Summary
holding 2014 and 2018 DWIs are not part of the same "criminal episode" for purposes of expunction under Article 55.01 because offenses "could not be consolidated or joined for trial or sentencing under Penal Code §§ 3.02 –3.03"
Summary of this case from In re The Expunction of J.D.R.Opinion
No. 05-19-00835-CV
10-02-2020
EX PARTE Charles FERRIS
EN BANC OPINION
Appellee Charles Ferris filed a petition for expunction, seeking an order to have all records of his 2018 arrest for driving while intoxicated (DWI) expunged. The trial court granted the expunction order. Appellant Texas Department of Public Safety (the "Department") asserted, both in the trial court and now on appeal, that Ferris is not entitled to expunge the 2018 DWI arrest. Sitting en banc, we conclude that Ferris meets the statutory criteria entitling him to expunction of the 2018 arrest. We affirm the trial court's order.
I. BACKGROUND
On September 4, 2014, Ferris was arrested for DWI with a blood alcohol content of 0.15 or more, a Class A misdemeanor. On July 30, 2015, Ferris pleaded guilty to, and was found guilty of, that charge, which resulted in a final conviction. Ferris thereafter served twenty days in jail on the conviction. He is no longer subject to any jeopardy or restraint resulting from that conviction.
On April 19, 2018, Ferris was arrested for DWI second, a Class A misdemeanor. On March 6, 2019, a jury found that Ferris was not guilty of the charge.
On April 2, 2019, Ferris filed his petition for acquittal expunction, and on April 18, 2019, the court—without hearing—entered an Order Granting Expunction of Criminal Records relating to this acquittal pursuant to Texas Code of Criminal Procedure article 55.01(a)(1)(A). TEX. CODE CRIM. PROC. ANN art. 55.01(a)(1)(A).
On May 6, 2019, the Department filed a motion for new trial, which was heard on June 28, 2019, before the Honorable Mark Rusch. At the hearing, the Department argued that Ferris's April 19, 2018 arrest for DWI was a part of the same "criminal episode" under Section 3.01 of the Texas Penal Code as his September 4, 2014 arrest for DWI. Judge Rusch responded as follows:
All right. You're going to have to help me out here, Ms. Sicola. I've worked in the criminal justice system for 35 years as a prosecutor and as a judge. I'm board certified in criminal law, just so you know who you're talking to. I have never encountered this situation before. Okay? I've had, in my career as a prosecutor, guys who drove up and down the highway robbing people on both sides of the highway. Some on the same day. Some, like, the day after. I've prosecuted more sex offenders for multiple offenses against the same victim as I can count. I've presided over those cases. I've never seen a case where, after the first case is disposed of via a plea and the second crime occurs after the first case is disposed of, that that is described or included within the phrase "criminal episode."
The Department then argued:
[w]e're not talking about joinder or the consequences of joinder. What we're talking about is this rare circumstance that you have under the—under Chapter
55 of the code of criminal procedure where they incorporated this definition, specifically Section 3.01. [The legislature] didn't reference the entire Chapter 3 of the penal code. They picked up this language as a definition. They incorporated it in the 55.01(c). And, I agree that looking at it through the lens[ ] as a practitioner, as a judge, as a prosecutor and as a defense attorney that when you—when you look at these issues and you think of Section 3.01, you don't think of it in terms of looking at it through the lens[ ] of the expunction statute.... So[,] under these rare circumstances where you have an acquittal and a prior conviction for the same offense, we believe that the plain reading of the statute, the expunction statute, is that the acquittal expunction is not permitted. (emphasis added).
During the hearing, the Collin County Criminal District Attorney's office voiced no objection to the expunction. When asked by Judge Rusch whether the Criminal District Attorney's office had a position on this issue, the assistant criminal district attorney informed the judge that the Criminal District Attorney's office signed off on the expunction based on how it was presented and its interpretation of the law.
At the end of the hearing, Judge Rusch denied the Department's motion for new trial, concluding: "I understand the Department's position, and I understand limiting it to [Section] 3.01. But as I—my view of my job is to not read things in a vacuum." Upon request, the trial court issued findings of fact and conclusions of law, including the following:
1. The Petitioner is entitled to an expunction from his acquitted 2018 DWI charge pursuant to Tex. Code Crim. Proc. art. 55.01(a).
2. The Article 55.01(c) exception to acquittal expunction entitlement does not apply because Petitioner's 2018 DWI acquittal did not arise out of "a criminal episode" with his prior 2014 DWI final conviction as that term is defined by Tex. Penal Code § 3.01(2).
3. The 2014 DWI and the 2018 DWI are not part of the same "criminal episode" because they could not be consolidated or joined for trial or sentencing under Penal Code §§ 3.02 - 3.03.
The Department appealed thereafter. In two issues, the Department asserts (i) Ferris is not entitled to expunge his 2018 DWI arrest under the relevant expunction statute— Texas Code of Criminal Procedure article 55.01(a)(1)(A) —because of the exception to the expunction statute found in article 55.01(c), and (ii) the evidence is legally insufficient to conclude that Ferris was entitled to an expunction. See TEX. CODE CRIM. PROC. art. 55.01.
II. EXPUNCTION
A. Standard of Review
"A trial court's ruling on a petition for expunction is reviewed for abuse of discretion." State v. T.S.N. , 547 S.W.3d 617, 620 (Tex. 2018). "Under the abuse of discretion standard, appellate courts afford no deference to the trial court's legal determinations because a court has no discretion in deciding what the law is or in applying it to the facts." Id. (citing In re Labatt Food Serv., L.P. , 279 S.W.3d 640, 643 (Tex. 2009) ). "Thus, a trial court's legal conclusions are reviewed de novo." Id. (citing State v. Heal , 917 S.W.2d 6, 9 (Tex. 1996) ). However, "when we consider factual issues or matters committed to the trial court's discretion, we may not substitute our judgment for that of the trial court." Pollard v. Merkel , 114 S.W.3d 695, 697–98 (Tex. App.—Dallas 2003, pet. denied). As in this case, when the trial court's ruling hinged on a question of law—interpretation of article 55.01—we review the trial court's ruling de novo. T.S.N. , 547 S.W.3d at 620. "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." Id. (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 absurd or nonsensical results." Id. at 621 (internal quotation omitted). "We read words and phrases in context and construe them according to the rules of grammar and usage." Harris , 359 S.W.3d at 629.
See also Harris v. State , 359 S.W.3d 625, 629 (Tex. Crim. App. 2011) ("Statutory construction is a question of law, and we review the record de novo.").
"The legislature intended section 55.01 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) (citing Meyers v. State , 675 S.W.2d 798, 799 (Tex. App.—Dallas 1984, no writ) ).
"Where an arrest is made pursuant to a charge for a single offense and the person is acquitted ... then article 55.01(a)(1) entitles the person to expunction of all records and files relating to the arrest." T.S.N. , 547 S.W.3d at 621 (citing J.T.S. , 807 S.W.2d at 574 ). "Expunction is not a right; it is a statutory privilege." In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding). The statute is designed to protect wrongfully accused people from inquiries about their arrests. Id. To be entitled to an expunction, a petitioner must satisfy all of the statutory requirements of the expunction statute. Collin Cty. Dist. Attorney's Office v. Fourrier , 453 S.W.3d 536, 539 (Tex. App.—Dallas 2014, no pet.).
B. Expunction Statute
The statutory requirements for expunction are found in Code of Criminal Procedure article 55.01. Relevant here, article 55.01(a) provides:
A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or misdemeanor is entitled to have all records and files relating to the arrest expunged if ... the person is tried for the offense for which the person was arrested and is ... acquitted by the trial court, except as provided by Subsection (c)[.]
TEX. CODE CRIM. PROC . art. 55.01(a)(1)(A).
Subsection (c) contains an exception to the general provision permitting expunction of records following an acquittal. See TEX. CODE CRIM. PROC . art. 55.01(c). Article 55.01(c) provides:
A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted, whether by the trial court, a court of appeals, or the court of criminal appeals, if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code , and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
TEX. CODE CRIM. PROC . art. 55.01(c). (emphasis added). Penal Code Section 3.01 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 commission of the same or similar offenses.
C. Analysis
The Department, and the dissent, argue that pursuant to the statutes quoted above, Ferris was not entitled to expunction of his 2018 DWI arrest because of his 2014 DWI conviction. The Department asserts that Ferris's two DWI arrests meet Section 3.01(2)'s definition of criminal episode because the offenses "are the repeated commission of the same or similar offense." TEX. PENAL CODE § 3.01(2). The Department argues that, pursuant to the exception set forth in article 55.01(c) of the code of criminal procedure, the trial court should not have expunged Ferris's records relating to the 2018 DWI arrest—even though he was acquitted—because the 2018 DWI arrest "arose out of a criminal episode" involving the commission of the same offense as the 2014 DWI conviction. We do not agree with the Department.
Penal Code Section 3.01Here, the relevant definition of "criminal episode" is "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," when "the offenses are the repeated commission of the same or similar offenses." TEX. PENAL CODE § 3.01(2). The primary dispute in this case involves the interpretation of what constitutes a "criminal offense." "If the text of a statute is ambiguous, or the plain meaning leads to such absurd results, then we can consult extratextual factors, including: ... the title (caption), preamble, and emergency provision." Baumgart v. State , 512 S.W.3d 335, 339 (Tex. Crim. App. 2017) ; see also TEX. GOV'T CODE § 311.023.
In interpreting the language of Section 3.01, the Department and the dissent claim that if a person is (i) convicted of a crime and (ii) at any later time commits a second crime that is the same as or similar to the previously convicted crime, then the person is wholly precluded from expunction—regardless of acquittal for the second crime—because the second offense is a part of the same "criminal episode." However, the Department's interpretation overlooks the fact that Section 3.01 is housed under "Chapter 3. Multiple Prosecutions" and instead confines a "criminal episode" to the phrase, "commission of the same or similar offenses." The Department's interpretation removes analysis of the statute from a "cohesive, contextual whole." T.S.N. , 547 S.W.3d at 620.
Chapter 3 of the Texas Penal Code addresses multiple prosecutions. See TEX. PENAL CODE §§ 3.01 – 3.04. Specifically, Section 3.01 defines "criminal episode"; Section 3.02 permits consolidation and joinder of prosecutions; Section 3.03 provides sentencing guidelines for offenses arising out of the same criminal episode; and Section 3.04 discusses severance. See TEX. PENAL CODE §§ 3.01 – 3.04. The Department's focus on Section 3.01 and commission of a "same or similar" second offense would strip the prosecutorial aspect from Section 3.01—thereby missing the pattern of facts that constitutes the "criminal episode." See generally TEX. PENAL CODE § 3.01.
In the context of this expunction, the Department and the dissent's position that the September 4, 2014 DWI arrest and conviction was the first act in furtherance of a "criminal episode" that continued beyond adjudication, a served sentence, and beyond the two-year statute of limitation for a Class A misdemeanor into April 19, 2018, when the second DWI arrest occurs, is an absurd reading of the expunction statute. Such a cabined view of what constitutes a "criminal episode" creates an absurd, nonsensical result wherein a single "criminal episode" would engulf two DWI arrests, which (i) share no common or continuing pattern of facts; (ii) are impossible to prosecute as multiple prosecutions under Chapter 3 of the Texas Penal Code (through joinder); and (iii) could not share a concurrent sentence. As noted above, the able trial judge was correct. The dissent is "reading things in a vacuum."
The dissent identifies In re M.T.R. , a decision by the First Court of Appeals, which involved a fact pattern similar to this case. See In re M.T.R. , 606 S.W.3d 288, 290–91 (Tex. App.—Houston [1st Dist.] 2020, no pet.). In In re M.T.R. , the defendant was arrested in 2012 for boating while intoxicated (BWI) in Montgomery County. Id. He subsequently pleaded guilty to the 2012 BWI offense, was convicted, served his punishment, and paid a fine. Id. In October 2015, the defendant was arrested and charged with DWI in Fort Bend County. Id. The defendant was acquitted of the DWI charge in Fort Bend County, and he sought and obtained an expunction of the acquitted DWI arrest. Id. The Department appealed, and our sister Court held that the 2012 BWI and 2015 DWI were a part of the same criminal episode—interpreting Section 3.01's definition of "criminal episode" outside of the context of prosecution. Id. at 293–94. We disagree with their reasoning.
"M.T.R.'s attempt to rely on other cases applying the definition of ‘criminal episode’ in the context of whether certain prosecutions may be consolidated or whether a convicted defendant's sentences can run consecutively are likewise unavailing." In re M.T.R. , 606 S.W.3d at 293.
The Department and dissent's interpretation of "criminal episode" would lead to absurd results in the context of expunction. For example, consider the following hypothetical. As a seventeen-year-old, Jane Doe is convicted of shoplifting a $74.99 makeup kit (a Class C misdemeanor). Later, as a seventy-seven-year-old, Jane Doe is arrested and charged for the theft of $350,000.00 from her employer (a first-degree felony). Assume her case is then dismissed because the police arrested the wrong woman; further assume that the prosecutor so certifies under article 55.01(a)(2)(A)(i)(d) that she was the wrong person. See TEX. CODE CRIM. PROC. art. 55.01(a)(2)(A)(i)(d). The State ultimately convicts a different woman.
As noted above, the Collin County District Attorney's office did not oppose Ferris's expunction.
In this scenario, seventy-seven-year-old Jane Doe would be precluded from expunction of the first-degree felony arrest records because the "criminal episode" that began with the theft offense (of the makeup kit), occurring 60 years prior, would continue into the arrest for theft from her employer, occurring in mature adulthood. This wrongful arrest (and the agreement of the prosecutor, and basic fairness, notwithstanding) would potentially have significant collateral consequences on the rest of her life.
The Department, and now the dissent, frame this situation as a "rare circumstance. " See supra at 279–80. Let us consider speeding tickets. Does a Texas resident not have a right to an expunction after her first speeding ticket? That is most certainly not a "rare circumstance. " Many Texans receive and expunge their first speeding ticket around the age of seventeen. Under the Department and dissent's construction of the statute, all future speeding tickets are ineligible for expunction as they are part of a lifelong "criminal episode." Under that construction, how many Texans would be—even now—in the midst of such a criminal episode?
We reiterate that the Department's counsel stated to the trial court:
I agree that looking at it through the lens[ ] as a practitioner, as a judge, as a prosecutor and as a defense attorney that when you -- when you look at these issues and you think of Section 3.01, you don't think of it in terms of looking at it through the lens[ ] of the expunction statute.
In her own argument, counsel for the Department concedes that its construction of "criminal episode" (expunction) is not the commonly understood meaning of that term. Certainly, no such unusual construction is indicated by the expunction statute. If the Legislature wanted an unusual definition to apply to expunctions, it could have defined "criminal episode" for expunctions as such in the statute. Instead, article 55.01(c) cites a commonly understood term of art in criminal law. "Even when a statute provides its own definition or explanation of a term ... in applying that definition, we should not ignore altogether the common meaning of the words being defined, unless the statutory text compels otherwise." Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC , 591 S.W.3d 127, 135 (Tex. 2019).
See supra at 281.
The dissent's interpretation of "criminal episode" fits the adjective definition of "absurd"—"ridiculously unreasonable, unsound, or incongruous." Absurd , MERRIAM WEBSTER , https://www.merriam-webster.com/dictionary/absurd, (last visited October 2, 2020). The dissent's broad definition of "criminal episode" is "overly harsh and strays from the Legislature's original intent." Ex parte J.A.B. , 592 S.W.3d 165, 170 (Tex. App.—San Antonio 2019, no pet.) (Martinez, J., concurring).
The trial court correctly read article 55.01 and Section 3.01 that the "2014 DWI and the 2018 DWI are not part of the same ‘criminal episode’ because they could not be consolidated or joined for trial or sentencing under Penal Code §§ 3.02 - 3.03." The alleged April 19, 2018 DWI offense does not constitute a "criminal episode" in combination with the September 4, 2014 DWI conviction, thereby precluding expunction. "We conclude that an admission of guilt to an offense that does not arise from the same criminal episode as an offense for which the accused is acquitted and for which the accused was charged prior to being arrested does not bar an expunction of records concerning the acquitted offense." State v. T.S.N. , 523 S.W.3d 171, 176 (Tex. App.—Dallas 2017), aff'd , 547 S.W.3d 617 (Tex. 2018). For that reason, Ferris's arrest record for the 2018 DWI offense is available for expunction. We overrule the Department's first issue that Ferris was not entitled to expunction of an acquitted charge under article 55.01(c).
III. LEGAL SUFFICIENCY
A. Standard of Review
"The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing the evidence supporting a jury's verdict." Scott Pelley P.C. v. Wynne , No. 05-15-01560-CV, 2017 WL 3699823, at *8 (Tex. App.—Dallas Aug. 28, 2017, pet. denied) (mem. op.). The Department, as the party challenging the legal sufficiency of the evidence on a matter for which it did not bear the burden of proof, "must demonstrate on appeal there is no evidence to support the trial court's adverse findings." Qui Phuoc Ho v. MacArthur Ranch, LLC , 395 S.W.3d 325, 328 (Tex. App.—Dallas 2013, no pet.) (citing Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983) ). The Texas Supreme Court instructs:
"No evidence" points must, and may only, be sustained when the record discloses one of the following situations: (a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; (d) the evidence establishes conclusively the opposite of the vital fact.
City of Keller v. Wilson , 168 S.W.3d 802, 810 (Tex. 2005) (citation omitted). We "consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support it." Id. at 822. When reviewing the record, an appellate court decides whether any of the evidence supports the challenged finding of fact. See Sheetz v. Slaughter , 503 S.W.3d 495, 502 (Tex. App.—Dallas 2016, no pet.). "If more than a scintilla of evidence exists to support the finding of fact, the legal sufficiency challenge will not prevail." Scott Pelley , 2017 WL 3699823, at *8. "More than a scintilla of evidence exists if the evidence ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ " Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharm., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997) ).
B. Analysis
Here, the Department argues that the record is devoid of any evidence that the 2014 DWI did not result in a conviction and that, therefore, the record precludes expunction of the 2018 DWI arrest based on the Department's above-discussed interpretation of what constitutes a "criminal episode" and of the exception to expunction under article 55.01(c). See TEX. CODE CRIM. PROC . art. 55.01(c). The evidentiary record shows that (i) Ferris was arrested for a DWI second Class A misdemeanor on April 19, 2018, and (ii) Ferris was acquitted by a jury finding of not-guilty to the offense of DWI second, Class A misdemeanor on March 6, 2019. The Department does not dispute or controvert those facts, which are vital to Ferris's expunction.
Because we conclude that the 2014 DWI and 2018 DWI arrest are not a part of the same "criminal episode" and in light of the undisputed evidentiary record, we conclude that there was sufficient evidence to support the trial court's judgment. We overrule the Department's second issue that the evidence was legally insufficient to conclude Ferris was entitled to an expunction.
IV. CONCLUSION
The trial court's order is affirmed.
Evans, J., dissenting, joined by Burns, C.J., and Whitehill, Schenck, Partida-Kipness, and Browning, JJ.
EN BANC DISSENTING OPINION
Dissenting Opinion by Justice Evans
Texas Department of Public Safety appeals the trial court's expunction of appellee Charles Ferris's 2018 arrest records for the offense of driving while intoxicated after a jury acquitted him in his 2019 trial. The trial court decided Ferris was entitled to acquittal expunction. See TEX. CODE CRIM. PROC. art. 55.01(a)(1)(A). Although Ferris had a 2014 arrest and 2015 conviction for a DWI offense, the trial court decided the criminal episode exception to acquittal expunction did not apply. See id. art. 55.01(c) ("A court may not order the expunction ... if the offense for which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted...."). Section 3.01(2) provides,
"[C]riminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person ... [when] the offenses are the repeated commission of the same or similar offenses.
TEX. PENAL CODE § 3.01(2) (emphasis added). Section 3.01(2) defines "criminal episode" without requiring offenses to be close in proximity of time or location or part of the same or related transaction or conspiracy. Instead, according to the statute, offenses comprising a criminal episode could be years apart at different locations (as Ferris's were). All the statute requires is that the offenses be the same or similar (as Ferris's were). The trial court, however, decided section 3.01 had to be limited to offenses in close proximity of time and place or part of one transaction. Because proper statutory construction does not include rewriting the statute and for all the reasons stated below, I would reverse and render judgment denying expunction of the 2018 arrest records for the offense of driving while intoxicated. Because the majority reaches the opposite conclusion, I respectfully dissent.
I.
DPS raises two issues: the trial court abused its discretion ascertaining the law and applying the law to the facts. I agree.
II.
Ferris does not have a right to expunction upon acquittal because no one has a right to expunction; it is a statutory privilege controlled by the discretion of the legislature and "is an exception to the established principle that court proceedings and records should be open to the public." See In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014) ("Expunction is not a right; it is a statutory privilege."); In re Expunction of M.T. , 495 S.W.3d 617, 620 (Tex. App.—El Paso 2016, no pet.) ("The right to expunction is neither a constitutional nor a common-law right, but rather a statutory privilege."). As a result, "courts must enforce the statutory requirements and ‘cannot add equitable or practical exceptions ... that the legislature did not see fit to enact.’ " Ex parte E.H. , 602 S.W.3d 486, 489 (Tex. 2020) (quoting In re Geomet Recycling LLC , 578 S.W.3d 82, 87 (Tex. 2019) (orig. proceeding) ). In addition, expunction is a civil matter even though the statutory authority for it is in the code of criminal procedure. Id. ("Although the expunction statute appears within the code of criminal procedure, an expunction proceeding is civil in nature.") (citing State v. T.S.N. , 547 S.W.3d 617, 619 (Tex. 2018) ). "Because an expunction proceeding is civil rather than criminal in nature, the petitioner bears the burden to prove all statutory requirements have been satisfied." Ex parte Enger , 512 S.W.3d 912, 914 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing Tex. Dep't of Pub. Safety v. J.H.J. , 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.)).
We review a trial court's ruling on a petition for expunction for an abuse of discretion. T.S.N. , 547 S.W.3d at 620. The trial court has no discretion to incorrectly decide what the law is or misapply it to the facts. Id. We review the trial court's legal conclusions de novo. Id.
Here, the trial court's ruling on the expunction request hinged on a question of law because it required the interpretation of article 55.01 ; therefore, it is subject to de novo review. City of Rockwall v. Hughes , 246 S.W.3d 621, 625–26 (Tex. 2008) (stating that statutory construction is a question of law).
Id.
We construe statutes with the "primary objective ... to ascertain and give effect to the Legislature's intent." Hernandez v. Ebrom , 289 S.W.3d 316, 318 (Tex. 2009). When "the Legislature provides definitions for words it uses in statutes, then we use those definitions in our task." Id. "We give effect to legislative intent as it is expressed by the statute's language and the words used, unless the context necessarily requires a different construction or a different construction is expressly provided by statute." Id. "Unambiguous statutory language is interpreted according to its plain language unless such an interpretation would lead to absurd results." Id. (citing Fleming Foods of Tex., Inc. v. Rylander , 6 S.W.3d 278, 284 (Tex. 1999) ). Because the statutes that must be construed in this case are in the penal code and code of criminal procedure, I note the Texas Court of Criminal Appeals takes the same approach to statutory construction as the Texas Supreme Court quoted above:
In interpreting statutes, we seek to effectuate the Legislature's collective intent and presume that the Legislature intended for the entire statutory scheme to be effective.... To achieve this goal, we necessarily focus our attention on the literal text of the statute and attempt to discern the objective meaning of that text at the time of its enactment.... If the language is unambiguous, our analysis ends because the Legislature must be understood to mean what it has expressed, and it is not for the courts to add to or subtract from such a statute .
Bays v. State , 396 S.W.3d 580, 584–85 (Tex. Crim. App. 2013) (emphasis added; citations omitted).
III.
The facts are neither complicated nor disputed. In 2014, Ferris was arrested for DWI and charged with DWI Blood Alcohol Content >0.15, a Class A misdemeanor. In 2015, he pleaded guilty and was convicted for DWI Blood Alcohol Content >0.15. In 2018, Ferris was again arrested for and charged with DWI Class A misdemeanor. This time, a jury acquitted him in 2019. Shortly thereafter, Ferris filed this petition for acquittal expunction, which the trial court granted without a hearing. DPS timely moved for a new trial arguing the same contentions it now asserts on appeal. After hearing DPS's motion, the trial court stated its understanding of section 3.01 and solicited DPS's counsel to explain further:
THE COURT: All right. You're going to have to help me out here, Ms. Sicola [representing DPS].
I've worked in the criminal justice system for 35 years as a prosecutor and as a judge. I'm board certified in criminal law, just so you know who (sic) you're talking to.
I have never encountered this situation before. Okay?
I've had, in my career as a prosecutor, guys who drove up and down the highway robbing people on both sides of the highway. Some on the same day. Some, like, the day after.
I've prosecuted more sex offenders for multiple offenses against the same victim [than] I can count.
I've presided over those cases.
I've never seen a case where, after the first case is disposed of via a plea and
the second crime occurs after the first case is disposed of, that that is described or included within the phrase "criminal episode."
After DPS's counsel's further argument, the trial court had the following exchange with DPS's counsel:
THE COURT: I've tried to research this, and I have had no luck finding any case anywhere that addresses this issue. My phone call[s] to the staff attorneys down in Dallas have gone unanswered.
Ms. Sicola, are you aware of any case that interprets the expunction statute this way?
MS. SICOLA: Judge, we have been litigating this issue throughout the State of Texas. Several judges have agreed with our interpretation. Some judges have not.
We have cases on appeal in multiple appellate courts right now on this issue.
THE COURT: Has any appellate court decided any of these cases?
MS. SICOLA: We don't have a final -- we don't have a final opinion issued yet.
THE COURT: Has some court issued an opinion that the State has -- or that DPS has requested rehearing on?
MS. SICOLA: Actually, some of the trial courts have, but not the appellate courts yet.
THE COURT: Okay.
MS. SICOLA: And there have been multiple trial courts that have denied the acquittal expunction. Some of those have been appealed. Some of those were not appealed.
THE COURT: I'm just trying to figure out the appellate case law.
The First Judicial Administrative Region employs a few full-time attorneys to assist the criminal district judges in the region when they request research on legal issues in order to avoid reversals and retrials that would cost the taxpayers much more than the cost of the research attorneys. The attorneys are located in the region's offices in the criminal courthouse in Dallas, Texas.
(Emphases added). After more discussion, DPS added an additional comment and the trial court explained its ruling:
[Ms. Sicola for DPS]: We're -- again, we don't have a published appellate court opinion. But, yes, this issue, in one of those cases [on appeal], has been addressed by the appellant.
THE COURT: I understand the Department's position, and I understand limiting it to 3.01.
But as I -- my view of my job is to not read things in a vacuum. Yes, that's the definition that they [the Legislature] applied. But I don't know of any court that has ever applied that definition to this situation, and I'm not willing to do it until some appellate court tells me I'm wrong or tells some other judge that they're wrong.
So, respectfully, your motion for new trial is denied and overruled.
(Emphasis added). The trial court denied DPS's motion, unfortunately, without the guidance of more than two decades of appellate authorities cited below in this opinion which the trial court earnestly sought. DPS timely perfected this appeal.
Although it can seem unfair to a trial judge who requested and tried to obtain appellate authority while counsel even told him there was no such authority, all that is required for DPS to preserve its issue and arguments for appeal was to present them to the trial court, which it did. See Tex. R. App. P. 33.1. The record does not reflect that DPS sought to mislead the trial court regarding the law.
IV.
As pointed out above, the text of section 3.01(2), "repeated commission of the same or similar offenses," does not contain any requirement for proximity of time or place nor a requirement that the offenses be part of a larger transaction or conspiracy. Many courts of appeals have considered the statute and articulated a version of this statement: " Section 3.01(2) does not impose a time differential between the commission of the same or similar offenses." In re M.T.R. , 606 S.W.3d 288, 292 (Tex. App.—Houston [1st Dist.], 2020, no pet.) ; Ex parte J.A.B. , 592 S.W.3d 165, 169 (Tex. App.—San Antonio 2019, no pet.) ; Ex parte Rios , No. 04-19-00149-CV, 2019 WL 4280082, at *2 (Tex. App.—San Antonio Sept. 11, 2019, no pet.) (mem. op.) ; Waddell v. State , 456 S.W.3d 366, 369 (Tex. App.—Corpus Christi–Edinburg 2015, no pet.) ; Casey v. State , 349 S.W.3d 825, 831 (Tex. App.—El Paso 2011, pet. ref'd) ; Guidry v. State , 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi-Edinburg 1995, pet. ref'd). The court in Guidry may have originated the statement quoted above, and it added thereafter, "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.
Ferris urges memorandum opinions are not precedential, but he is only partially correct. Unpublished criminal opinions are not precedential. See Tex. R. App. P. 47.7(a). All civil opinions after January 1, 2003 are precedential. See id. 47.7(b) and cmt. And expunction cases are civil. See Ex parte E.H. , 602 S.W.3d at 489 ; T.S.N. , 547 S.W.3d at 619.
The legislature's decision to not grant the privilege of acquittal expunction to defendants with a prior conviction for the same or similar offense is quite sensible. Acquittal does not mean Ferris was innocent, and it does not prove the absence of probable cause for the 2018 DWI arrest. It only means the jury decided the State did not prove its case beyond a reasonable doubt. Sections 55.01(c) and 3.01(2) embody the legislature's decision that an arrested repeat offender, even one subsequently acquitted at trial, would likely have been arrested and prosecuted on probable cause and therefore is not deserving of the legislature's privilege of expunction. And the legislature could have viewed a wrongly charged person who was never before convicted of the same offense as deserving a chance to clear his record. But once a defendant has been convicted, he has a criminal record, and sections 55.01(c) and 3.01(2) embody the legislature's decision that the need to clear his record of a later offense is less compelling. In effect, the expunction statute allows a defendant to deny he has ever been arrested. See TEX. CODE CRIM. PROC. ANN. art. 55.03(1) ("the release, maintenance, dissemination, or use of the expunged records and files for any purpose is prohibited"); id. art. 55.03(2) ("the person arrested may deny the occurrence of the arrest and the existence of the expunction order"). But there is little purpose in granting a defendant the privilege of denying he was arrested a second time, if his records show his prior arrest and conviction for the same offense. Perhaps the legislature thought an employer may have a reasonable interest in knowing a potential employee may have committed the same offense more than once, even if that defendant was ultimately able to convince a jury that he was not guilty the second time.
If Ferris had proved the absence of probable cause for his arrest as hypothecated by the majority opinion, there may be other remedies outside of the expunction statute. As that is not the case, I need not speculate about any other remedies that might be available in that circumstance.
Thus the plain meaning of the criminal episode exception to acquittal expunction does not result in an absurd result: it does not grant the privilege of expunction to an acquitted defendant who already has a conviction for the same or similar offense for which there is no expunction so the old conviction remains in his record. As I observed above, "[u]nambiguous statutory language is interpreted according to its plain language unless such an interpretation would lead to absurd results." Hernandez , 289 S.W.3d at 318. Accordingly, because the language is unambiguous and the result is not absurd, "our analysis ends because the Legislature must be understood to mean what it has expressed, and it is not for the courts to add to or subtract from such a statute." Bays , 396 S.W.3d at 585. Or as stated by the supreme court, "courts must enforce the statutory requirements and ‘cannot add equitable or practical exceptions ... that the legislature did not see fit to enact.’ " Ex parte E.H. , 602 S.W.3d at 489 (quoting In re Geomet Recycling , 578 S.W.3d at 87 ).
V.
DPS points out section 3.01(1) of the penal code actually contains a provision closely fitting what the trial judge stated the statute section 3.01(2) should be interpreted to mean. Section 3.01(1) provides:
"[C]riminal episode" means the commission of two or more offenses, regardless of whether the harm is directed toward or inflicted upon more than one person ... [when] 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.
TEX. PENAL CODE § 3.01(1) (emphasis added). Section 3.01(1) limits offenses that constitute a criminal episode to those committed as part of the same transaction, connected transactions, or conspiracy. See id. Thus, section 3.01(1) does not require the offenses to be repeated commission of the same or similar offenses. See id. But when this Court, as the trial court did, imposes the transaction requirement of section 3.01(1) on the repeated offenses scope of section 3.01(2) it renders section 3.01(2) a nullity because all repeated offenses that are also part of the same transaction are already included in section 3.01(1)'s scope of "same transaction."
Ferris argues the first use of "offenses" in section 3.01(2) means two or more convictions for offenses that are then described as being the same or similar. According to Ferris, because he was acquitted in 2019, he had only one offense, the 2015 conviction, so section 3.01(2) does not apply and the criminal episode exception to acquittal expunction in section 55.01(c) does not apply. Ferris does not cite any authority that has agreed with his argument, which I will analyze next.
Contrary to Ferris's argument, when the legislature provides a definition, we use it to construe the statute. Hernandez , 289 S.W.3d at 318. Conduct constitutes an "offense" when "it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute." TEX. PENAL. CODE § 1.03. So "offense" is conduct that is prohibited by statute or statutory equivalent. See id. Nothing in section 1.03 includes in the definition of "offense" concepts of arrest, charge, prosecution, conviction, or acquittal. "Offense" is just prohibited conduct.
The penal code's definition of "offense" as prohibited conduct is evident in the text of article 55.01(c) of the code of criminal procedure. Article 55.01(c) provides:
A court may not order the expunction of records and files relating to an arrest for an offense for which a person is subsequently acquitted ... if the offense for
which the person was acquitted arose out of a criminal episode, as defined by Section 3.01, Penal Code, and the person was convicted of or remains subject to prosecution for at least one other offense occurring during the criminal episode.
TEX. CODE CRIM. PROC. art. 55.01(c) (emphasis added). Article 55.01(c) distinguishes between an offense, which is prohibited conduct, and arrest ("arrest for an offense"), prosecution ("remain[ ] subject to prosecution"), conviction ("offense ... was convicted of"), and acquittal ("offense for which a person is subsequently acquitted" and "offense for which the person was acquitted").
The penal code's definition of offense in section 1.03 applies to section 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 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 commission of the same or similar offenses.
TEX. PENAL. CODE § 3.01 (emphasis added). In section 3.01, an "offense" is prohibited conduct which someone can perpetrate (commit). Nothing in the text of section 3.01 indicates "offense" is an arrest, prosecution, conviction, or acquittal. Because a conviction cannot be committed by someone, but prohibited conduct can be committed by someone, Ferris's interpretation is nonsensical. So, contrary to Ferris's argument, article 55.01(c) and section 3.01 do not convey the meaning of "offense" as equivalent to "conviction."
Moreover, if Ferris were correct that "offense" is equivalent to "conviction" in article 55.01(c) and section 3.01, neither statute would make sense. For example, on Ferris's interpretation, article 55.01(c) would describe being arrested for a conviction, pending trial for a conviction, being convicted for a conviction, and being acquitted of a conviction. Section 3.01 would be just as nonsensical on Ferris's interpretation because the statute would describe commission of two or more convictions, convictions committed as part of a transaction, and convictions that are committed repeatedly. To avoid this absurdity, Ferris argues we should select out of context only the second-to-last usage of "offense" in section 3.01(2) and change its meaning to "conviction." Here is the statute, Ferris's selective substitution, and a consistent substitution of terms:
| § 3.01(2) text: | " ‘criminal episode’ means the commission of two or more offenses [when] the offenses are the repeated commission of the same or similar offenses" |
| Ferris's re-write: | " ‘criminal episode’ means the commission of two or more offenses that are convictions for offenses |
|---|---|
| If Ferris's re-write used consistent substitution: | " ‘criminal episode’ means the commission of two or more convictions for offenses that are convictions for offenses |
Thus, Ferris's selective emendation of the statute serves his argument, but if the substitution is done consistently it renders the statute meaningless.
Courts are required to interpret statutes as a "cohesive, contextual whole." T.S.N. , 547 S.W.3d at 620–21. I reject Ferris's interpretation of section 3.01(2), and instead I conclude the textual analysis as part of interpreting the statutes as a "cohesive, contextual whole" is the plain meaning of the unambiguous text of section 3.01(2) : "criminal episode" means the repeated commission of the same or similar offense without limitation of time, place, same or related transaction, or conspiracy.
Ferris argues from this passage in T.S.N. the supreme court decided the acquittal expunction in his favor:
Where an arrest is made pursuant to a charge for a single offense and the person is acquitted ... then article 55.01(a)(1) entitles the person to expunction of all records and files relating to the arrest.
T.S.N. , 547 S.W.3d at 621 (citing Harris Cty. Dist. Attorney's Office v. J.T.S. , 807 S.W.2d 572, 574 (Tex. 1991) ). But the supreme court pointed out in its T.S.N. opinion that what it decided in T.S.N. is not the criminal episode exception to acquittal expunction. The court wrote:
And where an arrest is made pursuant to a charge or charges for multiple related offenses as part of a criminal episode , the statute just as clearly does not entitle the person to expunction of any files and records relating to the episode
if the person either is convicted of one of the offenses or charges for one of the offenses remain pending. See id. art. 55.01; TEX. PENAL CODE § 3.01. But this case differs from either scenario. Here, a single arrest occurred for multiple unrelated offenses.
Id. (emphases added). Importantly, my construction of section 3.01(2) is consistent with the supreme court's gloss of article 55.01 and section 3.01 quoted above. Moreover, the supreme court explained why T.S.N.'s "case differs from" the criminal episode exception to acquittal expunction. Id. The court explained that T.S.N. had a single arrest for two offenses: a 2013 assault charge and a 2010 theft charge. Id. The supreme court decided the straight-forward application of the acquittal expunction statute entitled T.S.N. to have her arrest records expunged even though those arrest records included her arrest for a different charge in addition to the one for which she was acquitted. Id. at 621–23. No one argued that, and the supreme court did not consider whether, the criminal episode exception in article 55.01(c) and section 3.01 applied in any way to T.S.N. In other words, the government did not contend T.S.N.'s 2013 assault offense and 2010 theft offense were part of the same or related transaction or were repeated commissions of the same or similar offenses (which they obviously were not). So T.S.N. does not negate, and its dicta supports, my construction of section 3.01(2) that, "where an arrest is made pursuant to a charge or charges for multiple related offenses as part of a criminal episode, [ article 55.01(c) ; section 3.01 ] clearly does not entitle the person to expunction of any files and records relating to the episode if the person ... is convicted of one of the offenses." Id. at 621.
Finally, Ferris turns to this Court's intermediate decision in T.S.N.'s case. See State v. T.S.N. , 523 S.W.3d 171 (Tex. App.—Dallas 2017), aff'd. , 547 S.W.3d 617 (Tex. 2018). But as the supreme court pointed out, this Court's opinion has nothing to do with the criminal episode exception to acquittal expunction in article 55.01(c) and section 3.01. See T.S.N. , 547 S.W.3d at 621. Indeed, our Court expressly rejected the State's reliance on authorities informed by the criminal episode exception to acquittal expunction, stating:
The cases to which the State directs our attention are materially inapposite in that they involve: ... (iii) offenses stemming from the same criminal episode, putting them squarely in the explicit exception of subsection (c), see, e.g., Texas Dep't of Pub. Safety v. M.R.S. , 468 S.W.3d 553, 557 (Tex. App.—Beaumont 2015, no pet.), not unrelated offenses as here.
T.S.N. , 523 S.W.3d at 174–75 (emphasis added). The supreme court's gloss in T.S.N. of the criminal episode exception to acquittal expunction confirms my analysis, and nothing in either T.S.N. opinion is at odds with my construction of that exception.
Interspersed throughout Ferris's brief is the repeated argument that the State failed to meet its burden of proof, as though the State had a burden to prove Ferris was not entitled to expunction. But expunction is a civil matter. Ex parte E.H. , 602 S.W.3d at 489 ; T.S.N. , 547 S.W.3d at 619. So, the State did not have a burden to prove Ferris was not entitled to expunction; rather, as in every civil case, Ferris bore the burden to prove he was entitled to expunction. Tex. Dep't of Pub. Safety v. Dicken , 415 S.W.3d 476, 479 (Tex. App.—San Antonio 2013, no pet.).
VI.
I agree with both Justices Ginsburg and Scalia's statements that "a reviewing court's ‘task is to apply the text [of the statute], not to improve upon it,’ " E.P.A. v. EME Homer City Generation, L.P. , 572 U.S. 489, 508–09, 134 S.Ct. 1584, 188 L.Ed.2d 775 (2014) (Ginsburg, J., for majority) (quoting Pavelic & LeFlore v. Marvel Entm't Grp. , 493 U.S. 120, 126, 110 S.Ct. 456, 107 L.Ed.2d 438 (1989) (Scalia, J., for majority) ("Our task is to apply the text, not to improve upon it.")). Or, as Justice Sotomayor stated during her confirmation hearing, "Judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases. It's the law.... We apply law to facts. We don't apply feelings to facts." Josh Gerstein, Supreme Court snoozer for Sotomayor , Politico (Aug. 6, 2009, 6:27 PM), https://www.politico.com/story/2009/08/supreme-court-snoozer-for-sotomayor-025895. Similarly, when "the language [of a statute] is unambiguous, our analysis ends because the Legislature must be understood to mean what it has expressed, and it is not for the courts to add to or subtract from such a statute." Bays , 396 S.W.3d at 585. If I chose to write into section 3.01(2) restrictions such as those in section 3.01(1) or chose to just ignore section 3.01(2) altogether, I would be legislating as a member of the judicial branch. But the judicial branch does not have the constitutional power to legislate and doing so violates the separation of powers in our constitution. Texas's separation-of-powers constitutional provision clearly prohibits trial judges and appellate justices from legislating from the bench:
The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person [including a trial judge], or collection of persons [including appellate justices], being one of these departments [such as the judiciary], shall exercise any power properly attached to either of the others [including judges legislating in court decisions], except in the instances herein expressly permitted.
TEX. CONST. art II, § 1 (emphasis and annotation regarding application to the judicial branch added); see also In re Allcat Claims Serv., L.P. , 356 S.W.3d 455, 486 n. 66 (Tex. 2011) (orig. proceeding) ("This concept has a rich history in Texas, predating even the Republic itself. In fact, there has been a Separation of Powers provision in every one of Texas's Constitutions. The wording in the current Constitution is identical to the wording used in our four previous state constitutions."). So, neither the trial court nor this Court has the power to reform or excise section 3.01(2)'s text which does not restrict the repeated offenses definition of "criminal episode" to conduct close in time, location, or part of single or related transaction(s) or conspiracy. Amending the statute is not our job as judges, so we should not do it. See TEX. CONST. art. II, § 1 ; EME Homer City , 572 U.S. at 508–09, 134 S.Ct. 1584.
No one disputes the legislature could have authorized acquittal expunction without any exceptions so a defendant who obtains acquittal automatically obtains expunction of the arrest records without regard to whether the defendant has a prior conviction for the same or similar offense. But the legislature deliberately chose to create the criminal episode exception to acquittal expunction. See TEX. CODE CRIM. PROC. art. 55.01(c). Twenty-five years have passed since the Corpus Christi-Edinburg Court observed, " Section 3.01(2) does not impose a time differential between the commission of the same or similar offenses. 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. The legislature has not seen fit to amend section 3.01(2) since Guidry was issued in 1995. But during those twenty-five years, the legislature amended article 55.01 fourteen times. And eight times the legislature amended section 3.03 of the penal code, which provides for sentences for offenses arising out of criminal episodes. And since 2011 when the El Paso Court decided Casey , which repeated the Guidry observation, article 55.01 was amended five times and section 3.03 was amended twice. There are five cases out of four courts of appeals all agreeing, " Section 3.01(2) does not impose a time differential between the commission of the same or similar offenses." See supra § IV. These twenty-five years of precedent applying the plain text of section 3.01(2) governs the decision in this case. See Prairie View A & M Univ. v. Chatha , 381 S.W.3d 500, 506–07 (Tex. 2012) (when legislature does not amend statute after twenty-seven years of precedent, precedent governs). This Court should not judicially amend the plain language of the statute to limit the application of the criminal episode exception based on this Court's view that it is unfair to apply the statute as written to this case.
Courts do not construe statutes based on their notions of fairness, as though the legislature does not consider fairness when it enacts a statute, or as though a court's notion of fairness trumps the legislature's balancing of factors including fairness when it enacts a statute. As I explained above in section IV, this statute is not unfair or absurd but embodies the legislature's decision that defendants with a prior conviction for the same or similar offense are not granted the privilege of acquittal expunction when their records of their prior conviction will not be expunged and there would be little benefit to expunging the later arrest. And if a court amends the statute as applied to this case because the court considers it unfair, presumably that court will continue to amend other expunction statutes it considers unfair. For example, article 55.01(a)(2)(A)(ii)(d) addresses when an expunction is available after indictment but absent a trial acquittal. Pursuant to the plain language of this provision, two defendants with identical felony charges, no criminal history, and never convicted of the offense, could end up with different expunction outcomes simply because of the way the charges are resolved. If one defendant without a prior conviction for the same offense goes to trial and is acquitted, he is entitled to an expunction under article 55.01(a)(1)(A). But if a prosecutor dismisses a second defendant's case after he is indicted (even if the prosecutor does so fearing a conviction is unlikely), the second defendant is precluded from obtaining expunction if the State later demonstrates at an expunction hearing the indictment was supported by probable cause. See In re V.H.B. , 583 S.W.3d 636, 642 (Tex. App.—El Paso 2018, pet. denied) ("The dismissal of an indictment due to insufficient evidence to obtain a conviction cannot be the basis of an expunction...."). Although neither indictment resulted in a conviction, in a contested expunction hearing, only the first defendant will be able to obtain an expunction but not the second defendant, if the State establishes the indictment of the second defendant was based on probable cause. It is for the legislature to consider this difference in outcomes along with all other factors and to amend the statute to create a different outcome—"the Legislature ... could ... easily do[ ] so." Guidry , 909 S.W.2d at 585.
Compare this result with that of Ex parte Ammons , where a defendant arrested for a felony but never indicted (perhaps because he was completely innocent) still had to wait three years before he could obtain expungement. 550 S.W.3d 235, 237 (Tex. App.—Texarkana 2018, no pet.). Also consider Ex parte K.R.K. , which held that a defendant arrested for both felony possession of a controlled substance and misdemeanor possession of marijuana was not entitled to expunction of the felony arrest, despite the fact that the charge was later dismissed, because he pleaded guilty to the misdemeanor possession charge. 446 S.W.3d 540, 544 (Tex. App.—San Antonio 2014, no pet.).
Finally, even if proper statutory construction involved reviewing the legislature's wisdom in enacting a statute—it does not —this Court would have to articulate what standard should be used: perhaps de novo review (we simply substitute our own judgment for the legislature's) or abuse of discretion (the legislature's wisdom would not be over-written by courts unless it is clearly erroneous)? And would this not put courts in the business of reviewing all legislation for its wisdom? We in the judicial branch have no business re-writing statutes based on our view of fairness. See TEX. CONST. art. II, § 1 ; EME Homer City , 572 U.S. at 508–09, 134 S.Ct. 1584.
VII.
The trial court—even though it sought appellate guidance and was told there was none—abused its discretion by misconstruing section 3.01(2) and misapplying it to Ferris's repeated DWI offenses. Because Ferris's 2018 DWI arrest was for the same or similar offense as his 2014 arrest and 2015 conviction for DWI, those repeated offenses were a "criminal episode" within the meaning of section 3.01(2). The acquittal expunction exception in article 55.01(c) of the code of criminal procedure and section 3.01 of the penal code applied. Ferris bore the burden to prove compliance with all the mandatory statutory requirements, and an expunction may not be granted if he failed to do so. Ex parte Enger , 512 S.W.3d at 914. Ferris failed in his burden because the repeated offenses exception in section 3.01(2) applied, so the trial court abused its discretion when it granted Ferris's expunction petition. I would sustain both of DPS's issues.
The majority reaches the opposite conclusion and affirms the trial court order granting expunction. Now, statutorily ineligible applicants for expunction will receive expunctions in six counties in North Texas that others in the remaining 248 counties will not receive. For the reasons stated above and with great respect for the learned trial judge and my colleagues in the majority,
I dissent and would reverse the trial court's expunction order and deny Ferris's petition for acquittal expunction of his 2018 DWI arrest records.