), as well as the context in which subsection (c) was enacted. See S. Research Ctr., Bill Analysis, Tex. C.S.S.B. 840, 76th Leg., R.S. (1999) (stating that the purpose of the 1999 amendments to Article 55.01 that added subsection (c) was to provide for the automatic expunction of certain expunction records); see also Entergy Gulf States, Inc. v. Summers , 282 S.W.3d 433, 442–44 (Tex. 2009) (op. on reh'g) (explaining that court should not consult extrinsic aids such as legislative history when statutory language is unambiguous but addressing and overruling respondent's extrinsic-evidence arguments contrary to statute's plain language on denial of rehearing motion).
The plain language of subsection (c) prohibits the expunction of the arrest record for an acquitted offense if that acquittal arose from a "criminal episode" as defined in Penal Code Section 3.01, which requires "the repeated commission of the same or similar offenses." Tex. Penal Code Ann. § 3.01(2) (emphasis added). To read Article 55.01(c) as the Department contends gives short shrift to the cohesive, contextual structure and operation of the entire statutory expunction scheme. Therefore, we cannot agree with the Department's view on the effect of the definition of "criminal episode" on K.T.'s entitlement to expunction when the Legislature's contrary meaning is apparent from the context of the entire statutory scheme and the clear definition of criminal episode in the Penal Code. After a review of the entire statutory scheme, we conclude that the plain language of Article 55.01(c) provides that a person arrested for and charged with DWI in 2017 who is later acquitted—i.e., was not proven beyond a reasonable doubt to have committed the offense—is entitled to have those arrest records expunged even though she has a prior 2013 DWI conviction. See Ferris , 2020 WL 5868217, at *4–5 (concluding same). Therefore, the trial court did not abuse its discretion by ordering the expunction of K.T.'s 2017 DWI arrest records.
E. RESPONSE TO DISSENTING OPINION
We must respond briefly to the dissenting opinion.
First, in disagreeing with the trial court's expunction decision, the dissenting opinion takes issue with the trial court's conclusion that "[t]he Article 55.01(c) exception ... does not apply ... because the two cases could not have been joined at trial." Dissenting Op. at 124–25. But this conclusion of law was an independent reason for the trial court's judgment; it is not the basis of the majority's analysis and should not be construed as part of the majority's holding. Likewise, our majority analysis does not include—and therefore is not based on—a determination that Penal Code Section 3.01(2) requires a temporal or factual connection between the two offenses that form the basis of "the repeated commission of the same or similar offenses." The dissenting opinion's discussion of this aspect of Section 3.01(2) should not inform an understanding of the majority's disposition. See Dissenting Op. at 123.
Finally, the dissenting opinion concludes that the word "commission" as used in Penal Code Section 3.01(2) and incorporated into Article 55.01(c) means "arrested for"; in other words, the dissent construes Article 55.01(c) to prohibit expunction of an acquitted offense if the person has committed acts that cause the person to be placed under arrest for the acquitted offense and convicted of another same or similar offense. Dissenting Op. at 127. But the Legislature did not use the word "arrest" in Penal Code Section 3.01(2), nor did it indicate in Article 55.01(c) that it intended to ascribe a broader meaning to Section 3.01(2) than its plain language. The Legislature knows how to differentiate between an arrest—"a technical term possessing a long, established history in the common law," Medford v. State , 13 S.W.3d 769, 772 (Tex. Crim. App. 2000) —and the "commission of an offense," Tex. Penal Code Ann. § 3.01. We should therefore presume that its incorporation of Section 3.01(2), which does not use the word "arrest," in Article 55.01(c) was intentional. See In re Xerox Corp. , 555 S.W.3d 518, 527–29 (Tex. 2018) (orig. proceeding).
V. CONCLUSION
Because K.T.'s 2013 DWI conviction and 2017 DWI acquittal do not meet the definition of a criminal episode, she was entitled to the expunction of her 2017 DWI arrest records. See Tex. Code Crim. Proc. Ann. art. 55.01(a)(1). We overrule the Department's two issues on appeal and affirm the trial court's order granting the expunction.
DISSENTING OPINION
Dissenting Opinion by Justice Bassel
I. Introduction
The issue before us is simple: Does Appellee K.T. meet the criteria to have the trial court order Appellant Texas Department of Public Safety to expunge the records pertaining to her 2017 arrest on a DWI charge on which she was subsequently acquitted when she had been convicted of DWI in 2014? The majority holds that Appellee's 2017 arrest record should be expunged. The majority reaches this result by adopting a definition of the word "commission" that permits a petitioner to expunge a charge for a similar offense unless he or she is actually convicted of the second offense. In my opinion, to read the statute in this matter relies on a strained and unsupportable definition of the word "commission" and, in effect, reads the exception out of the statute. I respectfully dissent.
II. Analysis
A. The provisions of the expunction statute that we interpret
To give context to my analysis, I will repeat the statutory test that governs our decision. Article 55.01(a) entitles a person acquitted of an offense to expunction of the arrest records for that offense except when a specific exception contained in the statute applies as follows:
(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) ....
Tex. Code Crim. Proc. Ann. art. 55.01(a)(1)(A) (emphasis added).
Subsection (c)—the exception to the right to expunction upon acquittal—prohibits expunction when a person has been convicted of an offense that is part of the same criminal episode as the offense for which the petitioner was acquitted; it defines what constitute a criminal episode by referencing a definition in the Penal Code as follows:
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.
Id. art. 55.01(c). Part of the burden a petitioner carries in an expunction proceeding requires proof that Subsection (c) does not apply to forestall the expunction because the acquitted offense is part of a criminal episode. In re Expunction of J.B. , 564 S.W.3d 436, 440 (Tex. App.—El Paso 2016, no pet.).
Finally, the section of the Penal Code that Subsection (c) references for the definition of "criminal episode" provides alternate circumstances defining a criminal episode as follows:
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.
B. Why I conclude that Appellee was not entitled to expunction of the arrest records related to her 2017 DWI
The question is whether the incorporation of the definition of criminal episode from Penal Code Section 3.01(2) into the expunction exception contained in Article 55.01(c) means that expunction is not available after acquittal for an offense if the person has ever been convicted of the same or similar offense, even though the offenses are not connected temporally or factually. My answer is that expunction is not available in that circumstance because of the plain language of the expunction statute. Thus, I would hold that the trial court abused its discretion by ordering the expunction of the records of Appellee's arrest for the 2017 DWI.
My first reason for this interpretation is based on an examination of the words of Section 3.01(2) in isolation—"the offenses are the repeated commission of the same or similar offenses." Id. § 3.01(2). Nothing in the clause requires the offenses to have a temporal or a factual connection. Indeed, the first alternate definition in Section 3.01(1) does require some nexus between the offenses—"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." Id. § 3.01(1). To read Subsection (2) to require a nexus between the offenses as specified in Subsection (1) would make Subsection (2) meaningless. The principles of statutory construction direct us not to adopt a construction that renders provisions of a statute meaningless. See City of Dallas v. TCI W. End, Inc. , 463 S.W.3d 53, 55–56 (Tex. 2015).
Next, if one inserts the definition of "criminal episode" from Penal Code Section 3.01(2) into the language of the expunction exception contained in Code of Criminal Procedure Article 55.01(c), it yields the following:
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 [repeated commission of the same or similar offenses], and the person was convicted of at least one other offense occurring during the criminal episode.
See Tex. Code Crim. Proc. Ann. art. 55.01(c) (replacing "as defined by Section 3.01, Penal Code" with the bracketed language from Tex. Penal Code Ann. § 3.01(2) ). The words of this construction plainly do not include any requirement that the same or similar offense must have some temporal or factual connection.
Further, a number of cases from the Corpus Christi–Edinburg and San Antonio Courts of Appeals read Subsection 3.01(2)'s definition of criminal episode as not imposing a particular time frame for the same or similar offense to be repeated or that the offenses be committed in the same or similar fashion. See, e.g., Garcia v. State , No. 13-17-00218-CR, 2019 WL 1388532, at *9–10 (Tex. App.—Corpus Christi–Edinburg Mar. 28, 2019, pet. ref'd) (mem. op., not designated for publication) (holding that acts of sexual assault committed against different children fell within the definition of criminal episode); Waddell v. State , 456 S.W.3d 366, 370 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.) ("[I]t was the repeated commission of the same offense—indecency with a child—that established that the offenses charged in separate counts in the indictment and for which [appellant] was convicted were part of the same criminal episode."); Baker v. State , 107 S.W.3d 671, 673 (Tex. App.—San Antonio 2003, no pet.) (holding that "because all three offenses entailed sexual assault or attempted sexual assault, they [were] similar offenses" and fell within the definition of criminal episode in section 3.01(2) ); Guidry v. State , 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi–Edinburg 1995, pet. ref'd) (explaining that section 3.01(2) does not impose a time differential between the commission of the same or similar offenses, and "[h]ad the [l ]egislature wanted us to consider a time differential in the application of this section of the Code, it could have easily done so").
Indeed, a number of opinions from our sister courts hold in consonance with this interpretation of the expunction statute. These opinions rely primarily on the cases cited in the prior paragraph and their holdings about the breadth of Penal Code Section 3.01(2). See In re Expunction of T.D.N. , No. 08-19-00164-CV, ––– S.W.3d ––––, –––– – ––––, 2020 WL 5627222, at *2–6 (Tex. App.—El Paso Sept. 21, 2020, no pet. h.); In re M.T.R. , 606 S.W.3d 288, 292–94 (Tex. App.—Houston [1st Dist.] 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) (mem. op.) ; Ex parte J.A.B. , 592 S.W.3d 165, 169 (Tex. App.—San Antonio 2019, no pet.) ; Ex parte Rios , No. 04-19-00149-CV, 2019 WL 4280082, at *2 (Tex. App.—San Antonio Sept. 11, 2019, no pet.) (mem. op.).
Our role is to search for the plain meaning of the words used by the legislature. When, as set forth above, the words of Penal Code Section 3.01(2) are incorporated into the exception found in Article 55.01(c), those words require only the commission of the same or similar offenses. Nothing in the words themselves or how they have been interpreted requires a temporal or factual nexus between the two offenses.
C. Why I reject the trial court, Appellee, and the majority's constructions of the expunction statute
Respectfully, the trial court, Appellee, and majority's constructions of the expunction statute improperly add concepts to the words used by the statute and give a particular word—commission—an out-of-context definition.
1. As used in the expunction statute, the term criminal episode does not require that the two offenses must be capable of being prosecuted in a single criminal action.
We begin by evaluating the trial court's view of the statute. The trial court apparently adopted a construction that turned on reading the definitions of Section 3.01 in the context of other provisions of Chapter 3 of the Penal Code. I disagree with that approach because it in effect incorporates language into the expunction statute that the statute itself does not reference.
I glean the trial court's approach from the following conclusion of law:
18. The Article 55.01(c) exception to acquittal[-]expunction entitlement does not apply because Petitioner's 2017 DWI arrest, which resulted in an acquittal in 2019, did not arise
out of "a criminal episode" with the prior 2014 DWI final conviction, as that term is defined by TEX. PENAL CODE § 3.01(2), because the two cases could not have been joined at trial. Specifically, the 2014 conviction was finally adjudicated before the alleged commission of the 2017 acquitted DWI offense.
The trial court superimposed on the definition of criminal episode the requirement that the two offenses must be able to be joined at trial. Apparently, the trial court found this additional requirement by reading Section 3.01 of the Penal Code in conjunction with Section 3.02 that is titled "Consolidation and Joinder of Actions." See Tex. Penal Code Ann. § 3.02. Section 3.02(a) provides that "[a] defendant may be prosecuted in a single criminal action for all offenses arising out of the same criminal episode." Id. § 3.02(a). In essence, the trial court read the definition of criminal episode to include the requirement that offenses do not constitute a criminal episode unless they can be prosecuted in a single action.
I disagree that such a requirement should be superimposed on the expunction-statute exception that relies on the definition of a criminal episode. The exception contained in Article 55.01(c) makes no reference to Section 3.02 of the Penal Code or to the concept of consolidation in general. As the Department notes, Article 55.01(c) incorporates Section 3.01's definition in a freestanding manner, i.e., it simply incorporates the definition without any of the other concepts that apply the theory of criminal episode to criminal trials. While importing the concepts of when a criminal offense may be prosecuted in a single criminal action may appear reasonable, I cannot find any indication in the words of the statute that the legislature intended that result when it incorporated only the definitional provision of Section 3.01 into Article 55.01(c). As always, it is not an appellate court's role to make a statute conform to a notion of what is reasonable; our role is to glean the plain meaning from the words used. See J.A.B. , 592 S.W.3d at 169.
2. The use of the word "commission," which is embodied in the trial court's conclusions and the majority opinion, does not fit the context as that word is used in the expunction statute.
Next, the trial court's conclusions embody a concept that is a central emphasis of Appellee's brief and the majority's opinion—the noun "commission" used in Section 3.01(2) mandates that a criminal episode must be based on two acts that constitute crimes. This argument appears in the following conclusions:
14. Texas Penal Code 3.01 requires the commission of two offenses prior to the formation of a criminal episode. The conviction in [the 2013 DWI] is one commission of an offense. However, the acquittal in [the 2017 DWI] is not a "repeated commission" of the same or similar offense.
15. The Department's assertion that the arrest for an offense is the equivalent of the commission of the offense is incorrect as a matter of law.
Appellee's brief elaborates on this concept that the use of the word "commission" is pivotal by arguing that
[o]ne arrest for one allegation resulting in one acquittal, when combined with one prior arrest for one offense resulting in one conviction, does not result in a criminal episode that would make the acquitted arrest exempt from expunction pursuant to Penal Code 55.01(c). State v. T.S.N. [ (T.S.N. II ) ], 547 S.W.3d 617, 621 (Tex. 2018). Indeed, there can be no
["]repeated commission["] of an offense with one conviction and one acquittal. See Tex. Penal Code [Ann.] § 3.01. "Repeated commission of the same offense" requires that the offense be committed more than once, ( [ ] Finding #14).
....
The section (3)(b) definition of criminal episodes require[s] [that] the crime be committed multiple times. The Department assumes that the arrest by itself is sufficient evidence of ["]commission["] of an offense. The Department is wrong. Both the Penal Code and [the] Code of Criminal Procedure preclude the arrest from establishing the commission of the offense. See Tex. Penal Code [Ann.] § 2.01 ; Tex. Code Crim. Proc. Ann. art. 38.03.
And the pivot point of the majority opinion accepts the trial court and Appellee's reasoning. In the majority's view,
Article 55.01(c) refers directly to Penal Code Section 3.01's definition of a "criminal episode," which includes "the commission of two or more offenses ... [that] are the repeated commission of the same or similar offenses." Tex. Penal Code Ann. § 3.01(2) (emphasis added). The word commission is not defined in the Penal Code, but the Penal Code uses the phrase "commission of" in defining the elements of some offenses. See, e.g., id. § 22.02(a)(2) (aggravated assault with a deadly weapon). The word's generally accepted meaning is "the act of committing, performing, or doing." Webster's Third New Int'l Dictionary 457 (2002); see also Clinton v. State , 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) ("When determining the fair, objective meaning of an undefined statutory term, our Court may consult standard dictionaries."). Black's Law Dictionary defines the root verb commit as "[t]o perpetrate (a crime)," and Webster's defines it as "to do or perform." Commit , Black's Law Dictionary (11th ed. 2019); Webster's Third New Int'l Dictionary 457 (2002). Thus, we conclude that the use of the word commission in this context contemplates its commonly understood meaning of the actual performance of at least two "same or similar offenses." Tex. Penal Code Ann. § 3.01(2).
To prove "commission of" an offense, the State must prove each element of that offense beyond a reasonable doubt . See Tex. Code Crim. Proc. Ann. art. 38.03 ; Tex. Penal Code Ann. § 2.01. That a person has been arrested, confined, indicted for, or otherwise charged with an offense does not allow an inference of guilt at trial. See Tex. Code Crim. Proc. Ann. art. 38.03 ; Tex. Penal Code Ann. § 2.01. Here, K.T. showed via her acquittal judgment that the State failed to meet its evidentiary burden to prove that she committed DWI in connection with her 2017 arrest. Therefore, there is no evidence in the record that K.T. repeatedly committed DWI; instead, the record shows that she has "commi[tted]" only the 2013 DWI. See Webster's Third New Int'l Dictionary 1924 (2002) (defining "repeated" as "renewed or recurring again and again" and "done ... again").
Maj. Op. at 117–18 (emphases added).
As I understand the majority's construction of the word "commission" in the context of the expunction statute, it requires the State to prove an offense occurred beyond a reasonable doubt, and thus the jury's acquittal of Appellee for the 2017 DWI negates the possibility of a criminal episode because she has not "committed" two offenses under the adopted definition of the word "commission." In my view, adopting such a definition violates two cardinal principles of statutory construction.
First, we must read the words of a statute in context:
While we must consider the specific statutory language at issue, we must do so while looking to the statute as a whole, rather than as "isolated provisions." We "endeavor to read the statute contextually, giving effect to every word, clause, and sentence." We thus begin our analysis with the statute's words and then consider the apparent meaning of those words within their context.
Jaster v. Comet II Constr. , 438 S.W.3d 556, 562 (Tex. 2014) (citations omitted).
Second, an out-of-context literal meaning of a word should not be adopted that makes its use absurd. See KMS Retail Rowlett, LP v. City of Rowlett , 593 S.W.3d 175, 183 (Tex. 2019) ("[W]e limit our analysis to the words of the statute and apply the plain meaning of those words ‘unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.’ " (quoting Molinet v. Kimbrell , 356 S.W.3d 407, 411 (Tex. 2011) )).
With these principles in mind, I construe the use of the word "commission" in the context of Section 3.01(2)'s use within Article 55.01(c) to mean the commission of acts that form the basis for the charge of an offense. In other words, the legislature has adopted words expressing its policy decision that it will not accord a petitioner the statutory privilege of expunction for an acquitted offense if the petitioner has ever been arrested for the commission of the same or similar offense.
As support for this construction, I note that the usual definition of "commission" is "an act of committing something." Commission , Merriam-Webster.com, https://www.merriam-webster.com/dictionary/commission (last visited on Oct. 15, 2020). The question that we confront is what acts does the word "commission" refer to when Section 3.01(2)'s definition using the words "the offenses are the repeated commission of the same or similar offenses" is incorporated into the exception for expunction contained in Article 55.01(c) of the Code of Criminal Procedure. Expunction requires that the petitioner have been acquitted of an offense. See generally Tex. Code Crim. Proc. Ann. art. 55.01. Defining the word "commission" to require a conviction for the same or similar offenses before a criminal episode occurs does not fit into a scheme that is predicated on an acquittal for one of the offenses as a precondition to relief. Thus, the word "commission" must mean something less than a jury's having concluded that the petitioner committed two offenses. In the internal structure of the expunction statute, the word "commission" is used in the context of acts that cause a person to be placed under arrest: "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...." See id. art. 55.01(a). I read the word "commission" in the context of the expunction statute to mean that the petitioner has committed acts that have caused her arrest for the same or similar offense for which the petitioner bears a conviction. I therefore construe the expunction statute as not providing Appellee with the statutory privilege to expunge the arrest records relating to her 2017 DWI because of the 2013 DWI conviction. Though the two offenses are not related temporally of factually, they constitute a criminal episode as that term is used in the exception to expunction found in Article 55.01(c) of the Code of Criminal Procedure. For that reason, Appellee's arrest record for the 2017 DWI is not available for expunction.
The majority also criticizes the Department's argument as follows:
The Department's construction of Article 55.01(c)'s incorporation of Section 3.01(2) attempts to add words to the statute's plain language. The Department would read Section 3.01(2) to include in a criminal episode "the repeated [arrest for or] commission of the same or similar offenses." But to read these additional words into the statute would deviate from the plain meaning of the word commission intentionally used by the Legislature.
Maj. Op. at 118. In my view, this criticism is unfounded. The Department is simply trying to integrate into a coherent whole all the language found in the various provisions that are at play.
For the sake of completeness, I will address two arguments raised by Appellee that cite the Texas Supreme Court's opinion in T.S.N. II and the opinion of the Dallas Court of Appeals that the Texas Supreme Court affirmed in T.S.N. II. See T.S.N. II , 547 S.W.3d at 621 ; State v. T.S.N. (T.S.N. I ), 523 S.W.3d 171 (Tex. App.—Dallas 2017), aff'd , 547 S.W.3d 617 (Tex. 2018).
Appellee first quotes T.S.N. II as holding that " ‘[w]here an arrest is made pursuant to a charge for a single offense and the person is acquitted ... then article 55.01(a)(1) entitles the person to expunction of all records and files relating to the arrest.’ ...547 S.W.3d [at] 621 [.]" Appellee pivots off this statement to argue that
[h]ere, [Appellee] was arrested for a single criminal allegation and was acquitted of that charge. The Department concedes as much on the record. Accordingly, because one offense cannot make a criminal episode, the criminal episode exception does not apply, and [Appellee] is entitled to an expunction of that arrest. [Record references omitted.]
This argument offers no insight into the central question we analyze of how Appellee's conviction for the 2013 DWI impacts our analysis of Article 55.01(c)'s exception.
Appellee also argues that the T.S.N. I opinion "determined that a Petitioner is entitled to an acquittal-expunction unless the acquitted offense was part of a single criminal episode for which the defendant remains at jeopardy . See ...523 S.W.3d [at] 174 [.]" The Dallas court's statement does not conflict with my interpretation; instead, the statement is a general description of the scheme of the expunction statute and does not address the question before us of integrating the language of Penal Code Section 3.01(2) into Article 55.01(c) of the Code of Criminal Procedure.
I also agree with and find support in Justice Evans's recent dissent in Ex parte Ferris that dealt with the same issue that we grapple with. See Ex parte Ferris , No. 05-19-00835-CV, ––– S.W.3d ––––, –––– – ––––, 2020 WL 5868217, at *6–15 (Tex. App.—Dallas Oct. 2, 2020, no pet. h.) (en banc) (Evans, J., dissenting). Justice Evans's focus was not on the word "commission" but on the word "offense" in section 3.01(2)'s clause "the offenses are the repeated commission of the same or similar offenses." Id. at –––– – ––––, 2020 WL 5868217, at *10–11. His reasoning produces the same result as my interpretation—that the expunction statute cannot be read to mean that a petitioner is entitled to expunction unless she in effect was convicted of a second similar offense. Specifically, Justice Evans dealt with an argument that
The majority in Ferris took a different tack than the majority here and defaulted to the view that the interpretation Justice Evans and I adopt is absurd for the following reasons:
In the context of this expunction, the Department and the dissent's position that the September 4, 2014 DWI arrest and conviction was the first act in furtherance of a "criminal episode" that continued beyond adjudication, a served sentence, and beyond the two-year statute of limitation for a Class A misdemeanor into April 19, 2018, when the second DWI arrest occurs, is an absurd reading of the expunction statute. Such a cabined view of what constitutes a "criminal episode" creates an absurd, nonsensical result wherein a single "criminal episode" would engulf two DWI arrests, which (i) share no common or continuing pattern of facts; (ii) are impossible to prosecute as multiple prosecutions under Chapter 3 of the Texas Penal Code (through joinder); and (iii) could not share a concurrent sentence. As noted above, the able trial judge was correct. The dissent is "reading things in a vacuum."
––– S.W.3d at ––––, 2020 WL 5868217, at *4. Respectfully, Justice Evans and I (as well as the majority in this case) are simply applying the interpretive tools at our disposal to do as we should and glean the meaning of the of the words used by the legislature in the expunction statute.
the first use of "offenses" in section 3.01(2) means two or more convictions for offenses that are then described as being the same or similar[;] [the petitioner seeking expungement in Ferris argued] because he was acquitted in 2019, he had only one offense, the 2015 conviction, so section 3.01(2) does not apply and the criminal episode exception to acquittal expunction in section 55.01(c) does not apply.
Id. at ––––, 2020 WL 5868217, at *10.
Justice Evans began his analysis by noting the definition of offense contained in section 1.03 of the Penal Code. Id. ; Tex. Penal Code Ann § 1.03 (stating that conduct constitutes offense when "it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute"). Justice Evans then noted that the definition encompassed only prohibited conduct and did not include "concepts of arrest, charge, prosecution, conviction, or acquittal." ––– S.W.3d at ––––, 2020 WL 5868217, at *11.
Pivoting off this definition, Justice Evans reasoned that
[t]he [P]enal [C]ode's definition of "offense" as prohibited conduct is evident in the text of [A]rticle 55.01(c) of the [C]ode of [C]riminal [P]rocedure. Article 55.01(c) provides[,]
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 ... 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.
Tex. Code Crim. Proc. [Ann.] art. 55.01(c) (emphasis added). Article 55.01(c) distinguishes between an offense, which is prohibited conduct, and arrest ("arrest for an offense"), prosecution ("remain[ ] subject to prosecution"), conviction ("offense ... was convicted of"), and acquittal ("offense for which a person is subsequently acquitted" and "offense for which the person was acquitted").
The [P]enal [C]ode's definition of offense in [S]ection 1.03 applies to [S]ection 3.01. Section 3.01 provides in full:
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.
Tex. Penal Code [Ann.] § 3.01 (emphas[e]s added). In [S]ection 3.01, an "offense" is prohibited conduct which someone can perpetrate (commit). Nothing in the text of [S]ection 3.01 indicates "offense" is an arrest, prosecution, conviction, or acquittal. Because a conviction cannot be committed by someone, but prohibited conduct can be committed by someone, [appellee's] interpretation is nonsensical. So, contrary to [appellee's] argument, [A]rticle 55.01(c) and [S]ection 3.01 do not convey the meaning
of "offense" as equivalent to "conviction."
Id.
Justice Evans's dissent brings us by a different path to the same result: the words of Section 3.01 should not be read in a way that it produces a paradoxical result that unless a petitioner is convicted of a second similar offense she is entitled to expunction. In that circumstance, the petitioner would not be entitled to an expunction, so why craft an exception in the first place? The pregnant question is what purpose does such an unneeded exception serve? Justice Evans and I are both left to wonder why the legislature would see the need to craft an exception that serves no purpose.
The majority opinion also notes that the El Paso Court of Appeals's decision in T.D.N. stated that "[w]e read statutes in context, and the very provision that adopts the definition of a ‘criminal episode’ also allows for a single conviction, or even the possibility of a conviction, to block an expunction." 2020 WL 5627222, at *6. The majority's challenge to T.D.N. 's reasoning turns on its interpterion of the word "commission." Maj. Op. at 119–20. I accept T.D.N. 's reasoning because I disagree with the majority's interpretation.
III. Conclusion
The majority and I deal with the interpretation problems inherent when the legislature imports statutory provisions dealing with a particular topic into another statute where the imported concept is an imprecise fit. The majority and I disagree about the definition of the word "commission." Because I view my interpretation as being in harmony with the language of the expunction statute, I respectfully dissent.