TEXAS EDUCATION AGENCY, Appellant v. S.E.H., Appellee

NO. 01-16-00420-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 28, 2018

**OPINION ON EN BANC RECONSIDERATION**

Michael Massengale, Justice

This appeal involves a statute authorizing expunction of arrest records and its application to a former school teacher who, over the course of several months, solicited sex online from a person he believed to be a thirteen-year-old girl. In reality, appellee S.E.H. was communicating with a police officer who kept records of their interactions as part of a sting operation.

S.E.H. was eventually arrested for the felony offense of online solicitation of a minor,1 and he pleaded guilty. Rather than being immediately sentenced to a punishment, he received deferred adjudication. As a condition of his community supervision, he surrendered his educator certification to the Texas Education Agency. But after the relevant penal statute was held to be unconstitutionally overbroad in violation of the First Amendment, S.E.H. obtained habeas corpus relief and dismissal of the case against him.2 He subsequently petitioned for expunction of all records and files relating to the arrest.3 The TEA opposed expunction generally, and it expressed a desire to maintain a copy of records received from the police that documented conduct before the arrest and that could be relevant to any future application by S.E.H. to have his educator certification restored.

The district court entered an expunction order that the TEA appeals on two grounds. First, it argues that S.E.H. was not entitled to an expunction remedy because he served court-ordered community supervision, which the TEA contends is a disqualifying factor. Second, the TEA argues that the scope of the expunction order is overbroad to the extent it is prohibited from maintaining records memorializing S.E.H.'s conduct. We conclude that the trial court correctly *374found that S.E.H. is entitled to the expunction remedy. We further conclude that the TEA has not preserved any challenge to the form or scope of the expunction order as entered, nor to any question of whether any particular document must be expunged. We therefore affirm the expunction order.

**I**

The threshold question in this appeal is whether the historical fact of S.E.H.'s community supervision disqualifies him from obtaining an expunction remedy available to people who were released without any resulting final conviction, but that excludes people who avoided final conviction by successfully completing community supervision.4 The TEA argues that S.E.H. cannot escape the historical facts that he pleaded guilty and received court-ordered community supervision, thus rendering him ineligible for expunction. S.E.H. responds that, as a legal matter, he was never placed on community supervision because the prosecution was void from the outset (or, as the relevant precedents put it, "void *ab initio* ").

In *Ex parte Lo* , the Court of Criminal Appeals held that the statute under which S.E.H. was convicted, Section 33.021(b) of the Penal Code, was unconstitutionally overbroad because it prohibited a wide array of constitutionally protected speech and was not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse.5 In the wake of that decision, the Court had opportunities to address the posture of prior prosecutions under the invalidated statute. It stated that when a statute is adjudged to be unconstitutional, it is "as if it had never been"-"void from its inception" and "stillborn."6 A petition for habeas corpus in that circumstance was framed by the Court as seeking "relief for a conviction of a non-crime under a statute that has already been held to be invalid."7 The relief rendered in that scenario was a judgment of acquittal, based on the characterization of such convictions as "facially unconstitutional," " 'stillborn,' " and "void *ab initio* ."8

*375Against this legal background, we must determine whether S.E.H. is eligible to have the records and files relating to his arrest expunged under Article 55.01(a)(2) of the Code of Criminal Procedure. As relevant to this case, the expunction statute provides:

> Art. 55.01. RIGHT TO EXPUNCTION. (a) 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:

> ....

> (2) 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 ....

> ....

The TEA contends that this statute renders S.E.H. ineligible for expunction remedies because, as a matter of historical fact, there was a court-ordered community supervision under Chapter 42A for his offense. We are unpersuaded that the legal analysis is that simple. We must consider the context of the entire statute,9 which contains no indication that its application should not account for both historical facts and the legal significance of those events.10 The expunction statute does not foreclose applications based on the understanding that when a prosecution was void *ab initio* , any resulting court-ordered community supervision also was void *ab initio* ,11 just as any resulting conviction was likewise void *ab initio* .12 This legally informed interpretation does no violence to the expunction statute's plain text, and it aligns with the self-evident statutory policy objective of authorizing expunction when a person has been released under circumstances in which there has been and will be no resulting final conviction-except when the only reason for avoiding a final conviction was the successful completion of court-ordered community supervision.13

*376Expunction is a statutory privilege, and the Legislature could withhold it from people who engaged in the conduct of soliciting minors online yet escaped criminal prosecution due to the constitutional defect found in *Ex parte Lo* . The Legislature has not done so. Instead, the expunction remedy is available to people acquitted of crimes,14 and acquittal is the remedy received by those who were wrongly convicted under Section 33.021(b) due to its constitutional infirmities.15

Statutory construction is a holistic endeavor.16 Our interpretation applies the expunction statute consistently to all prosecutions under an unconstitutional statute regardless of whether, as a matter of procedural history, the legally acquitted petitioner had been convicted or had received probation instead. The statute does not require otherwise. In both circumstances, void legal consequences from void statutes are treated as void from their very inception. Under the expunction statute as currently written, an episode of community supervision imposed pursuant to a void statute must be treated just as it would be treated in other legal circumstances: as a legal nullity, vanished in a puff of smoke,17 stuffed down the memory hole just like the expunction of official documents that the Legislature has authorized for people convicted then acquitted under an unconstitutional statute.

Pursuant to article 55.01(a)(2) of the Code of Criminal Procedure, we hold that S.E.H., a person who was arrested for commission of a felony, is entitled to have all records and files relating to the arrest expunged because he has been released, and the charge has not resulted in a final conviction and is no longer pending. The prosecution was void *ab initio* , and as a matter of law there was no court-ordered community supervision under Chapter 42A for the offense.18

**II**

In its remaining issue, the TEA challenges the scope of the expunction order as overbroad. It asks us to "confirm that the trial court's understanding of the scope of expunction is erroneously broad," and that the expunction statute allows it "to retain the documents in its files describing S.E.H.'s relevant conduct once those documents have been redacted to remove all references to S.E.H.'s arrest."

*377These issues were not presented or preserved in the trial court. The TEA did not challenge the language of the expunction order by suggesting what it ought to say differently. The TEA did not present evidence or authority to support an argument that it could satisfy the expunction statute, which provides a remedy that consists of expunging "all records and files relating to the arrest," merely by redacting all references to S.E.H.'s arrest. An "incident report" generated by the Sugar Land Police Department was discussed at the expunction hearing as a document that TEA wanted to "keep" because it described the sting operation and "conduct that occurred," but that document also discussed the execution of an arrest warrant. Other than that discussion, the TEA made no record of what other documents it sought to exclude from the scope of the expunction order, or what specific redactions to any such documents it proposed to satisfy the expunction statute.

At the conclusion of the hearing, the trial judge stated that the "incident report ... constitutes part of the arrest records and constitutes an expungeable item." He then signed the proposed expunction order in the form that had been agreed by S.E.H.'s counsel and the Fort Bend County district attorney's office.

To the extent the TEA now argues that particular documents in the record described S.E.H.'s conduct without referencing his arrest, no ruling was requested to determine whether any other particular documents might not be subject to expunction. And as acknowledged by S.E.H.'s brief, the TEA still may have procedural avenues by which it can contest the applicability of the expunction order to specific documents.19 But the relief requested in this appeal-instructions that the trial court modify the expunction order to allow the TEA to maintain documents with redactions of references to S.E.H.'s arrest-was not requested in the trial court. Accordingly, on the record before us, we overrule the TEA's challenge to the scope of the expunction order,20 and we express no opinion about whether any particular documents must be expunged under that order as it stands.

* * *

The trial court did not err by granting S.E.H.'s petition for expunction. Accordingly, we affirm the order.

En banc reconsideration was granted. Tex. R. App. P. 49.7.

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 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 Keyes and Brown.

1

*See* Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws 4049, 4050 (amended 2007, 2015) (current version at Tex. Penal Code § 33.021(b) ).

2

*See* Tex. Code Crim. Proc. art. 11.072.

3

*See id.* art. 55.01(a)(2).

4

*See id.* ; *see also id.* art. 42A.001(1) (for purposes of chapter 42A, " 'Community 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 specified 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 suspended in whole or in part.").

5

424 S.W.3d 10, 14 (Tex. Crim. App. 2013).

6

*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), and *Ex parte Bockhorn* , 62 Tex.Crim. 651, 138 S.W. 706, 707 (Tex. Crim. App. 1911) ); *see also**Ex parte Siebold* , 100 U.S. 371, 376, 25 L.Ed. 717 (1880) ("An unconstitutional law is void, and is as no law."); *accord**Montgomery v. Louisiana* , --- U.S. ----, 136 S.Ct. 718, 730-31, 193 L.Ed.2d 599 (2016).

7

*Smith* , 463 S.W.3d at 896.

8

*Id.* at 895-96 (quoting *Reyes* , 753 S.W.2d at 383 ); *see also**Ex parte Chance* , 439 S.W.3d 918, 919 (Tex. Crim. App. 2014) (Cochran, J., concurring) ("For this reason, a person may always obtain relief from an indictment or a conviction based on a penal statute that has been previously declared unconstitutional. He may obtain relief in a pretrial motion or writ; he may obtain relief on direct appeal; he may obtain relief in a habeas corpus proceeding, and it matters not whether he had ever previously objected to the statute or its application to him. The unconstitutional statute has disappeared in a puff of smoke. No one can be convicted for a non-existent crime and no prior conviction based upon that unconstitutional statute is valid.").

9

*See**State v. T.S.N.* , 547 S.W.3d 617, 620 (Tex. 2018) ; *Jones v. Fowler* , 969 S.W.2d 429, 432 (Tex. 1998) (per curiam) ("we must read the statute as a whole and interpret it to give effect to every part").

10

*See* Antonin Scalia, *Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws* , in A Matter of Interpretation 23 (1997) ("A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.").

11

*See**Nix v. State* , 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) ("If the original judgment imposing probation was void, then the trial court would have no authority to revoke probations, since, with no judgment imposing probation (because it is a nullity), there is nothing to revoke."); *cf.**Harris Cty. Dist. Attorney's Office v. D.W.B.* , 860 S.W.2d 719, 722 (Tex. App.-Houston [1st Dist.] 1993, no writ) (affirming expunction order after habeas corpus relief was granted in a misdemeanor case, despite the fact that petitioner had deferred adjudication, when the relief consisted of an order granting a new trial restoring the case to its position before the former trial, to the effect that "there was never valid court-ordered probation").

12

*Smith* , 463 S.W.3d at 896 ; *accord**Ex parte E.H.* , No. 02-17-00419-CV, --- S.W.3d ----, ----, 2018 WL 4050556, at *6-7 (Tex. App.-Fort Worth Aug. 16, 2018, pet. filed) ; *Ex parte C.D.* , No. 12-17-00309-CV, 2018 WL 3569838, at *3 (Tex. App.-Tyler July 25, 2018, pet. filed) (mem. op.).

13

*See generally* Tex. Code Crim. Proc. art. 55.01(a)(2) (restricting application of expunction remedy to circumstances when prosecution against the person is no longer possible because the limitations period has expired, or a significant time has passed since the arrest without the filing of a new charge arising from the same transaction and the records are not required for use in connection with any other felony charge or other criminal investigation or prosecution).

14

*See**id.*

15

*Smith* , 463 S.W.3d at 895-96.

16

*See**United Sav. Ass'n of Tex. v. Timbers of Inwood Forest Assocs., Ltd.* , 484 U.S. 365, 371, 108 S.Ct. 626, 630, 98 L.Ed.2d 740 (1988).

17

*Ex parte Chance* , 439 S.W.3d at 919 (Cochran, J., concurring).

18

We also reject the TEA's argument that S.E.H. is not entitled to expunction because Article 55.01(a)(2)(A)(ii) required him to prove and the trial court to find that his indictment was dismissed. At the time of the expunction petition, prosecution of S.E.H. for the offense for which he was arrested was no longer possible because (among other reasons) the limitations period has expired. *See* Tex. Code Crim. Proc. arts. 12.01(7), 55.01(a)(2)(B). Further, the TEA's complaints about S.E.H.'s pleading deficiencies for failure to include complete information as required by Article 55.02, Section 2(b)(1) (e.g., petitioner's full driver's license number and social security number; date, county, and municipality of arrest; and name of arresting agency) do not implicate the sufficiency of the evidence to support the expunction order, *see* Tex. R. App. P. 33.1(d), and they have been waived due to failure to raise them before the judgment was signed. Tex. R. Civ. P. 90. To the extent the order failed to include S.E.H.'s social security number and date of arrest, *see* Tex. Code Crim. Proc. art. 55.02, § 3(b), we conclude that the TEA has failed to demonstrate that these are reversible errors. *See* Tex. R. App. P. 44.1(a).

19

Br. at 17 ("[T]he Agency might seek a declaratory judgment. Or it might fail to return the records to the trial court, risking being held in contempt and having the employees involved prosecuted criminally for failing to comply with the expunction order." (footnote omitted) ).

20

*See* Tex. R. App. P. 33.1(a).

Justice Lloyd, dissenting.

**CONCURRING OPINION ON EN BANC RECONSIDERATION**

Terry Jennings, Justice

The Texas Court of Criminal Appeals has expressly declared that *378section 33.021(b) of the Texas Penal Code ("online solicitation of a minor"),1 the statutory provision under which appellant, S.E.H., was convicted, is facially unconstitutional. *See**Ex Parte Lo* , 424 S.W.3d 10, 27 (Tex. Crim. App. 2013). An unconstitutional statute is "void from its inception," and "when a statute is adjudged to be unconstitutional, it is as if it had never been." *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) ). In other words, "an unconstitutional statute in the criminal area is to be considered no statute at all." *Id.* (quoting *Reyes* , 753 S.W.2d at 383 ). As such, a judgment entered against a defendant for violation of an unconstitutional statute is also void. *See**Reyes* , 753 S.W.2d at 383 ("[G]enerally a void law is no law and confers no rights, bestows no power on anyone and justifies no act performed under it.") (citing *Sharber v. Florence* , 131 Tex. 341, 115 S.W.2d 604 (1938) ). "[W]here an original judgment imposing [community supervision] is void, there is no judgment imposing [community supervision], and, accordingly, nothing to revoke." *Martinez v. State* , 194 S.W.3d 699, 701 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (citing *Nix v. State* , 65 S.W.3d 664, 668-69 (Tex. Crim. App. 2001) ).

Appellee, S.E.H., was convicted of the offense of online solicitation of a minor under section 33.021(b) of the Texas Penal Code, which, at the time, provided as follows:

> (b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure, the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:

> (1) communicates in a sexually explicit manner with a minor; or

> (2) distributes sexually explicit material to a minor.

TEX. PENAL CODE ANN. § 33.021(b) (Vernon 2017). In *Ex Parte Lo* , the court of criminal appeals held that this provision is facially unconstitutional. 424 S.W.3d at 27.

Because the statutory provision under which S.E.H. was convicted is void, the judgment in which the trial court imposed community supervision upon him is also void. *See**Smith* , 463 S.W.3d at 895 ; *Martinez* , 194 S.W.3d at 701. Thus, there is no logical basis to hold that the court below erred in granting S.E.H. an expunction of his conviction. The fact that the trial court had placed S.E.H. on community supervision is of no consequence.

Respectfully, the dissent's interpretation of the expunction statute2 would lead to the ultimate absurd result: a situation in which it would impose upon S.E.H. the lasting stigma of a felony conviction that is based upon a void judgment. Moreover, to reach such a result, this Court would have to overrule the binding precedent of *Harris County District Attorney's Office v. D.W.B.* , 860 S.W.2d 719 (Tex. App.-Houston [1st Dist.] 1993, no pet.). However, there is a "strong presumption" against overruling precedent. *Gutierrez v. Collins* , 583 S.W.2d 312, 317 (Tex. 1979). Under the rule of stare decisis, we should overrule a previous holding of this Court only for very important reasons and after careful deliberation. And it should go without saying that we should not overrule binding *379precedent to reach a patently erroneous result.

Accordingly, I concur in the judgment of the Court.

**CONCURRING OPINION ON EN BANC RECONSIDERATION**

Jennifer Caughey, Justice

The question presented is whether S.E.H. satisfies the statutory requirements for expunction. I conclude that he does, and I join the majority opinion. I write separately to elaborate on my reasons for reaching that conclusion.

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 indictment was dismissed as void, dismissed for lack of probable cause, or one of several other conditions was met. TEX. CODE CRIM. PROC. art. 55.01(a), (a)(2).

It is undisputed that S.E.H. meets most of the expunction requirements. The question here is whether, 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 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 supervision 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, 131 L.Ed.2d 820 (1995) (Scalia, J., concurring) ("[W]hat a court does with regard to an unconstitutional law is simply to *ignore* it. It decides the case '*disregarding the [unconstitutional] law* ,' *Marbury v. Madison* , 1 Cranch 137, 178, 2 L.Ed. 60 (1803) (emphasis added), because a law repugnant to the Constitution 'is void, and is as no law.' ") (citation omitted).

Because "an unconstitutional [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 under an unconstitutional statute is likewise void.

*380*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, and justifies no acts performed under it.") (citation omitted); *see also**Ex parte Siebold* , 100 U.S. 371, 376, 25 L.Ed. 717 (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* , --- U.S. ----, 136 S.Ct. 718, 730-31, 193 L.Ed.2d 599 (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, 668 (Tex. Crim. App. 2001) ; *see also**Martinez v. State* , 194 S.W.3d 699, 701 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (same).

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 WL 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.* , 115 N.E.3d 102, 118, 2018 IL 121939, 2018 WL 6598821, at *7 (Ill. Dec. 17, 2018) ("To hold that a statute is facially unconstitutional means that the conduct it proscribed was beyond the power of the state to punish .... That being the case, the conviction must be treated by the 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 *for the offense* ." *See* TEX. CODE CRIM. PROC. art. 55.01(a) (emphasis added). Section 33.021(b)'s unconstitutionality renders the "offense" (i.e. crime) and "court-ordered" punishment thereunder legally void.3 There was "no judgment imposing [community *381supervision] (because it is a 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 effect of section 33.021(b)'s unconstitutionality.

Two of our sister courts recently addressed closely analogous questions and reached the same conclusion, permitting expunction when the statute under which a person was convicted was later declared unconstitutional. *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 conviction 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 (1st Dist. 1979) (expunction statute's exclusion of all but first offenders did not preclude expunction where appellant's prior conviction 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. Texas law says that expunction is not a right; it is a statutory privilege that the Legislature has 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 individual was at a particular time. But article 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 article 55.01(a)'s plain terms, he is entitled to expunction.

**DISSENTING OPINION ON EN BANC RECONSIDERATION**

Russell Lloyd, Justice

Appellant Texas Education Agency is appealing an order of expunction of criminal records granted to S.E.H. In two issues, TEA argues that the trial court abused its discretion by granting S.E.H.'s petition for expunction because S.E.H. did not prove that he satisfies all of the statutory prerequisites for expunction. A majority of this Court holds that S.E.H. is entitled to expunction. For the reasons cited herein, I respectfully dissent.

**Background**

It is undisputed that S.E.H., a Texas public school teacher, repeatedly solicited sex from a person he believed to be a thirteen-year-old girl. He was arrested for the felony offense of online solicitation of a minor in violation of Texas Penal Code section 33.021(b). S.E.H. pleaded guilty and, pursuant to a plea bargain with the State, was placed on eight years' deferred adjudication community supervision. He surrendered his educator certificate to TEA as a condition of his community supervision. These facts are documented in the Sugar Land Police Department's Incident Report, which includes an initial report of the sting operation targeting an internet chat room that resulted in S.E.H.'s arrest, and several supplemental reports on the same matter (the Reports).

*382After the Texas Court of Criminal Appeals found Penal Code section 33.021(b) facially unconstitutional in *Ex parte Lo* , 424 S.W.3d 10, 27 (Tex. Crim. App. 2013), S.E.H. filed an application for writ of habeas corpus pursuant to Code of Criminal Procedure article 11.072, which "establishes the procedures for an application for a writ of habeas corpus in a felony or misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering community supervision." TEX. CODE CRIM. PROC. art. 11.072, § 1. The application was granted and the case against him was dismissed.

S.E.H. then filed a petition for expunction of criminal records relating to his arrest for the felony offense of online solicitation of a minor. TEA filed a general denial, demanding strict proof of S.E.H.'s eligibility for expunction and all other statutory prerequisites.

Although no testimony or evidence was admitted during the hearing on this matter, the trial court took judicial notice of the Reports at TEA's request. After the hearing, the trial court found that the Reports were part of the arrest record, granted the petition, and issued an order expunging "all records of [S.E.H.]'s arrest" as well as "all records of [S.E.H.]'s prosecution."

TEA timely moved for a new trial and for formal admission of the Reports into evidence. After a second hearing, the trial court denied TEA's motions. This appeal followed.

**Statutory Prerequisites for Expunction**

TEA argues that the trial court abused its discretion when it granted S.E.H.'s petition because S.E.H. failed to demonstrate that he was not placed on community supervision, which is a statutory prerequisite for expunction. *See* TEX. CODE CRIM. PROC. art. 55.01(a)(2).

**A. Standard of Review and Applicable Law**

**1. Petition for Expunction**

The remedy of expunction allows a person who has been arrested for the commission of an offense to have the records and files relating to the arrest expunged if he meets the statutory requirements of article 55.01 of the Code of Criminal Procedure. *See* TEX. CODE CRIM. PROC. art. 55.01 ; *see also**Collin Cty. Dist. Attorney's Office v. Fourrier* , 453 S.W.3d 536, 538 (Tex. App.-Dallas 2014, no pet.). Expunction is a statutory privilege, not a constitutional or common law right. *McCarroll v. Tex. Dep't of Pub. Safety* , 86 S.W.3d 376, 378 (Tex. App.-Fort Worth 2002, no pet.) ; *see also**Fourrier* , 453 S.W.3d at 539. "A person is not entitled to expunction until all of the statutory conditions are met." *State v. T.S.N.* , 547 S.W.3d 617, 620 (Tex. 2018). Neither this Court nor the trial court has any equitable power to extend the protections of the expunction statute beyond its stated provisions. *See**Fourrier* , 453 S.W.3d at 539 ; *Tex. Dep't of Pub. Safety v. J.H.J.* , 274 S.W.3d 803, 806 (Tex. App.-Houston [14th Dist.] 2008, no pet.). Further, although the expunction statute is located in the Code of Criminal Procedure, an expunction proceeding is civil rather than criminal in nature, and the petitioner carries the burden of proving compliance with the statutory requirements. *T.S.N.* , 547 S.W.3d at 619 ; *Fourrier* , 453 S.W.3d at 539.

A trial court abuses its discretion if it orders an expunction of records despite a petitioner's failure to satisfy all of the statutory requirements. *Fourrier* , 453 S.W.3d at 539 ; *see also**Travis Cty. Dist. Attorney v. M.M.* , 354 S.W.3d 920, 929 (Tex. App.-Austin 2011, no pet.).

**2. Applicable Law***383Article 55.01 of the Code of Criminal Procedure states that "[a] person who has been placed under a custodial ... arrest for commission of ... a felony ... is entitled to" expunction upon presentation of proof that he or she "has been released and the charge ... 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 ...." TEX. CODE CRIM. PROC. art. 55.01(a), (a)(2).

**B. Statutory Prerequisites for Expunction: Community Supervision**

TEA argues that S.E.H. was not entitled to an expunction because S.E.H. did not meet his burden to show that he was not placed on community supervision. The record reflects-and S.E.H. admitted-that he was placed on community supervision and he acknowledges that "[i]n the ordinary course of things SEH would not have been entitled to expunction." He argues, however, that section 33.021(b) is not a valid penal statute because the Court of Criminal Appeals later held that the statute was facially unconstitutional for overbreadth in *Ex parte Lo* , and therefore "all prosecutions under that statute were rendered void *ab initio.* " S.E.H. does not contest the fact that he engaged in the conduct for which he pleaded guilty. Therefore, "[t]he conduct on which the criminal prosecution was based still exists as a matter of historical fact." *Ex parte Fournier* , 473 S.W.3d 789, 793 (Tex. Crim. App. 2015).

*Ex parte Fournier* discusses at length the effect of historical reality on the status of persons whose convictions were overturned by *Ex parte Lo* . In *Ex parte Chance* , those persons were referred to as "actually Innocent" because they were convicted under a "nonexistent" statute. *Ex parte Chance* , 439 S.W.3d 918, 922 (Tex. Crim. App. 2014). *Ex parte Fournier* walks this declaration back a bit by making a distinction between "actual" innocence and "factual" innocence. *Ex parte Fournier* , 473 S.W.3d at 792. "Our opinion in *Lo* is irrelevant to whether Applicants' conduct was in fact committed." *Id.* at 793. This became necessary because a declaration of "actual innocence" would give the affected individual access to compensation from the state for wrongful conviction. TEX. CIV. PRAC. & REM. CODE § 103.001(a). Thus, despite the fact that their convictions "vanished in a puff of smoke" or were "stuffed down the memory hole," as the majority would have it, these individuals are barred from compensation for wrongful conviction and imprisonment because their offenses are still a matter of historical fact. Similarly, S.E.H.'s lawful arrest and conviction and sentence of community service is a fact and he should not have access to the undeserved windfall of expunction under a strictly interpreted civil statute.

The conduct to which S.E.H. pleaded guilty, solicitation of a minor for sexual activity, is still illegal under the laws of this state. TEX. PENAL CODE §§ 15.031 & 33.021(c). The statute legitimately, if unartfully, proscribed unlawful conduct. A portion of the statute was declared unconstitutional not to protect S.E.H. from unjust prosecution, but because the Court of Criminal Appeals made a judgment call that " '... possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted[.]' " *Ex parte Lo* , 424 S.W.3d at 18 (quoting *Broadrick v. Oklahoma* , 413 U.S. 601, 612, 93 S. Ct. 2908, 2916, 37 L.Ed.2d 830 (1973) ). It was declared unconstitutional for overbreadth, not for the benefit of S.E.H., but to protect the First Amendment rights to third parties not before the court. S.E.H. is relieved from all criminal penalties resulting from his conviction.

*384However, that does not mean he is entitled to all the remedies of a civil statute with which strict compliance is required.

The plain language of article 55.01 dictates that a petitioner is only entitled to expunction if "there was no court-ordered community supervision under Chapter 42A for the offense." TEX. CODE CRIM. PROC. art. 55.01(a)(2). The statute does not carve out an exception for persons like S.E.H. who were on court-ordered community supervision for violating a statute that was later determined to be facially unconstitutional or otherwise void, and we are not at liberty to rewrite the statute. *See**Stockton v. Offenbach* , 336 S.W.3d 610, 619 (Tex. 2011) ("When a statute is unambiguous, our role is to apply it as written despite its imperfections."); *Pub. Util. Comm'n of Tex. v. Cofer* , 754 S.W.2d 121, 124 (Tex. 1988) ("We are not free to rewrite the statutes to reach a result we might consider more desirable, in the name of statutory construction."). Neither this Court nor the trial court has any equitable power to extend the reach of the expunction statute beyond its stated provisions. *See**Fourrier* , 453 S.W.3d at 539 ; *J.H.J.* , 274 S.W.3d at 806.

The expunction statute has been amended fourteen times, including once since *Ex parte Lo* was issued in 2013. If the Legislature had wanted to include an exception for persons like S.E.H. who were on court-ordered community supervision for violating a statute that was determined to be unconstitutional or otherwise void, it could have done so. *See**Alex Sheshunoff Mgmt. Servs. v. Johnson* , 209 S.W.3d 644, 652-53 (Tex. 2006) (noting statutory amendments by Legislature were in response to court decisions).

Courts of this state have continually emphasized that the statute is to be strictly complied with and all the statutory elements must be proven by the applicant for expunction. *See**Fourrier* , 453 S.W.3d at 539 ; *Tex. Dep't of Pub. Safety v. Dicken* , 415 S.W.3d 476, 479 (Tex. App.-San Antonio 2013, no pet.) ; *Roberts v. Tex. Dep't of Pardons & Parole* , No. 01-09-01058-CV, 2011 WL 2435744, at *2 (Tex. App.-Houston [1st Dist.] June 16, 2011, no pet.) (mem. op.); *Tex. Dep't of Pub. Safety v. Dahlquist* , No. 01-08-00559-CV, 2010 WL 375930, at *2 (Tex. App.-Houston [1st Dist.] Feb. 4, 2010, no pet.) (mem. op.); *J.H.J.* , 274 S.W.3d at 806. It is true that S.E.H. is free from any criminal sanctions arising from his conviction, but article 55.01 is a strictly construed civil statute and S.E.H. has failed to prove his compliance with all of the statutory requirements for expunction.

I respectfully dissent from the holding of the majority and would find S.E.H. ineligible for expunction.

1

Tex. Penal Code Ann. § 33.021(b) (Vernon 2017).

2

Tex. Code Crim. Proc. Ann. art. 55.01(a) (Vernon 2018).

1

"Offense" means "crime" or a violation or infraction of law. BLACK's LAW DICTIONARY (10th ed. 2014); *see also* Webster's New Collegiate Dictionary 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* Webster's New Collegiate Dictionary at 95; *accord* Merriam-Webster Dictionary , 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 specified 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 suspended in whole or in part." Tex. Code Crim. Proc. art. 42A.001(1).

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 (Tex. 2005).

3

Notably, the Legislature expressly included a void indictment as one of the limited circumstances in which expunction could be warranted. Unless prosecution is no longer possible, an individual who has not been pardoned or acquitted and seeks expunction must demonstrate (in addition to other necessary showings) that (1) an indictment has not been presented and other conditions are met or (2) if the indictment has been presented, it was dismissed or quashed because:

> (a) the person completed a specified "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 cause at the time of the dismissal to believe the person committed the offense"; or

> (d) "*the indictment or information was void.* "

Tex. Code Crim. Proc. art. 55.01(a)(2)(A)(ii) (emphasis added). Section 33.021(b)'s unconstitutionality renders void any indictment under it, just as it renders void any court-ordered punishment. *See**Ex parte Weise* , 55 S.W.3d 617, 620 (Tex. Crim. App. 2001).