### 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 conte nds the trial court erred in granting the expunction because the 20 07 driving while intoxicated offense for which
M.B.F

. was acquitted in 2008 constitutes the same "criminal episode" as a 20 00 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.
B ACKGROUND M.B.F. was arrested in June of 2007 for driving while intoxicate d , a second offense , and acquitted in November of 2008. Almost 11 years later, M.B.F. filed a petition for theEx parte M.B.F. Page 2 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 dri ving while intoxicated, and since the 20 00 and 20 0 7 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 h eld, and the trial court granted the petition for expunction

. I SSUE ON A PPEAL 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 t he 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 T EX
. C ODE
. C RIM
. P ROC . art. 55.01(a)(1)(A ), (c). Although requested b y the Court to file a brief responding to the Department’s issue, M.B.F. did not file a brief.
T here is no precedent from this Court regarding th e Department’s issue

. However, other courts of appeals, such as the San Antonio Court of Appeals, have addre ssed this same issue and have agreed with the Department’s position. After reviewing th at 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 )

. Petiti ons 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 3 S TANDARD OF R EVIEW A trial court's ruling on a petition for expunction is generally reviewed for abuse of discretion, but a tria l 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 , w e review the trial court's ruling de novo. See T.S.N ., 547 S.W.3d at 620.
L AW AND A PPLICATION 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 ., 54 7 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 relat ed to the person’s arrest expunged if the person is tried and acquitted of the offense. T EX
. C ODE C RIM
. P ROC . 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 offenseEx parte M.B.F. Page 4 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 T EX
. G OV ' T C ODE § 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 nonse nsical results. Id . at 621 ; Molinet v. Kimbrell , 356 S.W.3d 407, 411 (Tex. 2011)

. We presum e 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, 4 40 (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 infl icted upon more than one person or item of property," if "the offenses are the repeated commission of the same or similar offenses." T EX
. P ENAL C ODE § 3.01(2). It does
not impose a particular time frame within which the same or similar offenses must beEx parte M.B.F. Page 5 r epeated. 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, 44 1 (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. A ddition ally , sectio n 3.01(2) does not require th at 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 20 0 7 offense for driving while intoxicated constitutes "the repeated commission of the same . . . offense" as the 20 00 offense for driving while intoxicated for which M.B.F

. was convicted. See T EX
. P ENAL C ODE § 3.01(2). Thus , M.B.F.’s arrest record for the 20 0 7 offense of driving while intoxicated is not available for expunction. See T EX
. C ODE C RIM
. P ROC . art. 55.01(c). The Legislature has de termined 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 determinatio n , 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 6 C ONCLUSION Having sustained the Department’s sole issue on appeal, we reverse the trial court’s O rder of E xpunction and re nder judgment denying M.B.F’s P etition for
E xpunction

. 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 [CV 0 6]