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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JUSTICE BOYD, dissenting.

In each of these two otherwise unrelated cases, the respondents
were arrested and convicted of driving while intoxicated and then, more
than three years later, were again arrested for driving while intoxicated
but were tried and acquitted. The Court holds that article 55.01(a)(1)(A)
of the Texas Code of Criminal Procedure entitles the respondents to
have the records of their second DWI arrest expunged, and that article
55.01(c)’s exception to expungement does not apply. Because the Court’s
construction renders half of article 55.01(c) meaningless, I disagree and
respectfully dissent.
Article 55.01(a)(1)(A) entitles a person who is arrested “for the
commission of” a criminal offense to have the arrest records expunged if
the person is tried and acquitted. TEX. CODE CRIM. PROC. art.
55.01(a)(1)(A).1 Under the exception in article 55.01(c), however,
expunction is not available if:
(1) the offense for which the person was
acquitted arose out of a criminal episode,
as defined by Section 3.01, Penal Code,
and
(2) the person was convicted of or remains
subject to prosecution for at least one other
offense occurring during the criminal
episode.
Id. art. 55.01(c).
Section 3.01 of the Penal Code defines “criminal episode” to
include “the commission of two or more offenses” if “the offenses are the
repeated commission of the same or similar offenses.” T EX. PENAL CODE
§ 3.01(2).2 Substituting section 3.01(2)’s definition for the phrase

1 Article 55.01 also permits expunction if the person is convicted but
pardoned or—under certain circumstances—the person is released and the
charge is dismissed. TEX. CODE CRIM. PROC. art. 55.01(a)(1)(B), (a)(2).
2 A “criminal episode” also includes the “commission of two or more
offenses” if “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).

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“criminal episode” in article 55.01(c)’s exception, a person who is
arrested for the commission of a crime but acquitted cannot have the
arrest records expunged if:
(1) the offense for which the person was
acquitted arose out of [the repeated
commission of two or more same or similar
offenses], and
(2) the person was convicted of or remains
subject to prosecution for at least one other
offense occurring during [the repeated
commission of two or more same or similar
offenses].
TEX. CODE CRIM. PROC. art. 55.01(c); TEX. PENAL CODE § 3.01(2).
Focusing on the exception’s first requirement, the Court construes
the term “commission” to mean that the person was convicted of or
remains subject to prosecution for the offense. Ante at ___. Incorporating
the Court’s construction into article 55.01(c)’s exception, the exception’s
first requirement is satisfied only if:
the offense for which the person was acquitted
arose out of the repeated “commission” of two
or more same or similar offenses for which the
person was convicted or remains subject to
prosecution.
In other words, according to the Court, a criminal episode exists,
article 55.01(c)’s exception applies, and expunction is unavailable only
if the person was accused of committing at least three separate same or
similar offenses, the person was acquitted on one, and the person was
convicted or remains subject to prosecution for the other two. Ante at
___. Here, because the respondents were convicted of or remain subject
to prosecution for only one DWI offense, the Court holds that a criminal

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episode never existed and the exception’s first requirement is not
satisfied. Ante at ___.
But the Court’s construction of the exception’s first requirement
renders the exception’s second requirement nonsensical and
meaningless. As explained, the exception’s second requirement,
incorporating section 3.01(2)’s definition of “criminal episode,” requires
that:
the person was convicted of or remains subject
to prosecution for at least one other offense
occurring during [the repeated commission of
two or more same or similar offenses].
TEX. CODE CRIM. PROC. art. 55.01(c) (emphasis added); TEX. PENAL CODE
§ 3.01(2). Under the Court’s construction of the term “commission,” the
exception’s second requirement requires that:
the person was convicted of or remains subject
to prosecution for at least one other offense
occurring during the repeated commission of
two or more same or similar offenses for which
the person was convicted or remains subject to
prosecution.
Of course, if the person was convicted of or remains subject to
prosecution for “two or more” same or similar offenses (and thus a
criminal episode exists under the Court’s construction of the exception’s
first requirement), then it will always be the case that (as the second
requirement requires) the person was convicted of or remains subject to
prosecution for “at least one” other offense that occurred during the
commission of two same or similar offenses. The Court’s construction
renders article 55.01(c)’s second requirement meaningless. See In re
CenterPoint Energy Hous. Elec., LLC, 629 S.W.3d 149, 159 (Tex. 2021)

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(stating courts “must give effect to all words of a statute and not treat
any language as surplusage”).
For this reason, almost every court of appeals that has addressed
the issue has rejected the Court’s construction of the term “commission”
and held instead that a criminal episode exists when a person is
acquitted for the same or similar offense for which the person was on at
least one occasion previously convicted. See In re J.D.R., No. 01-20-
00161-CV, 2022 WL 551276, at *5 (Tex. App.—Houston [1st Dist.] Feb.
24, 2022, no pet.) (holding article 55.01(c)’s exception applied to
defendant’s 2014 acquittal for sexual assault of a child because he
remained subject to prosecution for one earlier offense of indecency with
a child by contact); Ex parte M.B.F., No. 10-20-00053-CV, 2022 WL
555019, at *3 (Tex. App.—Waco Feb. 23, 2022, no pet.) (holding
exception applied to defendant’s 2007 acquittal for DWI because
defendant was once convicted of DWI in 2000); In re T.D.N., 620 S.W.3d
433, 442–43 (Tex. App.—El Paso 2020, pet. denied) (holding exception
applied to offense for which defendant was acquitted because defendant
was previously convicted of one same or similar offense); In re M.T.R.,
606 S.W.3d 288, 293–94 (Tex. App.—Houston [1st Dist.] 2020, no pet.)
(holding exception applied to defendant’s 2015 DWI acquittal because
defendant was once convicted of boating while intoxicated in 2012); Ex
parte R.A.L., No. 04-19-00479-CV, 2020 WL 557542, at *2 (Tex. App.—
San Antonio 2020, pet. denied) (same, involving two DWI offenses); Ex
parte J.A.B., 592 S.W.3d 165, 169 (Tex. App.—San Antonio 2019, no
pet.) (holding exception applied to defendant’s 2016 acquittal for assault
of a public servant because defendant was convicted of the same offense

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in 2010); Ex parte Rios, No. 04-19-00149-CV, 2019 WL 4280082, at *3
(Tex. App.—San Antonio 2019, no pet.) (same, involving two DWI
offenses); In re Expunction of J.B., 564 S.W.3d 436, 441 (Tex. App.—El
Paso 2016, no pet.) (holding exception applied to defendant’s acquittal
for aggravated assault because defendant remained subject to
prosecution for one retaliation offense).
As the El Paso court explained in T.D.N., because article 55.01(c)
requires only that the person was convicted of or remains subject to
prosecution for at least one other offense, “the very provision” of article
55.01(c) “that adopts the definition of a ‘criminal episode’ also allows for
a single conviction, or even the possibility of conviction, to block an
expunction.” 620 S.W.3d at 443. So to construe the exception to require
that the defendant be convicted of or still subject to prosecution for “two
or more” same or similar offenses, “we would have to ignore” the
language in the exception’s second requirement. Id.
To be fair, the Court does not completely “ignore” the exception’s
second requirement of “at least one” conviction. Instead, it suggests that
perhaps the legislature included the requirement as a “backstop” to
implement a “belt-and-suspenders” approach to ensure that “at least
one” conviction will be required in case someday the legislature amends
section 3.01(2)’s definition of “criminal episode” or a court construes that
definition differently than the Court construes it today. Ante at ___. I
find that view of the legislative process implausible at best. And in any
event, at least unless and until the legislature amends section 3.01(2),
the construction of article 55.01(c) the Court adopts today renders the
exception’s second requirement presently nonsensical and meaningless.

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I would instead construe the statutes’ language together and
conclude that an arrest “for the commission” of an offense, as article
55.01(a)(1)(A) uses that phrase, refers to the “commission” of one of “two
or more” same or similar offenses that constitute a “criminal episode”
under section 3.01(2). Under article 55.01(c)’s exception, a person who is
acquitted of the “commission” of the offense may not have the arrest
records expunged if the person was convicted of or remains subject to
prosecution for “at least one other offense occurring during [the repeated
commission of two or more same or similar offenses].” TEX. CODE CRIM.
PROC. art. 55.01(c); TEX. PENAL CODE § 3.01(2).
Finally, the Court declines to resolve the issue of whether two
arrests for the same or similar offenses may be so far apart in time that
they cannot be considered part of a single criminal episode. Ante at ___.
I would reach the issue and reject this temporal limitation based on the
statutes’ plain language. Section 3.01 defines “criminal episode” as “the
commission of two or more offenses” if (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. Here, the respondents were arrested
for the commission of two “same or similar” offenses, so they need not
have been committed “pursuant to the same transaction” or as part of “a
common scheme or plan.” And section 3.01(2) does not impose any
temporal, geographical, or other limitations, besides the requirement
that they be the “same or similar” offenses. See T.D.N., 620 S.W.3d at
439 (“[T]he legislature has imposed no requirement in Section 3.01(2)

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that the two ‘repeated’ offenses must involve the same victim, be close
in temporal or geographic proximity, or were committed in the same or
similar fashion.”); see also Wilson v. State, 448 S.W.3d 418, 424 (Tex.
Crim. App. 2014) (“The communications’ periodic frequency or the
temporal relationship of each communication are characteristics that
may further describe the communications’ nature, but we do not find
those characteristics necessary to the definition of repeated.”).
I would therefore reverse the court of appeals’ judgments
affirming the respondents’ expunctions in these cases. Because the
Court does not, I respectfully dissent.

Jeffrey S. Boyd
Justice

OPINION DELIVERED: May 13, 2022

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