## In the Court of Appeals Second Appellate Distri ct of Texas

at Fort Worth

_____ _____ _ ________________
No. 02

- 19

- 00376

- CV

____ _ ______________________

On Appeal from the 431 st Di s trict Court Dento n County, Texas Trial C o urt No. 19

- 5358

- 431

Before Gabriel, Kerr, and Bassel, JJ. Dissenting Opinion by Justice Bassel 

### E X PARTE 

### K.T.2 DISSENTING OPINION

I

. Intro duction

The issue before us is simple : Doe s Appell e e K.T. meet the criter ia to hav e the

trial court order Appellant Texas Departme nt of Public Safety to expu n ge the re cords

pertain ing to her 2017 arrest on a DWI charge o n which she was subsequently

acqui tted when she had been convicted of DWI in 2014 ? The majority holds that

Appell ee ’ s 2017 arrest record should be expunged. T he majority reaches this result by

adopting a definition of the word “ commission ” that permits a p etitioner to ex punge

a charge fo r a si milar offense unless he or she i s actually conv icted of the second

off ense

. I n my opi nion, to read t he statu t e in this matter relies on a st r ained and

unsupportable def

inition of the word “ commission ” a nd

, in effect

, reads the

except ion out of the s tatu t e. I respectfully dissent

.

II. Analysis

A. T he p rovi sio ns of the expunction stat ute tha t we interpret

T o give context to my anal ysis , I will repeat the statuto ry t est that governs our

deci sion. A r ticle 55.01 (a) entitles a perso n acquitted of an of fense to expunction of

the arrest records for that o ffense except when a specific e xce pt ion cont a ined in the

statut e applies as follows :

(a ) A pe rson who has been placed under a cust odial or noncusto dial arrest f or commission of either a f elony or misdemea nor is enti tled to have all records and files relati ng to the ar r e st expunged if:3 ( 1) the person is tried for the offense for which the p ers on was arrested and is:

(A) acquitte d by the trial co urt, except a s provided by Subsection ( c )

. . . .

T e x. C ode Crim

. P ro c

. Ann. a rt. 55.01 (a) ( 1)(A) ( emphasis a dded)

.

S ubsecti on (c )

— the exc eptio n t o the right to expu ncti on u pon acqu ittal

—
prohibits exp unctio n when a person has been convicted of an offense that is part of

th e same criminal episode a s the offense for which the pe titioner was acquitted ; it

defines what constitute a criminal epis ode b y referencing a definiti on in the Penal

Code as follows :

A cour t m ay not order the expunctio n of records and files relating to an

arrest f or an offense for which a p erson is subsequently acquit ted, whether by the tria l court, a court of a p p eals, or the court of criminal appeals, if the off

ense fo r which the person was acquit ted arose out of a

c riminal episode, as defined by Sec tion 3.01, Pe na l Code, and the pers on

wa s convicted of or remains su bject to prosecution for at lea st one other

o ffense occ urrin g during the criminal episode.

Id. a rt. 55.01 (c)

. Part of the burd en a p etitioner carries in an expunction pr oceeding

re quires proof that S ub section (c) does not appl y to forestall the expunctio n because

the acquit ted offense is part of a criminal e pisod e

. In re Expunction of J.B. , 564 S.W .3d

436, 4 40 (Tex. App.

— El Paso 2016, no pet.)

.

F inally

, the section of the Penal C o d e that S ubsecti on (c ) references fo r the

de f ini tion of “ crim inal episode ” p rovides alternate cir cumstances defining a criminal

e pis o de as follows :4

In this chapter, “criminal episod e” means th e commission of two o r

mor e offenses, regardless of whether the harm is dir ected toward or i nflicte d upon mo re t h a n on e person or item of p roperty, un der the fo llowing circumstances:

(1) t he of fenses are committed pursuant to the same transa ction

or pursuant to two o r mor e tran sactions that are connected or

c onstitute a common scheme or plan ; or

(2) t h e of

fenses are the repeat ed com mission of the same or si milar offenses.

Tex. P enal Cod e Ann

. § 3.0 1.

B

. Why I conclude that Appellee was not entitle d to expunction of t he

ar rest records related to her 2017 DWI

The question is whether t he i ncorporation of t he defin ition of cri minal episode

from P enal C ode S ection 3.01(2) in to the expunc tion exceptio n con ta ined in A rticle

55.01 (c) m e ans tha t expunction is not avai lable a fter acquittal for an offense if the

person ha s ever bee n convic ted of th e same or similar offense

, ev en though the

offense s are n ot connect ed temporally or factually

. My answ er i s th at expunction is

not availa ble in that ci rcumsta nce because of the plain la ng uage of the expunction

statu t e . Th us, I would hold that the trial co urt abused its d iscretion by ordering the

expunction of t he record s of App ellee’s arrest for th e 2017 DWI

.
My first reason for this interpret ation is based on a n e xaminat ion of the wor ds

of S ection 3.0 1(2) in is olati o n

— “ the offenses are the repeated commissi on of the

s a me o r similar offenses

. ” I d. § 3.01( 2 ). No thing in the claus e re quires the offe nse s to

have a temporal or a factual c onne ctio n . I n deed, the f irst alterna te definition in5

S ection 3.01(1 ) doe s require some nexus betwee n the offense s

— “ the offenses are

com m itte d pursuant to the same transaction o r pursuant to two or more transa ctio ns

th at ar e connected or constitute a common sc heme or plan

. ” Id. § 3. 01(1). T o re ad

S ubsection ( 2 ) to re quir e a n exus between th e offense s as specified in S ubsection ( 1 )

wou ld m ake S ubsection ( 2 ) meaningless

. The pri nciples of statut ory construct io n

direct us no t to adopt a construction tha t renders pr ovis i ons of a statute meaning less.

See City of Dallas v. TC

I W

. End, Inc. , 463 S.W.3d 53, 55

– 56 (Tex. 2015)

.

N ext, if one inse r t s t he definition of “ criminal episode ” fr om Penal Code

Sec tion 3.01(2 ) in to the langu age of the expunction exception contained in Code of

Criminal Procedure A rticle 55. 01(c), it yields the follo wing:

A court may n ot order the expuncti on of records and fil es rela ting to an arrest for an offense for w hich a person is subseque ntly ac quitted

, whe ther by the trial court, a court of a p p ea ls, or the court of criminal appeals, if the offense fo r whi ch th e person was acquitted arose out of [ repeated commission o f t he same or similar offenses ] , and the perso n

was c onvicted of at least one ot her off ense occurring during the criminal episode.

S ee Tex. Code Crim. Proc. Ann. art. 55.01(c) ( repla cing “ as d efine d by Section 3.01,

Penal Code ” with the bracketed language fr om Tex. Penal Code Ann. § 3.01(2) ). The

word s of this constru c tion plainly d o not i nclud e any requirement that the same or

simila r offense must have some temp oral or factual connection.

Fu rther
, a number of cases from the Corpus Christi

– Edinburg and San

Antonio C ou rts o f Appeal s read S ubsection 3. 01(2) ’ s de finit ion of crimin al episode as

not imp osing a particular time f rame for th e same o r simil ar offense to be repeate d or6

that the offens es be commi tted in the same or similar fashion

. See, e.g.

, Garcia v . State

,

No . 13

- 17

- 00218

- CR, 20 19 W L 1388532 , at *9

– 10 (Tex . App.

— Corpus Christi

–
Edinburg Mar . 28

, 2019, pet. ref ’ d) (mem. op. , n o t designa ted f or pu blication

)

( holding that acts of sexual as sault co mmitt ed agains t different children fell with in the

defini tion of c ri minal episode) ; Waddell v. State , 456 S .W.3 d 366 , 370 (Tex. A pp.

—
Corpus Christi

– Ed inbu r g 20 15, no pet.) ( “ [I] t was the repeated commi ssion of the

same offens e

—

indecency with a child

— that e stabl ished that the offenses charged in

separate counts i n the ind ic tment and for which [appellant] was convict ed we re part

o f th e same criminal episo de. ” ) ; Baker v. S tate
, 107 S.W.3d 67 1, 673 (Te x. Ap p.

— San

Antonio 2003, no pet. ) (

holding that “ because al l thr ee offense s entailed sexual assault

or at tempt ed sex ual assau lt , the y [were] similar offenses ” an d fell wi th in the definitio n

of criminal episode in s ection 3.01(2) ); Guidry v . St at e , 909 S.W

. 2d 5 84, 585 (Tex.

App.

— Corpu s Christi

– Edinburg 1995, pet. ref

’ d) (ex plain ing that secti on 3.01(2) does

not impose a time d ifferential be tween the commission of the same or similar

offe nses , and “ [h

] ad the [ l ] egislature want ed us to consider a time di ffer ential in the

a pplication of this secti on of the Code, it coul d have e asily done so ” ).

Ind eed, a number of opinions f ro m our si s ter cou rts hol d in consonance with

this interpretation of the expun ction sta tu te. These op inion s rely primarily on the

case s cit ed in the prio r paragraph and their holdin gs about the breadth of Penal C o d e

Section 3.01( 2)

. See In re Expunction of T.D.N., No. 08

- 19

- 0016 4

- CV, 2020 WL

5627222, at *2

– 6 (Tex. App.

–– El Paso Sept. 21, 20 20, no pet. h. ) ; In re M.T.R

.,7

No. 01

- 18

- 00938

- CV, 2020 WL 930842, at * 3

– 4 (Tex. App.

— Houston [1st Dist.]

Feb. 27, 2020, no p et.) ; Ex parte R.A.L., No. 04

- 19

- 00479

- CV, 2 020 WL 5575 42, at *2

(Tex. App.

— San Antonio Feb. 5, 2020, pet. deni ed) (mem. op. ) ; Ex parte J.A.B.

,

5 92 S. W.3d 165, 169 (Tex. App.

— San Antonio 2019, no pet.) ; Ex parte Rios , No. 04

-

19

- 00149

- CV, 2019 WL 42 80082, at *2 (Tex. App.

— San Antonio Sept. 11, 2019, no

pet. ) (m em. op .)

.

O u r role i s to search for the plai n meaning of the words used by the l egis lat ure.

W hen

, as set forth above

, the words of P enal Code S ect ion 3.01 (2) are in corporated

into the exception found in A rticle 55.01 (c)

, those word s require only the com mis si on

of the same or similar offense s . Nothing in th e words themselves or ho w they hav e

bee n interpreted require s a temporal or factua l nexus betwe en the t wo offense s

.

C

. Why I reject the trial court , Appellee , an d the majority ’ s
construc t ion s o f the expunc tion statute

Respe ctfully , t h e trial c ourt , Ap pellee , and majority’s construc tions of the

expunction statu te i mproper ly add conce pts to the w ords used by the statu t e and give

a parti cular word

— commission

— an out

- of

- context definition

.

1

. A s used in the e xpunction statu t e, t he term criminal episode doe s not require that the t wo offe nses must be capable o f bein g prose c ute d in a sing le cr iminal action

.
We begin by evaluating the trial court ’ s view of the statute. The trial court

appare n tly adopted a cons truction t h at turned on reading the definiti ons o f S ect ion

3.01 in the context of ot he r provisions of Chapter 3 of th e Penal Code. I disagree8

with that approach because it in e f fect incorp or ates la nguage into the expunction

statu te that the statu t e itself does n ot refe rence

.

I glean the trial cour t ’ s approac h from the following con clu si on of law :

18. The Article 55.0 1 (c) exception to acquitt al [

- ] expunction entitlement does not a p ply because P etiti one r ’ s 2017 DWI arrest, which resulted i n an acquittal in 2 019, did not arise out of “ a criminal episod e ” w

it h the p rior 2014 DWI final co nvict ion, a s that term is defined by T EX. PENAL CODE § 3 .01(2), b ecause the two cases could not hav e been joined at tr ial

. Specifically, the 20 14 conviction w as finally adjudic ated before the all eged commission of th e 20 17 a cq uitted DWI offense.

The t rial cour t superimposed on the de fini tion of crimin al episod e the

requi rement that the two offense s must be able to be joined at trial. Apparently , th e

trial c ourt found this ad diti onal re quirement by reading S ectio n 3. 01 o f the Penal

Code i n conj un ction with S ecti on 3. 02 t hat is titl ed “ Con solidation a n d J o inder of

Acti ons. ” S ee Tex

. P e nal Code Ann

. § 3.0 2. S ecti on 3. 02 (a) provides that “ [a]

defendant may be prosecuted in a si ngl e crimi nal action for all offenses aris ing out of

the same criminal e piso d e. ” Id. § 3.02( a). In essence , the trial court read t he

defini tion of c rim inal episode to include the re quirement that o ffenses d o not

constitute a criminal e p isode un les s they c an be pro secuted in a single action.

I disagree that such a requir eme nt sh ould be su perimposed on the exp unction

sta tute exce pti o n tha t relie s on the defi nition of a criminal episode

. T he exc eption

contained in A rticle 55.01 (c) make s no refe rence to S ectio n 3.02 of the Penal Code o r

to th e co ncept of consolidation in gener a l. A s the Departm ent notes, A rtic le 55 .01 (c )9

incorporat es Sec t

ion 3.0 1 ’ s d efinition in a free standing m anner, i.e., it simply

incorporates the definition without a ny of t he other co n cepts that a p ply the theory of

crimin al e pisode to c riminal trials. Whi le i m porting the c oncepts of when a cri minal

offen se may be pr o secuted in a single c riminal action may app ear reasonable

, I can n ot

find any indication in the words o f the statute that the l e gislat ure intended t hat result

w he n it incorporated only the defi nitio n al provision of Se cti o n 3.01 in to A rticle

55.01 (c)

. A s a lways, it is not an a ppellate court ’ s role to make a statu te conform to a

n otion of what is reasonable ; our role is to gl ean t he plain meaning f r o m the wor ds

used

. See J.A.B.

, 592 S.W.3d at 16 9

.

2. The use of the word “ commission , ” w hich is embodied in the trial cour t ’ s c on clusions and the majority opinion , doe s not fit the context as that word is used in the e xpunc tion

sta tu t e.

N ext, the trial cou rt ’ s conc lusi on s embody a concept tha t is a centr al emphasis

o f A ppel le e ’ s brief and the majority ’ s opin ion

— the no un “ commission ” used in

S ection 3. 01(2 ) m andates that a cr iminal episode must be based on two a c ts that

constitute crime s. T his argument appears in th e fo llowing conclu sions :

14. Texas Penal Code 3.01 requires the commiss ion of two offen ses prior to the fo r mation of a crimin al episode. The c onv iction in [the 20 13 DWI] is one comm ission of an offen s e. However, the a cquittal i n [the 2017 DWI] is not a “ repe ate d commissio n ” of the same or simi lar offense.

15. Th e Departm en t ’ s assertion tha t the arrest for an offense is the eq uivalent of the co mmi ssion of the offe nse is incorrect as a matter of law.10

Appellee ’ s brie f elabo rates on this concept tha t the use of t he word

“ commissi on ” i s pivotal by arguing that

[o] ne arres t for one allegation res ulting in on e acquittal, when combined with one pri or arrest for one offens e resulting in one conviction, doe s not result in a crimina l epis ode that would make the acquitted arres t exempt fr om ex punction pursuant to Penal Code 55.01 (c). State v. T.S.N. [ ( T.S.N. II

) ] , 54 7 S.W.3d 61 7

, 6 21 (Tex. 2018)

. Indeed

, there can be no [ “ ] re pea ted commission [ ” ] of a n offens e with one convict ion and one acquittal. See Tex

. Pe nal Code [Ann.] § 3.01. “Repeated commi ssion of the same offense” requires that the offense be committe d

more than once, ( [] Finding #14).

. . . .

The secti on (3) (b) definition of c ri minal episodes r equire [s] [that] the cri me be commit ted multiple time s. The Department assu mes that the arrest by itself is sufficient evidence of [ “ ] commis sion [ ” ] of an offense. The Depar tment is wrong

. B oth the Penal Code and [the] Cod e o f C riminal Procedu re p re clud e the arrest from establis hing the

com miss ion of the of

fense. See Tex. P enal Code [ Ann.] § 2.01; Tex. Code Crim. Proc. Ann. art. 38.03.

And t h e piv ot point of the majority op ini on a ccepts the trial court and

Ap pel lee’s rea soning. I n t he majority’s vie w ,
Article 55.01(c) refers direct ly to Penal Code Section 3.01 ’s de finition of a “crimi nal episode,” which includes “the commission of two or more offenses . . . [that] are the repeated commission of the same or si milar offenses.” Tex. P enal Code Ann. § 3

. 0 1(2) (emphasis added). T he wor d commissi on is not defined i n the Penal Code, but th e Penal Code uses the phrase “commission of” i n defi ning the elements of some offenses. See, e.g.

, i d

. § 22 .02 (a)(2) (aggravated assau lt with a deadly wea pon). The

wo r d ’s general ly acc epted mean ing is “the act of commi tting, performing, or doing.” Webster’s Third New Int’l Dictiona ry 457 (2002); see also Clinton v. State , 354 S.W.3d 795, 800 (Tex. Crim. App. 201 1) (“When determining th e fair, objective me aning of an u n d efined

sta tutory term, our Court may consult standar d dic tionaries.”). Blac k’s Law Dictionary defines the root verb commi t as “ [t]o perpetrate (a11

crime),” and Webster’s defines it as “to do or perform .” Commit , Black’s Law Dic tionary (11th ed. 20 19); W e b ster’s Third New Int’l Dictionary 457 (2002). Thus, we c

onclude that the us e of the word commission in this context

conte mplate s its commonly understood meaning of the actual performance of at least

t wo “same or similar offense s.” Tex. Penal Code Ann. § 3.01(2).

To prov e “com mission of

” an offense, the S tate 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, o r otherwise cha rged w ith an offense does not allow an i nference of guilt at trial. See Tex. Code Crim. Proc. Ann. art. 38.0 3; Tex

. Penal Code Ann. § 2.01. Here, K.T. showed via her acquittal judgment tha t the State failed to meet its evidentiary burden t o prove that s

he co mmitted DWI in

con nection wit

h her 2017 arrest. Therefore, there is no evidence in the record that K.T. re peated ly committed DWI; instead, the record shows that she has “commi[tted]” on ly the 2013 DWI. See Webster’s Third New Int’l D i c tionary 1924 ( 2002) (defining “repeat ed” as “ren ewed or recurring again and again” and “done . . . again”).

Maj. Op. at 12

– 13 ( emphas e s added).

As I understand the majority ’ s construction of the word “ commission ” in the

co ntext of the expunction st a t u te, it re qui re s t h e State to prove an offense o c curr ed

b eyond a reasonable doubt

, and th us the ju ry ’ s acquittal of Appellee for the 2017

DWI negate s t he p ossibilit y of a criminal ep isode because s he has not “ committ ed ”

two off ense s under the adopted def i n ition of the word “ commission

. ” I n my view

,

ado pt ing such a definition vi olates two cardinal principles of statutory construction

.

Firs t, we must read the words of a s tatute i n context :

While we must consider the specific statuto r y langua ge a t issue, w e must do so while l ooking to the statute a s a w ho le, rather than as “isolated provi sions.” We “endeavor to read the statute cont extually, giving effect to every word, cl ause, an d sentence.” We thus begin our analysis with the stat u t e ’ s wor ds a nd then c o nsider the ap parent me aning of those words with i n the ir context.12

Jaster v. Comet II C

onstr. , 438 S.W.3d 556 , 562 (Tex. 2014) (cit ations om itted ).

S e cond, an out

- of

- context liter al meaning of a word should not be adopted that

makes i ts us e absurd. Se e K M S Retail Row

lett, LP v. City of Rowlett

, 593 S

. W.3d 175, 183

(Tex. 2019) ( “ [W] e limit our analysis to the words o f the statute a nd apply the plain

meanin g of tho se words ‘ unless a differe nt meaning is apparent from the conte xt o r

the plain meaning leads t o absurd or n onse ns ical r e sult s. ’ ” (quoting Moli net v . Kimbrell

,
356 S.W.3d 407, 411 (Tex. 2011) ) )

.
With these p rinciple s in mi nd, I constru e the use o f the wo rd “ commission ” in

the co ntext of Section 3.01(2) ’ s us e with in Arti cle 55.01 (c) to mean the c o m mission o f

ac ts tha t form the basis for t h e char ge of an offense. In other wor ds, the legis lature

has ado pted wor ds expressing i ts policy deci sion that it will not accord a p etitioner t he

statutory privilege of exp u ncti on for an acq uitt ed offense i f the p etit ioner has ev er

been arrest ed for the commiss ion o f the same or similar off ense.

As support for this construction, I note that t he usual definition of

“ c o mmission ” is “an act of committing something .” Commission , Merriam

Web ster .com , ht tps://www.me rriam

- webster.com/dictionary/com m i ssi on (last

visited on Oct

. 15 , 2020)

. T he question t hat we confront is what acts does the word

“ commission ” refer to wh en S ectio n 3.0 1 (2) ’ s definition u s i ng the word s “ the

of fenses are the repeated commi ssion of the same or simi lar offenses ” is inco rpo ra ted

into the exception fo r expu n cti on contained in Article 55. 0 1 (c ) of the Code of

Criminal Procedure

. Expunction re quir es t hat the pet itioner have been a c qui tted of13

an offens e

. Se e gener

ally Tex. Code C r

im. Proc. A nn. art. 55.0 1

. Defini ng the word

“ c ommission ” to require a convictio n fo r th e sa me or similar offense s be f ore a

criminal episode occurs does not fit into a sc heme that is pr edicated on an acq u i tta l

for on e o f the off

ense s as a precondition to reli ef

. T h us, the w or d “ com mission ”

mus t mean s omething less than a jury ’ s havin g co ncluded that the petitioner

committed two offense s

. I n the internal structure of the expun ction statute , the w ord

“ com m i ssion ” is used in th e context of acts that ca use a per son to be placed under

ar rest : “ A per son wh o has been placed under a custodial or noncustodial arrest for

commission of either a felony or misdemeanor is entitled to have all records a nd files

relati n g to the arrest expun g ed

. . . . ” See id. art. 55 .01(a ). I read the word

“ commission ” in the context of the expunction statu t e to mean that the petitioner has

committed acts that have cause d her arrest for the sa m e or similar of fen se for which

the pet it i o ner bears a c o nvicti on. 1

1 The majority also criticizes t he Department ’s argument as follows:

T h e Department’s construction of Article 55.01( c)’s i n corporation of Section 3.01(2) attem pts to add words to the statu te ’s plain language. The Department would read Section 3.01(2) to include in a criminal episode “the repeated [arrest for or] commission o f the same or similar offenses.” But to read these additional words into the statu te wo uld deviate from the plain mean ing of the word commission intentionally used by the Legislature.

Maj. Op. at 13

. In my view, this cri ticism is unfounded. The Dep a r tment is simply trying to integrate into a co herent whole all the language found in the vari ous provi sions that are at play

.14

I therefore construe th e exp u nction stat u t e as not provid ing A ppellee with the

statutory privilege to expunge the arrest records relating to her 2017 DWI because of

the 20 13 DWI con viction

. Th ough the t wo offens e s are not rela t e d te mporally o f

factu a lly

, they constitute a crimi nal e p isode as th at term is used in the e xception to

expunction found in Art

icle 55.0 1 (c) of the Code o f Cri minal Pr ocedure. For that

reason, Appellee ’ s arrest recor d for the 2017 DW I is not available fo r e x pu nction

. 2

2 For th e sake of completeness, I will add ress two arguments raised by Appellee that cite the Texas Supre me Court’s opinion in T. S

. N. II and the opinion of the Dallas Court of Appeal s that the Texas S upreme C ourt a ffirm ed in T.S.N. II. See T.S.N. II

, 54 7 S.W.3d a t 621 ; St

ate v. T.S.N. ( T

.S.N. I ) , 523 S.W.3d 171 (Tex. App.

— Da llas 2017 )

, aff ’ d , 547 S.W.3d 617 (Tex. 2018)

.
Appellee f

i r st quote s T.S.N. II as holding that “ ‘ [ w]here an a r r est is made pursuant to a charge for a sing le of fense and the person is acquitted ... then arti c le 55.01( a)(1) entitles the person to expunction of all records and files relating to the

arrest. ’

. . . 54 7 S.W.3d [ at] 621 [.] ” Appell ee piv ots off this statem ent to argue that

[h ] ere , [ A p pellee] was arrested for a single c riminal a l legation and was acquitted of that charge

. The Dep a rtment concedes as much on the record

. Accor dingly, because on e o ffense ca n n ot make a criminal episode, the c riminal epis od e e xc eption does not apply, an d [Ap pellee] is entitled to an expunctio n of that arrest. [Record references omitte d.]

This argument offers no insight into the central question we analy ze of how Appellee’s c o nviction f

or the 2013 DWI im pact s our analysis of Ar ticle 55 .01(c )’s exception.

Appellee also argue s that th e T.S.N. I opinion “ determined that a Petitioner is

e ntitled to an acquittal

- expunction unless the acquitt ed offense wa s part of a single crimina l episode fo r whic h the defend ant remains at jeopardy

. See

. . . 5 23 S.W.3d [ at ] 174 [. ]” The Dallas co urt ’s statement does not conflict with my interpretation ; instead, the statement i s a general description of the sc heme of the expunction statute

a nd d o e s not address the question before us of inte grati ng t he language of Penal Code S ection 3.0 1(2 ) into A rticle 5 5.01(c) of the Code of Cr iminal Proc edure.15

I also agree with a nd find support in J us tice Evans ’ s recent dissent in Ex p a rte

F erris that dealt with the same issue that we grapple with. See Ex p arte Ferris

, No. 05

-

19

- 00835

- CV

, 2020 WL 5868217 , at *6

– 15 (T e x. App.

— Dallas Oct . 2, 2020, no pe t

.
h.) (en banc) (Evan s, J., dissenting) . Justice Evan s ’ s focus w as not o n the word

“ commission ” but on th e word “ offense” in section 3.01 (2) ’ s clause “ the offenses are

the repeated commission of the same or similar offenses. ” I d . at * 10

– 11. H is

rea soni n g produces the same r esult as my interpretation

— th a t th e expunction statute

cannot be read to m ean that a petitioner is entitled to expunction unless she in ef fect

w as convicted of a second similar offense. 3

3 The majority in F

e rris took a different tack t han the maj ority here and default ed to the view t hat t h e interpretation Justi ce Evans and I adopt is ab surd for

t he following reasons :

In t he co ntext of this expunction, the Department a nd the dissent ’ s position that the September 4, 2014 DWI arrest and conviction was the first act in furtherance of a “ crimin a l episode” that continued beyond adjudicati on, a serv ed sentence, and beyond the two

- year statute of limitation for a Class A misde meanor into April 19, 2018, when the second DWI arrest occurs, is an absurd reading of the expunction

statute. Such a cabin e d view of what constitutes a “criminal epis ode”

creat es an absurd, nonsensical result wher ein a single “criminal episode” would engu lf two DWI arrests, which (i) share no common or continuing pattern of facts; (ii) are impossible to prosecute as mul tiple
p r osecutions under Chapter 3 of the Texas Pe nal C ode ( through joinder); and (iii) coul d not share a concurrent sentence. As noted abo ve, the able trial judge was correct. T he dissent is “reading things in a vacuum.”

2020 WL 5868217 , at *4. Respec tfully

, J ustice Evan s and I (as w ell as the maj ori t y in

t his case ) are simply applying the inte rpre tive too ls at our disposal to do as we should16

Specificall y, Ju stice Evan s d ea lt with an ar g u ment that

the first use of “offenses” in section 3.01( 2) means two or more

conv ictions for offenses that are then desc ribed as being the same or similar [ ; ] [ the p etitioner seeking expungement in Ferris argued] because he was acq uitted in 2019, he had onl y one offense, t he 201 5 conviction, so section 3.01 (2) d oes not apply and the criminal e pisode exception to acquittal expunctio n in section 55.01(c) does not apply.

Id . at * 10

.
Ju stice E vans began his analysis by notin g the defi nition of offens e contain e d

in section 1. 03 of the P e nal Code. Id

. ; T e x. P e n al Co de Ann § 1.03 ( stating that

condu ct constitutes offense when “it is defined as an offe nse by statute, municipal

ordinance, orde r of a county commissioners court, or rule authorized by and lawfully

ado p t ed un der a statute ” ). Jus tice E van s then noted tha t the defi nitio n encom passed

only prohibit ed conduc t and di d not include “ concepts of arrest, charge, prosecution,

conviction, or acquittal. ” 2020 WL 5868217 , at * 1 1

.

Pivot ing off this definitio n , Just i c e Evans reasoned that

[t] h e [ P ] e n al [ C ] ode ’ s definition of “off ense” as prohibited conduct is evident in the text of [

A ] rticl e 55.01(c) of t he [C] ode of [C] riminal [P] rocedure. A rticle 55.01(c) provides [,]

A court may not order the expunction of record s and files relating to an arr

est fo r an offen se for which a person is s ubsequently acquitted

. . . if the offense for which the person was acquitted aro se out of a criminal episode, as defined by Section 3.01, P enal Code, and the person was convicted of o r

and glean the meaning of the of the words used by the legislature in the expunction

statu t e.17 remains subject to prosecuti on for at least on e other offense

occ urrin g during the criminal episode.

T ex. C ode C rim. P roc. [Ann.] art. 55.01(c) (emphasis add ed). Article 55.01(c) distinguis hes between an offense, whic h is prohibited conduct, and arrest ( “arrest for an offense”), pr osecut ion (“remain[

] subj ec t to prose cutio n”), conviction (“offense .

. . was convicted of”), and acquittal (“offense for which a pe rson is subsequently acquitted” and “offense for which the p erson was acquitted”).

The [P] ena l [C] ode ’ s definition of offen se in [S] ection 1.03 applies to [S] ec tion 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 direct ed toward or inflicted u p on more than one person or i tem of property, under the following c ircu mstances:

(1) the offenses are committed pursuant to the same transaction or pursuant to two or mor e transactions that are connecte d or constitute a common schem e or plan; or

(2) the o ffenses are the repeated com missio n of the same or similar offens e s.

T ex. P e nal Code [Ann.] § 3.01 (emphas [e] s added). In [S] ection 3.01, an “offense” is prohibited conduct which so meone can perpetrate (commit). N othing in the text of [S] ection 3.01 i n d icates “offense” is an

arres t, pro secution, conviction, or acquit tal. Because a c onviction cannot be committed by someone, but prohibited conduct can be committed by someone, [appellee ’ s] in terpretation is nonsensical. So, contrary to [appellee ’ s] argu m e nt , [A] rticle 55.01(c) and [ S] ecti on 3.01 do not convey the meani ng of “offense” as equivalent to “conviction.”

Id

.
Justice Ev an s ’ s d issent brings us by a different path to the same result : the

words o f S ection 3.01 should not be r ead in a way that i t produces a paradoxical result

that u nless a petitioner is convicted of a second similar offense she is entitled to18

expunction. I n that circumstance, the p e titioner would not be entitled to an

expunction, so why craft an exception in the first place ? T h e pregnant question is

what pur pose d o es such an un needed exce ption s erve? Justice Evans an d I are both

left to wonder why the legislature would see the need to craft an exception tha t serves

no purpose. 4

I II

. C onclu sion

The majo rity and I deal with t h e interpretation problems inhe rent w h en the

legislatu re imports stat utory provisions dealing with a part i cular topic in to a n other

sta tu te where the imported concept is an imprecise fit. The ma jority and I di sagree

about t he definiti on of the word “ commis s i on

. ” Because I view my inter pretat i on as

b e ing in harmony w

ith the lang

uage of the expunction statute , I respectfully dissent.

/s/ D a bney Bassel

Dabney Bassel Justice

Delivered: October 22, 2020

4 The m ajority opi nion a l s o notes that the El Paso Court o f Appeals ’ s dec ision in T.D.N. stated that “ [w

] e rea d statut es 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 c onvict

i o n , to block an expunction. ” 2020 WL 56272 22 , a t * 6

. The majority ’ s challenge to T

. D.N

. ’s rea son ing turns on its int erpterion of the word

“ commission

. ” M aj. Op. at 16

. I accept T.D.N

. ’s reasoning because I disagree with the majority ’s interpreta tion

.