Ex parte K.T.

645 S.W.3d 198

EX PARTE K.T.

Ex parte C.F.

No. 20-0977

No. 21-0075

Supreme Court of Texas.

Argued January 13, 2022

OPINION DELIVERED: May 13, 2022

Kyle Highful, W. Kenneth Paxton Jr., Attorney General of Texas, Judd E. Stone II, Office of the Attorney General, Austin, Amanda B. Morrison, Brent Webster, Jeanine C. Hudson, Texas Department of Public Safety, CRS Legal - Expunctions, Austin, Kyle Hawkins, Gibson Dunn & Crutcher LLP, Houston, for Petitioner Texas Department of Public Safety in No. 20-0977.

Jason Niehaus, Bodkin Niehaus Dorris PLLC, Flower Mound, Nathaniel Miller, The Law Offices of Nathan Miller, PLLC, Denton, for Respondent T., K. in No. 20-0977.

Jeanine C. Hudson, Amanda B. Morrison, Texas Department of Public Safety, CRS Legal - Expunctions, Austin, Kyle Highful, Office of the Attorney General, Austin, Mary Kay Sicola, Austin, for Petitioner Texas Department of Public Safety in No. 21-0075.

Jason Niehaus, Bodkin Niehaus Dorris PLLC, Flower Mound, for Respondent Ferris, Charles in No. 21-0075.

Mark W. Bennett, Bennett & Bennett, Houston, for Amici Curiae Bennett, Mark W., Haygood, Lane A.

Jane Kadirhan, Kadirhan Law Firm, Austin, Michael Gross, Gross & Esparza, P.L.L.C., San Antonio, Niles Stefan Illich, Scott H. Palmer, P.C., Addison, for Amicus Curiae Texas Criminal Defense Lawyers Association.

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.

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.

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 Ex parte K.T. , a divided panel of the Second Court of Appeals affirmed.³ In Ex parte 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 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 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

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.

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 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...