                               Fourth Court of Appeals
                                      San Antonio, Texas
                                  MEMORANDUM OPINION

                                          No. 04-19-00479-CV

                                        EX PARTE R.A.L., Jr.

                      From the 144th Judicial District Court, Bexar County, Texas
                                     Trial Court No. 2019W0563
                               Honorable Ray Olivarri, Judge Presiding

Opinion by:       Beth Watkins, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Patricia O. Alvarez, Justice
                  Beth Watkins, Justice

Delivered and Filed: February 5, 2020

REVERSED AND RENDERED

           The Texas Department of Public Safety appeals the trial court’s order granting the petition

for expunction filed by R.A.L., Jr. The Department contends the trial court erred in granting the

expunction because the 2017 driving while intoxicated offense for which R.A.L. was acquitted

constitutes the same “criminal episode” as a 2013 driving while intoxicated offense for which he

was convicted. We agree, so we reverse the trial court’s order and render judgment denying the

petition.

                                             BACKGROUND

           On December 25, 2017, R.A.L. was arrested for driving while intoxicated. After a jury

acquitted him of that charge, he filed a petition to expunge all criminal records and files pertaining

to his 2017 arrest. In his verified petition, R.A.L. admitted that the arrest records he sought to
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expunge were “Driving While Intoxicated-2D.” The Department did not file an answer and the

trial court signed an order requiring the Department to expunge all records regarding R.A.L.’s

2017 arrest. 1

         The Department filed a motion for new trial alleging that R.A.L. was not entitled to

expunge the records of his 2017 arrest because he was previously convicted of driving while

intoxicated in 2013, and since the 2013 and 2017 offenses are “the same or similar offenses,” they

constitute a criminal episode for which expunction is not available. The Department attached to its

motion a certified copy of the 2013 judgment convicting R.A.L. of driving while intoxicated with

a blood alcohol content of 0.15 or higher. The record indicates that no hearing was held on the

expunction petition or the Department’s motion for new trial. The Department timely appealed,

arguing that R.A.L. was not statutorily entitled to an expunction and that the evidence supporting

the trial court’s order is legally insufficient.

                                            STANDARD OF REVIEW

         A trial court’s ruling on a petition for expunction is generally reviewed for abuse of

discretion, but a trial court has no discretion in deciding what the law is or in applying it to the

facts. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). When a trial court’s expunction ruling

turns on a question of law like statutory construction, it is subject to de novo review. Id. Here, the

trial court’s expunction ruling involves the interpretation and application of article 55.01(c) of the

expunction statute. See id.; In re Expunction of J.B., 564 S.W.3d 436, 439 (Tex. App.—El Paso

2016, no pet.). We review the trial court’s ruling de novo. See T.S.N., 547 S.W.3d at 620.




1
 In its motion for new trial, the Department alleged that it “was not made aware of any Petition for Expunction or
hearing date, only receiving notice of the signed order.” R.A.L.’s petition for expunction lists the Department as one
of several “law enforcement agencies [that] have records or files subject to expunction herein and should be served
with notice of this petition.”


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                                             DISCUSSION

        Expunction statutes permit the expunction of records of wrongful arrests. Harris Cty. Dist.

Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991). “Expunction is not a right; it is a

statutory privilege.” In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014). If a petitioner who

has been arrested for the commission of an offense meets all the requirements of the expunction

statute, then all information about the arrest is removed from the State’s records. See In re J.B.,

564 S.W.3d at 439. The petitioner bears the burden of establishing that all of the statutory

conditions or requirements are met. See T.S.N., 547 S.W.3d at 620; In re J.B., 564 S.W.3d at 439.

        Article 55.01(a)(1)(A) of the Texas Code of Criminal Procedure permits a person to have

all records and files relating to an arrest expunged if the person is tried and acquitted of the offense.

TEX. CODE CRIM. PROC. ANN. art. 55.01(a)(1)(A). That statute contains an exception which

prohibits a trial court from ordering the expunction of records—even if the person was acquitted—

if the offense arose out of a criminal episode and the person was convicted of at least one other

offense occurring during the criminal episode. Id. art. 55.01(c). Article 55.01(c) incorporates the

definition of criminal episode from Texas Penal Code section 3.01. Ex parte Rios, No. 04-19-

00149-CV, 2019 WL 4280082, at *2 (Tex. App.—San Antonio Sept. 11, 2019, no pet.). For that

reason, we must construe both article 55.01(c) of the Texas Code of Criminal Procedure and

section 3.01 of the Texas Penal Code to determine whether the trial court properly granted the

expunction. See id.

        “Statutes are to be analyzed as a cohesive, contextual whole with the goal of effectuating

the Legislature’s intent and employing the presumption that the Legislature intended a just and

reasonable result.” T.S.N., 547 S.W.3d at 620 (internal quotation omitted). “Further, our analysis

is limited to application of the plain meaning of the statutory language unless a different meaning

is apparent from the context or the plain meaning leads to absurd or nonsensical results.” Id. at 621


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(internal quotation omitted). We also “operate under the presumption that the legislature chooses

a statute’s language with care, deciding to omit or include words purposefully.” In re J.B., 564

S.W.3d at 440.

       Section 3.01(2) of the Texas Penal Code defines criminal episode as “the commission of

two or more offenses, regardless of whether the harm is directed toward or inflicted upon more

than one person or item of property,” if “the offenses are the repeated commission of the same or

similar offenses.” TEX. PENAL CODE ANN. § 3.01(2). Section 3.01(2) does not impose a particular

time frame within which the same or similar offenses must be repeated. See Ex parte Rios, 2019

WL 4280082, at *2; In re J.B., 564 S.W.3d at 441; Waddell v. State, 456 S.W.3d 366, 369 (Tex.

App.—Corpus Christi 2015, no pet.); Baker v. State, 107 S.W.3d 671, 673 (Tex. App.—San

Antonio 2003, no pet.) (citing Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi

1995, pet. ref’d) (section 3.01(2) does not impose time differential between commission of same

or similar offenses)). “Had the Legislature wanted us to consider a time differential in the

application of this section of the Code, it could have easily done so.” Guidry, 909 S.W.2d at 585.

In addition, section 3.01(2) does not require that the offenses be committed in the same or similar

fashion—only that the offenses are the repeated commission of the same or similar offense. Ex

parte Rios, 2019 WL 4280082, at *2; see generally Duncan v. State, No. 08-12-00328-CR, 2013

WL 5716179, at *2 (Tex. App.—El Paso Oct. 18, 2013, no pet.) (not designated for publication)

(“To be characterized as a single criminal episode, multiple offenses occurring on different dates,

in different places, and against several complainants must either: (1) be the same or similar; (2)

share a common scheme or plan; or (3) have been repeated in a similar fashion.”).

       The 2017 offense for driving while intoxicated constitutes “the repeated commission of the

same . . . offense” as the 2013 offense for driving while intoxicated for which R.A.L. was

convicted. TEX. PENAL CODE § 3.01(2). The Legislature has declared that records from a


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subsequent arrest for the repeated commission of the same offense are not available for expunction

if the previous arrest resulted in a conviction. TEX. CODE CRIM. PROC. art. 55.01(c). For that reason,

R.A.L.’s arrest record for the 2017 offense of driving while intoxicated is not available for

expunction. Because we sustain the Department’s first argument on appeal, we do not reach its

second argument. See TEX. R. APP. P. 47.1 (requiring opinions to address only the issues necessary

to final disposition of the appeal)

                                           CONCLUSION

       We reverse the trial court’s Order of Expunction, and render judgment denying the Petition

for Expunction of Records.

                                                   Beth Watkins, Justice




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