Ex parte Ferris

Decision Date02 October 2020
Docket NumberNo. 05-19-00835-CV,05-19-00835-CV
Citation613 S.W.3d 276
Parties EX PARTE Charles FERRIS
CourtTexas Court of Appeals


Opinion by Justice Pedersen, III 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.


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 statuteTexas 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.

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 55.01we review the trial court's ruling de novo. T.S.N. , 547 S.W.3d at 620.1 "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).2 "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.

"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...

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    ...I do not agree with that interpretation of "criminal episode." Instead, I agree with the meaning the Dallas Court of Appeals proposed in Ex parte Ferris in an opinion authored by Justice Pedersen, which held that a criminal episode, when properly considered in context, is the repeated commi......
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