IN THE
TENTH COURT OF APPEALS
No. 10-20-00053-CV
EX PARTE M.B.F.
From the 12th District Court
Walker County, Texas
Trial Court No. 1929296
OPINION
The Texas Department of Public Safety appeals the trial court's order granting the
petition for expunction filed by M.B.F. The Department contends the trial court erred in
granting the expunction because the 2007 driving while intoxicated offense for which
M.B.F. was acquitted in 2008 constitutes the same "criminal episode" as a 2000 driving
while intoxicated offense for which he was convicted. Because the trial court erred in
granting the petition for expunction, we reverse the trial court's order and render
judgment denying the petition.
BACKGROUND
M.B.F. was arrested in June of 2007 for driving while intoxicated, a second offense,
and acquitted in November of 2008. Almost 11 years later, M.B.F. filed a petition for the
expunction of that offense. The Department filed a response asserting that M.B.F. was
not entitled to an expunction because he had previously been convicted of driving while
intoxicated, and since the 2000 and 2007 offenses are "the same or similar offenses," they
constitute a criminal episode for which expunction is not available. Although the trial
court had scheduled a hearing on the expunction, no hearing was held, and the trial court
granted the petition for expunction.
ISSUE ON APPEAL
In its only issue on appeal, the Department contends M.B.F. is not entitled to an
expunction of his acquitted DWI 2nd offense (the 2007 offense) under article
55.01(a)(1)(A) of the Texas Code of Criminal Procedure because he was convicted of a
DWI offense (the 2000 offense) arising out of the same criminal episode as the offense for
which he was acquitted. See TEX. CODE. CRIM. PROC. art. 55.01(a)(1)(A), (c). Although
requested by the Court to file a brief responding to the Department’s issue, M.B.F. did
not file a brief.
There is no precedent from this Court regarding the Department’s issue.
However, other courts of appeals, such as the San Antonio Court of Appeals, have
addressed this same issue and have agreed with the Department’s position. After
reviewing that Court’s opinions, we agree with and adopt the reasoning and disposition
of the issue by the San Antonio Court of Appeals. 1
1
We realize that two courts of appeals have disagreed with the Department’s position, each for different
reasons. See Ex parte Ferris, 613 S.W.3d 276 (Tex. App.—Dallas 2020, pet. granted); Ex parte K.T., 612 S.W.3d
111 (Tex. App.—Fort Worth 2020, pet. granted). Petitions for Review of those opinions have been granted
by the Texas Supreme Court and argument has already occurred. We decline to follow those Court of
Appeals’ decisions.
Ex parte M.B.F. Page 2
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 such as 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.). Consequently, we review the trial
court's ruling de novo. See T.S.N., 547 S.W.3d at 620.
LAW AND APPLICATION
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, but a statutory privilege. In re State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014). As
such, 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 Expunction of 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 related to the person’s arrest expunged if the person is tried and
acquitted of the offense. TEX. CODE CRIM. PROC. art. 55.01(a)(1)(A). Subsection (c),
however, prohibits a trial court from ordering an expunction of records, even if the
person was acquitted, if the offense arose out of a criminal episode, as defined by section
3.01 of the Texas Penal Code, and the person was convicted of at least one other offense
Ex parte M.B.F. Page 3
occurring during the criminal episode. Id. (c). Because subsection (c) incorporates the
Texas Penal Code's definition of "criminal episode," we construe both article 55.01(c) and
section 3.01 in determining whether the trial court properly granted the expunction
petition. Ex parte R.A.L., No. 04-19-00479-CV, 2020 Tex. App. LEXIS 987, at *4 (Tex.
App.—San Antonio Feb. 5, 2020, pet. denied) (mem. op.); Ex parte Rios, No. 04-19-00149-
CV, 2019 Tex. App. LEXIS 8219, at *4 (Tex. App.—San Antonio Sep. 11, 2019, no pet.)
(mem. op.).
"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." State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018)
internal quotation omitted); see TEX. GOV'T CODE § 312.005. We 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; Molinet v. Kimbrell, 356
S.W.3d 407, 411 (Tex. 2011). We presume the legislature chose a statute's language with
care, deciding to omit or include words purposefully. In the Interest of M.N., 262 S.W.3d
799, 802 (Tex. 2008); In re Expunction of J.B., 564 S.W.3d 436, 440 (Tex. App.—El Paso 2016,
no pet.).
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 § 3.01(2). It does
not impose a particular time frame within which the same or similar offenses must be
Ex parte M.B.F. Page 4
repeated. See Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi 1995, pet.
ref'd); In re Expunction of J.B., 564 S.W.3d 436, 441 (Tex. App.—El Paso 2016, no pet.). See
also Ex parte R.A.L., No. 04-19-00479-CV, 2020 Tex. App. LEXIS 987, at *5 (Tex. App.—San
Antonio Feb. 5, 2020, pet. ref’d) (mem. op.). “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. Additionally, section 3.01(2) does not require that 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 R.A.L., No. 04-19-00479-CV, 2020 Tex.
App. LEXIS 987, at *5.
After reviewing the statutes and caselaw, we agree with the Department that the
acquitted 2007 offense for driving while intoxicated constitutes "the repeated commission
of the same . . . offense" as the 2000 offense for driving while intoxicated for which M.B.F.
was convicted. See TEX. PENAL CODE § 3.01(2). Thus, M.B.F.’s arrest record for the 2007
offense of driving while intoxicated is not available for expunction. See TEX. CODE CRIM.
PROC. art. 55.01(c).
The Legislature has determined that records from a subsequent arrest for the
repeated commission of the same or similar offense are not available for expunction if the
previous arrest resulted in a conviction. That is its prerogative. If it no longer agrees
with its prior determination, it may change the statutory provisions.
Accordingly, the trial court erred in granting the petition for expunction, and the
Department’s sole issue is sustained.
Ex parte M.B.F. Page 5
CONCLUSION
Having sustained the Department’s sole issue on appeal, we reverse the trial
court’s Order of Expunction and render judgment denying M.B.F’s Petition for
Expunction. Further, we ORDER all documents that were turned over to the trial court
or M.B.F. be returned to the submitting agencies.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Reversed and rendered
Opinion delivered and filed February 23, 2022
[CV06]
Ex parte M.B.F. Page 6
Ex Parte M.B.F.
Combined Opinion