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 
Ex 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 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 3

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 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 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 5

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 6

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]