Fourth Court of Appeals
San Antonio, Texas
OPINION
Nos. 04-18-00772-CV & 04-18-00773-CV
EX PARTE J.A.B., Jr.
From the 216th Judicial District Court, Kerr County, Texas
Trial Court Nos. 18-833-A & 18-834-A
Honorable N. Keith Williams, Judge Presiding
Opinion by: Beth Watkins, Justice
Concurring Opinion by: Rebeca C. Martinez, Justice, joined by Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: October 23, 2019
REVERSED AND RENDERED
The Texas Department of Public Safety appeals the trial court’s orders granting the
petitions for expunction filed in the underlying causes by J.A.B., Jr. The Department contends the
trial court erred in granting the expunctions because: (1) the offenses for which J.A.B. was
acquitted arose out of the same criminal episode as an offense for which he was convicted; and (2)
the evidence is insufficient to support the expunctions. We reverse the trial court’s orders and
render judgment denying the petitions.
BACKGROUND
J.A.B. filed petitions to expunge all criminal records and files pertaining to his 2016 arrest
for two offenses of assault of a public servant. The Department filed an original answer and
general denial asserting J.A.B. was not entitled to expunge the records of this arrest because he
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was convicted of the same or similar offenses which arose out of a criminal episode for which
expunction is not available. 1 Specifically, the Department alleged J.A.B. was previously convicted
of the following same or similar offenses:
• one count of assault of a public servant in 2010;
• two counts of harassment of a public servant in 2010; and
• one count of aggravated assault with a deadly weapon in 2015.
The Department did not attend the hearing on J.A.B.’s petitions. J.A.B. testified the 2016
charges were filed while he was in jail in Kerr County, and he was alleged to have assaulted two
officers who were trying to restrain him after they found contraband. He testified he was acquitted
by a jury of the 2016 charges.
With regard to the 2015 aggravated assault with a deadly weapon charge, J.A.B. explained
that offense occurred after he was released from the juvenile correctional facility. He was placed
on deferred adjudication for the offense, but was later adjudicated and sentenced to seven years’
imprisonment. J.A.B. testified the victim in that offense was not a correctional officer, and he was
not confined when the offense occurred. J.A.B. also stated the 2015 offense was “the offense
dealing with the concert.”
Finally, J.A.B. explained that the 2010 charges of harassment of a public servant involved
him spitting on a correctional officer while in a juvenile correctional facility. He also explained
the 2010 charge of assault of a public servant occurred when he was “playing tug of war” with a
correctional officer and her walkie-talkie. When he yanked the walkie-talkie from her hand, he hit
another officer he did not see standing next to him.
1
Throughout this litigation, the Department has referred to J.A.B.’s arrest as having occurred on January 23, 2017.
The trial court found that arrest occurred on November 28, 2016.
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At the conclusion of the hearing, the trial court granted the petitions reasoning the 2015
offense was not the “same or similar” because it did not involve an assault on a law enforcement
officer. The trial court also reasoned the 2010 offenses occurred when J.A.B. was a juvenile. The
trial court’s written orders state J.A.B. was entitled to the expunctions under article 55.01(a)(1)(A)
of the Texas Code of Criminal Procedure.
STANDARD OF REVIEW
A trial court’s ruling on a petition for expunction is generally reviewed for abuse of
discretion, but a trial court has no discretion in deciding what the law is or in applying it to the
facts. State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018). Therefore, when a trial court’s expunction
ruling turns on a question of law like statutory construction, it is subject to de novo review. Id.
Here, the trial court’s expunction ruling involves the interpretation and application of article
55.01(c) of the expunction statute; therefore, we review the trial court’s ruling de novo. See id.;
In re Expunction of J.B., 564 S.W.3d 436, 439 (Tex. App.—El Paso 2016, no pet.).
DISCUSSION
The purpose of an expunction statute is 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).
“Expunction is not a right; it is a statutory privilege.” In re State Bar of Tex., 440 S.W.3d 621,
624 (Tex. 2014). If an applicant who has been arrested for the commission of an offense meets all
the requirements of the expunction statute, then all information about the arrest is removed from
the State’s records. See In re J.B., 564 S.W.3d at 439. The petitioner bears the burden of
establishing that all of the statutory conditions or requirements are met. See T.S.N., 547 S.W.3d
at 620; In re J.B., 564 S.W.3d at 439.
Texas’s expunction statute is codified in article 55.01(a)(1)(A) of the Texas Code of
Criminal Procedure, which permits a person to have all records and files relating to his arrest
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expunged if the person is tried and acquitted of the offense. TEX. CODE CRIM. PROC. ANN. art.
55.01(a)(1)(A). That statute contains an exception which prohibits a trial court from ordering an
expunction of records—even if the person was acquitted—if the offense arose out of a “criminal
episode” and the person was convicted of at least one other offense occurring during the criminal
episode. Id. art. 55.01(c). Article 55.01(c) incorporates the definition of criminal episode from
Texas Penal Code section 3.01. Ex parte Rios, No. 04-19-00149-CV, 2019 WL 4280082, at *2
(Tex. App.—San Antonio Sept. 11, 2019, no pet. h.). For that reason, we must construe both
article 55.01(c) of the Texas Code of Criminal Procedure and section 3.01 of the Texas Penal Code
in determining whether the trial court properly granted the expunctions. See id.
“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.” T.S.N., 547 S.W.3d at 620 (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 also “operate under the presumption that the legislature
chooses a statute’s language with care, deciding to omit or include words purposefully.” In re
J.B., 564 S.W.3d at 440.
As this court recently recognized in Ex parte Rios, “[s]ection 3.01 of the Texas Penal Code
defines ‘criminal episode’ as ‘the commission of two or more offenses, regardless of whether the
harm is directed toward or inflicted upon more than one person or item of property, 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.’”
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Ex parte Rios, 2019 WL 4280082, at *2 (quoting TEX. PENAL CODE ANN. § 3.01). In this case, the
Department focuses on the portion of the definition that defines criminal episode as two or more
offenses which are “the repeated commission of the same or similar offenses.” Id. Section 3.01(2)
does not impose a particular time frame within which the same or similar offenses must be
repeated. See Ex parte Rios, 2019 WL 4280082, at *2; In re J.B., 564 S.W.3d at 441; Waddell v.
State, 456 S.W.3d 366, 369 (Tex. App.—Corpus Christi 2015, no pet.); Baker v. State, 107 S.W.3d
671, 673 (Tex. App.—San Antonio 2003, no pet.) (citing Guidry v. State, 909 S.W.2d 584, 585
(Tex. App.—Corpus Christi 1995, pet. ref’d) (section 3.01(2) does not impose time differential
between commission of 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. In addition, section 3.01(2) does not require that the offenses be
committed in the same or similar fashion—only that the offenses are the repeated commission of
the same or similar offense. Ex parte Rios, 2019 WL 4280082, at *2; Waddell, 456 S.W.3d at 370;
see also Baker, 107 S.W.3d at 673 (noting repeated commission of same or similar offenses under
section 3.01 is distinct from continuing course of offenses involving similar facts); see generally
Duncan v. State, No. 08-12-00328-CR, 2013 WL 5716179, at *2 (Tex. App.—El Paso Oct. 18,
2013, no pet.) (not designated for publication) (“To be characterized as a single criminal episode,
multiple offenses occurring on different dates, in different places, and against several complainants
must either: (1) be the same or similar; (2) share a common scheme or plan; or (3) have been
repeated in a similar fashion.”).
The 2016 offenses for assault of a public servant constitute “the repeated commission of
the same . . . offense” as the 2010 offense for assault of a public servant. TEX. PENAL CODE
§ 3.01(2). The Legislature has declared that arrest records from the repeated commission of the
same offense are not available for expunction, even when arrests lead to acquittals. TEX. CODE
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CRIM. PROC. art. 55.01(c). For that reason, J.A.B.’s arrest record for the 2016 offenses are not
available for expunction.
CONCLUSION
The trial court’s orders are reversed, and judgment is rendered denying the petitions for
expunction.
Beth Watkins, Justice
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