Opinion issued December 28 , 2018

In The Court of Appeals For The First District of Texas

———————————— NO. 01
- 16
- 00420
- CV

——————————— TEXAS EDUCATION AGEN CY , Appellant

V. S.E.H. , Appellee

On Appeal from the 268th District Court Fort Bend County, Texas Trial Court Case No. 15
- DCV
- 227070

CONCURRING OPINION ON EN BANC R ECONSIDERATION The question prese nted is whether S.E.H. satisfies the statutory requirements for exp unction. I conclude that he does , and I join the majority opinion. I write separately to elaborate on my reasons for reaching that conclusion

.2

Texas’s expunction statute identifies discrete exceptions to the general rule that records are not erased. As relevant here, article 55.01 creates an “entitle[ment]” to expunction of records relating to an arrest if the “the person has been released and the charge, if any, has not resulted in a final conviction and is no longer pending and there was no court

- ordered community supervision under Chapter 42A for the offense , ” provided that the person’s i ndictment was dismissed as void, dismissed for lack of probable cause, or one of several other conditions was met. T EX
. C ODE C RIM
. P ROC
. a rt. 55.01(a), (a)(2). It is undi sputed that S.E.H. meets most of the expunction requirements . The question here is whe ther, under Chapter 55 of the Code of Criminal Procedure

— titled “Expunction of Criminal Records”

— “there was no court

- ordered community supervision

. . . for the offense ” charged under Texas Penal Code section 33.021(b). 1
Id. (emphasis added). We cannot answer this question without addressing the fact

1 “Offense” means “crime” or a violation or infraction of law. B LACK ’ S L AW D ICTIONARY (10th ed. 2014); see also W EBSTER ’ S N EW C OLLEGIATE D ICTIONARY 790 (Henry Bosley Woolf ed., 1981). “Was” is the past tense of the verb to be, which in turn means (among other things) to exist. See W EBSTER ’ S N EW C OLLEGIATE D ICTIONARY at 9 5 ; accord M ERRIAM

- W EBSTER D ICTIONARY , https://www.merriam

- webster.com/dictionary/was (last visited Dec. 17, 2018)

. And under article 42A, “‘ [c] ommunity supervision’ means the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a spe cified period during which: (A) criminal proceedings are deferred without an adjudication of guilt; or (B) a sentence of imprisonment or confinement, imprisonment and fine, or confinement and fine, is probated and the imposition of sentence is sus pended in whole or in part.” T EX
. C ODE C RIM
. P ROC
. art. 42A.001(1)

.3

that section 33.021(b) was held facially unconstitutional. See Ex parte Lo , 424 S.W.3d 10, 20 (Tex. Crim. App. 2013) (holding section 33.021(b) unconstitutional)

. That is because the sole community supervisi on order in this case was for “an offense” charged under section 33.021(b). Binding precedent is clear that “an unconstitutional statute is void from its inception.” Smith v. State , 463 S.W.3d 890, 895 (Tex. Crim. App. 2015) (quoting Reyes v. State , 753 S .W.2d 382, 383 (Tex. Crim. App. 1988))

. “ [W]hen a statute is adjudged to be unconstitutional, it is as if it had never been

. ” Id. ; see also Reynoldsville Casket Co. v. Hyde , 514 U.S. 749, 759

– 61, 115 S. Ct. 1745, 1752 (1995) (Scalia, J., concurring) ( “[W] h at a court does with regard to an unconstitutional law is simply to ignore it. It decides the case ‘ disregard ing the [unconstitutional] law ,’ Marbury v. Madison , 1 Cra nch 137, 178, 2 L.Ed. 60 (1803) (emphasis added) , because a law repugnant to the Constitu tion ‘is void, and is as no law.’”) (citation omitted). Because “an uncon stitutional [criminal] statute . . . [is] no statute at all,” an “offense” charged under the statute is no offense at all. See Reyes , 753 S.W.2d at 383

– 84. Court

- ordered punishment u nder an unconstitutional statute is likewise void. Id. (“Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, a nd justifies no acts performed under it.”) (citation4

omitted); see also Ex parte Siebold , 100 U.S. 371, 376 (1879) (“An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void . . . .”); accord Montgomery
v. Louisiana , 136 S. Ct. 718, 730

– 31 (2016). Where , for instance, a “judgment imposing probation [ is ] void, then the trial court would have no authority to revoke [the] probatio[ n ] , since, with no judgment imposing probation (because it is a nullity), there is nothing to revoke.” Nix v. State , 65 S.W.3d 664, 6 68 (Tex. Crim. App. 2001); see also Martinez v. State , 194 S.W.3d 699, 701 (Tex. App.

— Houston [14th Dist.] 2006, no pet.) (sa me). In a case like this one , it is as if the “offense” and court

- ordered community supervision “ for th [at] offense ” did not legally exist

. See Reyes , 753 S.W.2d at 383

– 84 ; see also Ex parte Siebold , 100 U.S. at 376; Ex parte C.D ., No. 12

- 17

- 00309,
2018 W L 3569838, *3 (Tex. App.

— Tyler July 25, 2018, pet. filed) (mem. op.) (“[T]he statute under which C.D. was arrested has been declared unconstitutional, and, as a result, it is as if C.D.’s arrest never occurred.”); In re N.G. , – N.E.3d

– , 2018 IL 121939, 20 18 WL 6598821 , at *7 (Ill. Dec. 17 , 2018) (“ To hold that a statute is facially unconstitutional means that the conduct it proscribed was beyond the5

power of the state to punish . . . . That being the case, the conviction must be treated by th e courts as if it did not exist . . . . ” ) (citations omitted)

. 2 For these reasons, S.E.H. satisfies the expunction statute’s plain terms. S.E.H. has met his burden of showing , as a matter of law, that “ there was no court

- ordered community supervision under Chapter 42A f or the offense

. ” See T EX
. C ODE C RIM
. P ROC
. a rt. 55.01(a) (emphasis added)

. S ection 33.021(b) ’s unconstitutional ity renders the “ offense ” (i.e. crime) and “ court

- ordered ” punishment thereunder legally void. 3 There was “no judgment imposing [community supervision] (because it is a

2 It is not uncommon for courts to indulge a legal fiction or disregard certain evidence when required by law. For instance, courts hold that “evidence is legally insufficient to support a jury finding when . . . the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact . . . .” Gunn v. McCoy , 554 S.W.3d 645, 658 (Tex. 2018); City of Keller v. Wilson , 168 S.W.3d 802, 810

– 12 (Te x. 2005).

3 N otably, the Legislature expressly included a void indictment as one of the limited circumstances in which expunction could be warranted. U nless prosecution is no longer possible, an individual who has not been pardoned or acquitted and seeks expunction must demonstrate (in addition to oth er necessary showings) that (1) an indictment has not been presented and other conditions are met or (2) if the indictment has been pres ented, it was dismissed or quashed because: (a) the person completed a speci fied “veterans treatment court program” ; (b) the person completed a “pretrial intervention program authorized under Section 76.011” ; (c) “the presentment had been made because of mistake, false information, or other similar reason indicating absence of probable ca use at the time of the dismissal to believe the person committed the offense” ; or (d) “ the indictment or information was void. ” T EX
. C ODE C RIM
. P ROC
. art. 55.01(a)(2)( A)(ii) ( emphasis added). S ection 33.021(b)’s unconstitutionality renders void any indictment under it , just as it6

nullity)

. ” Nix , 65 S.W. 3d at 667

– 68. The dissent’s conclusion that S.E.H. served
court

- ordered community supervision as a matter of historical fact does not account for the legal ef

fect of section 33.021(b)’s unconstitutionality. Two of our sis ter courts recently addressed closely analogous question s and reached the same conclusion, permitting expunction when the statute under which a person was convicted was later declared unconstit utional. See Ex parte E.H. , – S.W.3d

– , No. 02

- 17

- 00419

- CV, 2018 WL 4050556, at *7 (Tex. App.

— Fort Worth Aug. 16, 2018, pet. filed); C.D ., 2018 WL 3569838, at *3

. Similarly, in Thompson
v. State , 604 S.W.2d 180, 181

– 82 (Tex. Crim. App. 1980), the Court of Criminal Appeals held that a prior void conviction did not foreclose a jury from recommending probation, when the relevant statute allowed probation only if the defendant had never been “convicted.” As the court explained, “[i]t is axiomatic that
the convi ction must . . . be a valid conviction.” Id ; see also State v. Marshall , 60 Ohio App. 2d 371, 371

– 73, 397 N.E.2d 777, 778

– 79 ( 1 st Dist. 1979) (expunction statute’s exclusion of all but first offenders did not preclude expunction where appellant’s prior con viction was under an unconstitutional statute). The question before us is not whether the Legislature could have foreclosed expunction even if one’s punishment was ordered under an unconstitutional statute.

renders void any court

- ordered punishment. See Ex parte Weise , 55 S.W.3d 617, 620 (Tex. Crim. App. 2001)

.7

Texas law says that expunction is not a right; it is a statutory privilege that the Legislature h as created and could remove entirely. In re State Bar of Texas , 440 S.W.3d 621, 624 (Tex. 2014). And of course , the fact that one actually served community supervision, although under a void statute, might be probative of certain facts, such as where the i ndividual was at a particular time. But a rticle 55.01(a)’s text provides no basis to deprive S.E.H. of a statutory privilege to which he would be entitled but for legally nonexistent community supervision for a void offense

. Because S.E.H. satisfies artic le 55.01(a)’s plain terms, he is entitled to expunction.

Jennifer Caughey Justice The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes, Higley, Bland, Massengale, Brown, Lloyd, and Caughey. Justice Massengale writing for the majority of the en banc court, joined by Chief Justice Radack and Justices Keyes, Higley, Bland, Brown , and Caughey

. Justice Jennings, concurring in the judgment , joined by Justice Higley. Justice Caughey, concurring, joined by Justices Ke yes and Brown. Justice Lloyd, dissenting

.