Ex Parte K.T.

Supreme Court of Texas
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No. 20-0977
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Ex parte K.T.

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On Petition for Review from the
Court of Appeals for the Second District of Texas
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~consolidated for oral argument with~

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No. 21-0075
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Ex parte C.F.

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On Petition for Review from the
Court of Appeals for the Fifth District of Texas
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Argued January 13, 2022

JUSTICE YOUNG delivered the opinion of the Court, in which Chief
Justice Hecht, Justice Lehrmann, Justice Devine, Justice Blacklock,
Justice Busby, Justice Bland, and Justice Huddle joined.

JUSTICE BOYD filed a dissenting opinion.

These two cases, which we consolidated for briefing and
argument, involve unrelated respondents—K.T. and C.F.—who were
acquitted of driving while intoxicated, or DWI. Both respondents seek
expunction of the records relating to their arrests. Texas law authorizes
such expunctions unless “the offense for which the person was acquitted
arose out of a criminal episode,” Tex. Code Crim. Proc. art. 55.01(c), and
defines “criminal episode” as “the commission of two or more offenses”
under specified circumstances. Tex. Penal Code § 3.01. Each
respondent had a previous DWI conviction from at least three years
before the arrest that led to acquittal.
The State must make two separate showings to block
respondents’ requested expunctions. 1 First, to reach the minimum
“commission of two . . . offenses” required for a criminal episode to exist,
id., the State must establish that each respondent’s second DWI arrest
qualifies as the “commission” of that offense, despite the resulting
acquittals. Second, the State must show that each respondent’s prior
conviction and later arrest were part of a common “criminal episode”—
specifically, that two arrests for DWI are necessarily part of the same
criminal episode even when the underlying events have no other relation
to each other.
We hold that an acquittal cannot qualify as the “commission” of
an offense. With only one “commission” for each respondent, there can
be no “criminal episode” for either. Without a criminal episode, the
exception to expunction does not apply. We therefore affirm the
judgments below on this ground without reaching the second issue,
which we reserve for a future case.

1The petitioner in both cases, which we call “the State,” is the Texas
Department of Public Safety.

2
I
The material facts in each case are undisputed and essentially
identical: Respondents K.T. and C.F. each has one misdemeanor DWI
conviction and, more than three years later, one subsequent
misdemeanor DWI acquittal. 2 Both respondents filed petitions in the
relevant trial court requesting expunction of the arrest records
pertaining to their acquittals. Both cases present the same question of
law relating to the availability of expunction under these circumstances.
Separate trial courts ordered expunction of each respondent’s records
despite the State’s objections. In K.T., a divided panel of the Second
Court of Appeals affirmed. 3 In C.F., the en banc Fifth Court of Appeals
affirmed over a dissent. 4

II
As we have repeatedly recognized, there is no constitutional right
to expunction. Ex parte R.P.G.P., 623 S.W.3d 313, 316 (Tex. 2021); In re
State Bar of Tex., 440 S.W.3d 621, 624 (Tex. 2014) (orig. proceeding).
The cases before us therefore present only a question of statutory
construction. The interaction of three provisions from two Texas
statutes determines whether those in respondents’ position may
expunge records relating to charges for which they have been acquitted.
First, the Code of Criminal Procedure provides a general
entitlement to the expunction of arrest records when someone is later

2At oral argument, counsel for C.F. moved to recaption the case to use
only C.F.’s initials. We now grant that motion, which we carried with the case.
3 612 S.W.3d 111 (Tex. App.—Fort Worth 2020).
4 613 S.W.3d 276 (Tex. App.—Dallas 2020).

3
acquitted:
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) (internal punctuation omitted).
Next, the exception to this general entitlement appears in article
55.01(c), which provides that
[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.
Finally, courts cannot apply the exception without confirming
that, under the Penal Code’s definition, a “criminal episode” has been
formed in the first place:
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.
When the State invokes the statutory exception to block access to

4
expunction for someone who has been acquitted of an offense, these
statutory provisions require the State first to establish that a “criminal
episode” has in fact been formed. If so, the State must show that the
acquittal at issue “arose out of ” that “criminal episode.”

III
We begin with whether a “criminal episode” has been formed in
the first place. It is undisputed that a “criminal episode” cannot exist
without at least two qualifying “offenses.” It is likewise undisputed that
the only potential offenses that could qualify here are each respondent’s
(1) single prior DWI conviction and (2) single DWI arrest that led to
acquittal. The question before us is whether, as a matter of law, a single
conviction and a single acquittal are legally sufficient to establish a
“criminal episode” under Penal Code § 3.01.

A
1
The State contends that one conviction and one acquittal are
sufficient. Most of the State’s arguments, however, attack respondents’
contention that a criminal episode requires two convictions. As we
describe in greater detail below, we agree with the State that a final
conviction is not necessary to treat charged conduct as an “offense” when
determining whether the article 55.01(c) exception to expunction—
which incorporates § 3.01’s definition of criminal episode—applies.
Article 55.01(c)’s reference to “the offense for which the person was
acquitted” would be incoherent if “offense” meant “conviction,” for one
cannot be convicted of an offense if one has been acquitted of that
offense.

5
But rejecting respondents’ constrained reading of “offense” to
mean only convictions does not equate to embracing the State’s
expansive reading that “offense” encompasses both acquittals and
convictions. Article 55.01(c) does not separately define the term
“criminal episode” but instead expressly incorporates the definition
provided in Penal Code § 3.01. Section 3.01, in turn, requires the
“commission of two or more offenses” to establish a “criminal episode.”
(Emphasis added.)
The Penal Code does not define the term “commission,” so the
ordinary meaning of that term governs our analysis. “Commission” is
the “[a]ct of committing, doing, or performing; act of perpetrating . . . .”
Commission, Webster’s International Dictionary (2d ed. 1953). Common
sense and ordinary English usage both rebel at allowing the State to
treat someone as the committer, doer, performer, or perpetrator of a
crime after a jury’s verdict of acquittal. 5 With respect to their later
arrests, the State did not meet its burden to show that K.T. and C.F.
committed, did, performed, or perpetrated the offense of driving while
intoxicated beyond a reasonable doubt. The right to trial by jury, and
the sanctity of the resulting verdicts, are fundamental to our legal
system. Absent clear language to the contrary, we cannot agree that the
legislature would define “criminal episode” as the “commission” of
multiple offenses if it wanted to include offenses where a jury has
acquitted the defendant. Tex. Penal Code § 3.01.
The State’s approach would do more than subvert ordinary

5 K.T. was acquitted in a jury trial. C.F. had the right to a trial by jury,
but instead accepted a bench trial, at which he was acquitted.

6
language like “commit” or “commission.” It would lead to results that
would startle not just legislators but ordinary Texans. The State has
candidly acknowledged, for example, that its reading would require
Texas courts to deem an unquestionably erroneous arrest—even one
based on admittedly mistaken identity—as establishing the
“commission” of an “offense” by the wrongly arrested citizen. Indeed, a
false arrest springing from malice would constitute the “commission” of
an offense by the victim of the false arrest, even if the government
immediately corrects the error and punishes the officials who caused
that arrest.
The legislature’s use of “commission” forecloses such a scenario.
That term’s plain meaning focuses on the actions of the alleged
perpetrator, not the actions of third parties like the law-enforcement
officer doing the arresting. When the State fails to show that the
arrestees committed particular conduct, such now-rejected allegations
may not be treated as conduct that the arrestees did commit.
Article 55.01(a)(1)(A) also uses “commission” in a way that
supports our reading. That provision authorizes expunction for someone
“who has been placed under . . . arrest for commission of [a crime]” and
who then is acquitted. (Emphasis added.) Being “arrest[ed] for
commission” of a crime sets out the reason that someone needs
expunction—he was arrested but then was acquitted. The initial
accusation is why he was arrested. Penal Code § 3.01, however, is
tethered to the commission of a crime (which is defeated upon acquittal),
not merely an “arrest for commission” of a crime.
Article 55.01 is thus premised on acquittals not being called

7
“committed” offenses. As we discuss below, article 55.01(c)—the
exception to expunction—accordingly does not even use the word
“commission,” but describes only “an offense for which a person is
subsequently acquitted.” The absence of “commission” is significant,
and confirms our reading, because the whole point of article 55.01(c) is
to bar expunction of records related to “offenses” that, because they led
to acquittal, were not shown to have been committed.

2
The State claims that we must embrace its unlikely
interpretation of “commission” under § 3.01 because article 55.01(c)
otherwise becomes a “nullity.” Specifically, the State argues that “for
article 55.01(c) to apply, the offense for which the defendant is acquitted
must have been ‘committed’—otherwise, it could not arise from a
criminal episode as defined by section 3.01” since an offense that is not
committed cannot “arise” from a criminal episode. We cannot embrace
this reading because it misapprehends how § 3.01 and article 55.01
interact.
First, § 3.01 has but one role in expunction cases: to delineate
whether a “criminal episode” exists. That question turns in part on
identifying “the commission” of multiple offenses. But once a criminal
episode has been formed, it does not matter whether an offense was
“committed.” Said differently, the State can block an expunction of an
acquittal (which, as we discuss below, indeed can “arise from” an
already-identified criminal episode). Doing so is the whole point of
article 55.01(c). Once § 3.01 is satisfied, in other words, article 55.01(c)
takes over—and article 55.01(c) does not address whether an offense

8
was “committed.”
Both text and context illustrate this relationship between the two
provisions. Article 55.01(c) expressly conditions its use of “criminal
episode” on how the Penal Code uses that term: unless the State can
show “a criminal episode, as defined by Section 3.01, Penal Code,” the
exception to expunction is impermissible. (Emphasis added.) The
relevant language in § 3.01 was enacted in 1973. 6 Article 55.01(c),
which was enacted in 1999, 7 does not modify § 3.01’s language, but
borrows it. Article 55.01(c) directs courts to import § 3.01’s meaning into
the expunction context—not to export expunction-specific meaning into
§ 3.01. The way to read these statutes together is to follow the
legislative command to take § 3.01 as we find it.
Our analysis could end merely with the legislature’s express
command that courts not impose a bespoke reading on § 3.01 based on
expunction-related concerns. But the legislature also had a very good
reason for that command: to avoid interference with the substantive
criminal law. After all, while article 55.01(c) exclusively concerns
expunction, § 3.01 is an important criminal-law statute that contains
the sole definition in Chapter 3 of the Penal Code, which is titled
“Multiple Prosecutions.” The tail would wag the dog if article 55.01(c)
could transform the meaning of § 3.01. Caution is called for: “‘[A]n
expunction proceeding is civil in nature,’ yet it is in the criminal law

6See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen.
Laws 883, 891 (codified at Tex. Penal Code § 3.01).
7Act of June 18, 1999, 76th Leg., R.S., ch. 1236, § 1, 1999 Tex. Gen.
Laws 4279, 4280 (codified at Tex. Code Crim. Proc. art. 55.01).

9
where the consequences of our decision will be keenly felt.” Ex parte
R.P.G.P., 623 S.W.3d 313, 334 (Tex. 2021) (Bland, J., dissenting)
(alteration in original) (quoting State v. T.S.N., 547 S.W.3d 617, 619
(Tex. 2018)).
Hence, it is not surprising that the legislature itself emphasized
that, however § 3.01 defines “criminal episode,” article 55.01(c) must use
that definition. That definition could change, of course, for reasons
wholly unrelated to expunction. The legislature or the courts could
modify § 3.01’s meaning or scope with criminal prosecutions and not
expunction in mind. If that happens, article 55.01(c) includes a
backstop. Beyond requiring the State to show a “criminal episode” as
defined in § 3.01, article 55.01(c) has an independent requirement of its
own: that “the person was convicted of or remains subject to prosecution
for at least one other offense occurring during the criminal episode.”
This belt-and-suspenders approach—relying on § 3.01 but
providing a backstop—does not make anything a nullity or create any
surplusage. To the contrary, article 55.01(c)’s language ensures that at
least one conviction or unresolved charge is required to bar expunction
of records relating to an acquittal no matter what happens vis-à-vis the
details of § 3.01. Article 55.01(c)’s requirement is less restrictive than
§ 3.01’s current definition, but it still is an independent statutory
condition ready to take effect if necessary. Allowing for such a
contingency is comparable to retaining a state constitutional provision
even though the U.S. Supreme Court has given an analogous federal

10
constitutional provision a more expansive scope. 8
Our holding today addresses only the very first step of the
analysis relating to the exception to expunction—the creation of the
criminal episode under Penal Code § 3.01. Specifically, we hold that an
acquittal cannot be leveraged into forming a criminal episode because
an acquittal does not qualify as the “commission” of an “offense.” Once
the State properly identifies a criminal episode, however, § 3.01 does not
play any further role in the expunction analysis.
Finally, the State is also mistaken to contend that offenses
leading to acquittal cannot “arise from” a criminal episode under the
ordinary definition of “commission.” Acquitted offenses can still “arise
from” the two categories of criminal episodes that § 3.01 describes.
Imagine a defendant charged with robbing three banks during a spree,
who is convicted of two but acquitted of the third. Or consider a
defendant charged with robbing a house, kidnapping an occupant of the
house, and arson of the house; he might likewise be convicted of the first
two but acquitted of the third. In both scenarios, the third offense was
not “committed.” But that third offense nonetheless cannot be expunged
under article 55.01(c) because that acquitted offense “arose from” the
same criminal episode. Our recourse to the ordinary English meaning
of the statutory text may allow more expunctions than the State prefers,
but that hardly renders article 55.01(c) or any other provision a “nullity.”

8State constitutional provisions still independently protect the right at
issue even if federal law provides more protection. And if the Supreme Court’s
interpretation of the federal Constitution changes, the state Constitution,
which may have appeared dormant, will quickly prove that it was not as
superfluous as it may have seemed.

11
For all of these reasons, we must also respectfully disagree with
our dissenting colleague. We perceive no surplusage or meaninglessness
in article 55.01(c). But even if we were less sure, the proposed cure is
worse than the disease. “Put to a choice . . . , a court may well prefer
ordinary meaning to an unusual meaning that will avoid surplusage.”
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 176 (2012). Reading “commission” of an offense to mean
“acquittal” of that offense would, to put it mildly, be “unusual.” “[W]ith
careful regard to context,” which we have sketched above, we believe
that sounder “judgment and discretion” compel us to read the statutes
as we do. Id. 9
* * *

To block the expunction of respondents’ arrest records, the State
must show the “commission” of at least two offenses to establish a
criminal episode. We hold that the State cannot count as a “commission”
any “offense” for which respondents have been acquitted. Without the
acquitted charges, the State has only one offense for each respondent,
which is legally insufficient to form a “criminal episode.” As a matter of

9 We take no position on the underlying policy debate about how
generous the expunction entitlement should be. The legislature certainly could
conclude that once a person is convicted of an offense, the right to expunction
must yield to the public’s interest in access to subsequent arrest records—even
for arrests that lead to acquittal, are wholly unrelated to the initial conviction,
or even turn out to be wholly unfounded. The only question fit for the judiciary
is to discern the policy that the legislature has enacted. We reiterate that the
legislature may freely amend the statute. It can narrow (or broaden) its scope
by amending the law—or by replacing it with a wholly new expunction statute.

12
law, therefore, the statutory exception does not apply. 10 K.T. and C.F.
are thus both entitled to the expunctions that they have sought.

B
Respondents agree that an acquittal is insufficient to form a
criminal episode but would take the additional step of equating an
offense’s “commission” with an offense’s conviction. We cannot go so far.
It certainly is true that one convicted of a crime has “committed” that
crime. But the statute is structured around a middle ground between
acquittal and conviction. “Commission,” as the statute uses that term,
also encompasses offenses for which a person still can be prosecuted—
that is to say, where a conviction remains possible. Penal Code § 3.02(a),
which concerns joinder of prosecutions, reflects this point. That
provision states that a “defendant may be prosecuted in a single criminal
action for all offenses arising out of the same criminal episode.”
The statutory structure precludes respondents’ reading. After
defining “criminal episode” in § 3.01, the Penal Code immediately begins

10 To the extent that lower-court decisions that deny expunctions have
relied on an acquittal to form the criminal episode, those decisions are
disapproved. See, e.g., In re J.D.R., No. 01-20-00161-CV, 2022 WL 551276, at
*1 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet.); Ex parte M.B.F., No.
10-20-00053-CV, 2022 WL 555019, at *1 (Tex. App.—Waco Feb. 23, 2022, no
pet.); Mitchell v. State, No. 09-20-00060-CV, 2020 WL 6494209, at *1 (Tex.
App.—Beaumont Nov. 5, 2020, pet. denied); Ex parte R.A.L., No. 04-19-00479-
CV, 2020 WL 557542, at *1 (Tex. App.—San Antonio Feb. 5, 2020, pet. denied);
Ex parte F.T.K., No. 13-16-00535-CV, 2018 WL 2440545, at *1 (Tex. App.—
Corpus Christi–Edinburg May 31, 2018, no pet.); In re Expunction of J.B., 564
S.W.3d 436 (Tex. App.—El Paso 2016, no pet.); Addicks v. State, No. 03-06-
00114-CV, 2007 WL 844872, at *1 (Tex. App.—Austin Mar. 21, 2007, no pet.);
Ex parte Baldivia, No. 07-05-0046-CV, 2007 WL 63373, at *1 (Tex. App.—
Amarillo Jan. 10, 2007, no pet.).

13
to apply that term in § 3.02 in a way that eliminates the conviction-only
definition that respondents advance. As § 3.02 illustrates, offenses in
as early as the prosecution stage can form a single criminal episode, so
a “criminal episode” for that purpose must be able to exist before any
convictions are even possible. 11
Offenses still subject to prosecution have not reached a particular
conclusion—conviction, acquittal, or anything else. Thus, while an
acquittal cannot qualify as a predicate for a “criminal episode,” charged
conduct that has not yet led to acquittal can form part of a “criminal
episode” and thus trigger Penal Code § 3.02’s authorization of “a single
criminal action” for multiple charged offenses. These offenses are within
the definition of a “criminal episode” for joint prosecution until, as a
matter of law, that possibility has been negated. 12
Respondents’ reading would require expunction where the statute
forbids it. For example, if only convictions can form a criminal episode,
someone could expunge an acquitted offense even though two other
offenses from the same incident or course of conduct remain subject to
prosecution. If those prosecutions resulted in convictions, and if they
formed a criminal episode, the acquittal could squarely fall within
article 55.01(c)’s exception to expunction (even though the State could

11Article 55.01(c) of the Code of Criminal Procedure confirms this
reading by stating that an acquitted offense cannot be expunged if “the person
was convicted of or remains subject to prosecution for at least one other offense
occurring during the criminal episode.” (Emphasis added.) See supra at 10–
11.
This potential is what keeps Penal Code § 3.01 tethered to the actual
12

“commission” of a crime.

14
not use that acquittal to establish the criminal episode’s formation).
When there is a potential conviction, in other words, the lack of a
conviction poses no barrier to that charge arising from a criminal
episode. 13

IV
Much of the State’s argument in the cases before us has focused
on the second question, on which the State must also prevail to warrant
denial of expunction. That question asks whether two DWI offenses,
separated by over three years, are sufficiently linked to form a common
“criminal episode” under Penal Code § 3.01(2). 14 That provision defines
“criminal episode” as “the commission of two or more offenses” when “the
offenses are the repeated commission of the same or similar offenses.” 15
We decline to resolve this question. We acknowledge that this
issue could provide an independent basis for our holding because, even
if we had held that the DWI acquittal could qualify as the “commission”
of an offense, a “criminal episode” would still not exist if the original
conviction and the subsequent acquittal were insufficiently linked to

13 We need not address today whether a charged offense leading to a
disposition other than a conviction or an acquittal, such as deferred
adjudication, can be a part of a criminal episode under § 3.01.
The parties agree that, if a criminal episode exists here, it is under
14

Penal Code § 3.01(2).
15 As originally enacted in 1973, § 3.01 included only what now is
codified as § 3.01(2)—“the repeated commission” of an offense. The provision
currently codified as § 3.01(1)—involving offenses in “the same transaction” or
“constitut[ing] a common scheme or plan”—was added in 1987. See Act of May
24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 891 (codified at
Tex. Penal Code § 3.01); Act of May 22, 1987, 70th Leg., R.S., ch. 386, § 1, 1987
Tex. Gen. Laws 1900 (codified at Tex. Penal Code § 3.01).

15
qualify as “the repeated commission” of DWI. We also recognize that
the Fifth Court, sitting en banc in C.F., relied on this ground, 16 which
remains the law in that appellate district, while other courts of appeals
have rejected that reading. 17
We nonetheless conclude that it is more prudent to await another
case that presents the issue than to address the existing conflict now.
The outcome of today’s disputes would not change regardless of how we
resolved this second question. Moreover, respondents’ rationale for
affirmance did not contest the State’s reading of § 3.01(2) or defend the
Fifth Court’s ruling in C.F.’s favor on this ground. The State
understandably did not press as far as it might have in defending its
own position; it was deprived of adversarial briefing that challenged
whether § 3.01(2) includes any limitation other than that the committed
offenses be similar. Finally, the question is important and will affect
many other Texans, so we are wary of addressing it under these
circumstances. We therefore will await another case in which this

16613 S.W.3d at 282–84 (advancing multiple reasons that a “criminal
episode” under § 3.01(2) cannot be formed from events that share no links other
than being the same charge); cf. id. at 289–90 (Evans, J., dissenting) (disputing
the majority’s argument on this point).
17 When considering the entitlement to expunction, several courts have
concluded that offenses require no temporal or factual nexus to form or arise
from a common “criminal episode” under § 3.01(2). See, e.g., State v. D.D.M.,
No. 14-20-00426-CV, 2022 WL 906002, at *4 (Tex. App.—Houston [14th Dist.]
Mar. 29, 2022, no pet. h.); In re J.D.R., No. 01-20-00161-CV, 2022 WL 551276,
at *4 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet.); Ex parte M.B.F.,
No. 10-20-00053-CV, 2022 WL 555019, at *2 (Tex. App.—Waco Feb. 23, 2022,
no pet.); In re T.D.N., 620 S.W.3d 433, 439 (Tex. App.—El Paso 2020, no pet.);
Ex parte R.A.L., No. 04-19-00479-CV, 2020 WL 557542, at *2 (Tex. App.—San
Antonio Feb. 5, 2020, pet. denied).

16
question proves dispositive and is the focus of the parties’ briefing.
We emphasize, however, that we take no position and give no hint
regarding the merits of the issue that we decline to address today.
Substantial arguments support both positions—the one advanced by the
State and the one advanced by the en banc majority in the Fifth Court.
We will consider them if and when a case implicating those arguments
comes to us. 18

V
Respondents have established their entitlement to expunction.
No exception applies. The judgments below are accordingly affirmed.

Evan A. Young
Justice

OPINION DELIVERED: May 13, 2022

18 The dissent’s brief discussion of this issue, of course, does not predict
how the Court will ultimately rule. We agree with the dissent on one notable
point, however—the relevance of the Court of Criminal Appeals’ cases. See
post at 7–8 (quoting Wilson v. State, 448 S.W.3d 418, 424 (Tex. Crim. App.
2014)). Wilson addressed Penal Code § 42.07(a)(4), not § 3.01; we express no
view as to whether that context is portable or instructive. But we agree that
courts and parties should pay close attention to the Court of Criminal Appeals’
case law in this context because—as noted above—what constitutes a “criminal
episode” is primarily relevant in criminal cases.

17