# Fourth Court of Appeals **San Antonio, Texas** OPINION Nos. 04
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- CV EX PARTE J .A.B. , Jr. From the 216th Judicial District Court, Kerr County, Texas Trial Court Nos. 18
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- A Honorable N. Keith Williams, Judge Presiding Opinion by: Beth Watkins, Justice Concurring Opinion by: Rebeca C. Ma rtinez, Justice , joined by Liza A. Rodriguez, Justice Sitting: Rebeca C. Martinez, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice Delivered and Filed: October 23, 2019 REVERSED AND RENDERED The Texas Department of Public Safety appeals the trial court’s orders granting the petitions for expunction filed in the underlying causes by J .A.B., Jr. The Department contends the trial court erred in granting the expunctions because: (1) the offenses for which J.A.B. was acquitted arose out of the same criminal episode as an offense for which he was convicted; and (2) the evidence is insufficient to support the expunctions. We reverse the trial court’s orders and render judgment denying the petitions. B ACKGROUND J.A.B. filed petitions to expunge all criminal records and files pertaining to his 201 6 arrest for two offenses of assault of a public servant. The Department filed an original answer and general deni al asserting J.A.B. was not entitled to expunge the records of t his arrest because he04
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- w as convicted of the same or similar offenses which arose out of a criminal episode for which expunction is not available. 1 Specifically, the Department alleged J.A.B. w as previously convicted of the following same or similar offenses:

• one count of assault of a public servant in 2010;

• two counts of harassment of a public servant in 2010; and

• one count of aggravated assault with a deadly weapon in 2015
. The Department did not attend the hearing on J.A.B. ’s petitions
. J.A.B. testified the 201 6 charges were filed while he was in jail in Kerr County , and he was alleged to have assaulted two officers who were trying to restrain him after they found contraband
. He testified he was acquitted by a jury of the 201 6 charges. W ith regard to the 2015 aggravated assault with a deadly weapon charge, J.A.B. explained that offense occurred after he was released from the juvenile correctional facility. He was placed on deferred adjudication for the offense , but was later adjudicated and sentenced to seven years’ imprisonment. J.A.B. testified the victim in that offense was not a co rrectional officer, and he was not confined when the offense occurred. J.A.B. also stated the 2015 offense was “the offense dealing with the concert.” Finally, J.A.B. explained that the 2010 charges of harassment of a public servant involved him spitting on a correctional officer while in a juvenile correctional facility. He also explained the 2010 charge of assault of a public servant occurred when he was “playing tug of war” with a correctional officer and her walkie
- talkie. When he yanked the walkie
- talkie from her hand, he hit another officer he did not see standing next to him.

1 Throughout this litigation, the Department has referred to J.A.B.’s arrest as having occurred on January 23, 2017. The trial court found that arrest occurred on November 28, 2016.04
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- At the conclusion of the hearing, the trial court granted the petitions reasoning the 2015 offense was not the “same or similar” because it did not involve an assault on a law enforcement officer. The trial court also reasoned the 2010 offenses occurred when J.A.B. was a juvenile. The trial court’s written orders state J.A.B. was entitled to the expuncti ons under article 55.01(a)(1)(A ) of the Texas Code of Criminal Procedure. S TANDARD OF R EVIEW 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). Therefore, 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 ex punction ruling involves the interpretation and application of article 55.01(c) of the expunction statute; therefore, we review the trial court’s ruling de novo. See id. ; In re Expunction of J.B. , 564 S.W.3d 436, 439 (Tex. App.

— El Paso 2016, no pet.). D ISCUSSION The purpose of an expunction statute is to 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).

“ E xpun ction is not a right; it is a statutory privilege.” In re State Bar of Tex
. , 440 S.W.3d 621, 624 (Tex. 2014 )
. If an applicant who has been arrested for the commission of an offense meets all the requirements of the expunction statute , then all informatio n about the arrest is removed from the State’s records. S e e In re J.B. , 564 S.W.3d at 439. T he 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 . Texas’s expunction statute is codified in a rticle 55.01(a)(1)(A) of the Texas Code of Criminal Procedure , which permits a person to have all records and files relating to his arrest04
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- expunged if the person is tried and acquitted of th e offense. T EX . C ODE C RIM . P ROC . A NN . art. 55.01(a)(1)(A). That statute contains an exception which 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 ” and the p erson was convicted of at least one other offense occurring during the criminal episode. Id . art. 55.01(c). A rticle 55.01(c) incorporates the definition of criminal episode from Texas Penal Code section 3.01. Ex parte Rios , No. 04
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— San Antonio Sept. 11, 2019, no pet. h.). 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 in determining whethe r the trial court properly granted the expunctions. 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 reasona ble 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 abs urd or nonsensical results.” Id . at 621 (internal quotation omitted). We also “ operate under the presumption that the l egislature chooses a statute’s language with care, deciding to omit or include words purposefully. ” In re J.B. , 564 S.W.3d at 440. As this court recently recognized in Ex parte Rios , “[s] ection 3.01 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, 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 com mission of the same or similar offenses. ’ ”04
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- Ex parte Rios , 2019 WL 4280082, at *2 (quoting T EX . P ENAL C ODE A NN . § 3.01 ) . In this case, the Department focuses on the portion of the definition that defines criminal episode as two or more offenses which are “t he repeated commission of the same or similar offenses. ” Id
. 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 o ffe nses) ). “ H ad 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) doe s 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; Waddell , 456 S.W.3d at 370 ; see also Baker , 107 S.W.3d at 673 (noting repea ted commission of same or similar offenses under section 3.01 is distinct from continuing course of offenses involving similar facts); see generally Duncan v. State , No. 08
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— 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 pla n; or (3) have been repeated in a similar fashion .”). T he 201 6 offenses for assault of a public servant constitute “ the repeated commission of the same
. . . offense ” as the 2010 offense for assault of a public servant
. T EX . P ENAL C ODE § 3.01(2). T he Legislature has declared that arrest records from the repeated commission of the same offense are not available for expunction, even when arrests lead to acquittals. T EX . C ODE04
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- C RIM . P ROC . art. 55.01(c). For that reason, J.A.B.’s arrest reco rd for the 2016 offenses are not available for expunction. C ONCLUSION The trial court’s orders are reversed, and judgment is rendered denying the petitions for expunction. Beth Watkins, Justice