IN THE SUPREME COURT OF TEXAS

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NO. 18-0932

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EX PARTE E.H.

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ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS

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JUSTICE BLACKLOCK, dissenting.

E.H. pleaded guilty to felony online solicitation of a minor. Expunction of arrest records 

is only available to him if “there was no court-ordered community supervision under Chapter 42A 

for the offense.” TEX. CODE CRIM. PROC. § 55.01(a)(2). The Court acknowledges what it calls the 

“historical reality”: E.H. served community supervision for online solicitation, and a court ordered 

him to do it. Surely that’s the end of it, one would think. After all, if (1) there was community 

supervision for the offense, and (2) a court ordered it, then ineluctably (3) there was court-ordered 

community supervision for the offense. And if there was court-ordered community supervision 

for the offense, E.H. is not entitled to expunction.

Despite acknowledging that E.H. served community supervision and that a court ordered 

it, the Court somehow concludes that “there was no court-ordered community supervision under 

Chapter 42A for the offense.” According to the Court, in addition to the “historical reality” of 

E.H.’s community supervision and the court order imposing it, there is also a “legal reality,” under 

which we must pretend a court did not order E.H. to serve community supervision because the 
2

Court of Criminal Appeals decided the statute E.H. violated was unconstitutional.1 Until now, I 

would have thought the words “historical reality” redundant. When it comes to the past, any reality 

that is not historical is simply not real. There is only one “reality.” Events either happened or they 

didn’t. E.H.’s court-ordered community supervision happened. That’s the end of it, as far as the 

expunction statute is concerned. The Court, however, asserts not just the familiar judicial power 

to “say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). It now also asserts the 

unfamiliar, and to my mind unwelcome, power to say what the past was.

Perplexed by the Court’s decision and unwilling to say something did not happen when 

everyone knows it really did, I respectfully dissent.

* * *

As an initial matter, the Court reaffirms its prior holding that expunction is a matter of 

legislative grace, not a constitutional right. Ante at __ (citing In re State Bar of Tex., 440 S.W.3d 

621, 624 (Tex. 2014)). Thus, there is never an automatic entitlement to expunction, even when 

the underlying criminal statute is deemed unconstitutional. The Court does not contend that denial 

of expunction is an affirmative burden or punishment flowing from the crime. If expunction were 

conceptualized this way, there would be an argument that denying expunction to E.H. improperly 

continues to punish him for violating an unconstitutional statute. But neither the Court’s prior 

cases nor its reasoning today approach expunction that way. Instead, the Court correctly 

acknowledges that expunction is a purely statutory right available only to petitioners who meet the 

1 Normally, when lawyers and judges pretend things that aren’t really so, we call them “legal fictions.” The 

expunction statute is quite plainly concerned not with lawyerly fictions but with the reality of E.H.’s case history. 

Thus, the Court must conjure not a legal fiction but an alternate “legal” reality. 
3

parameters chosen by the Legislature. Only if E.H. satisfies the legislative standards governing 

expunction is he entitled to expunction, irrespective of the constitutionality of the onlinesolicitation statute. On this, I agree with the Court.

My disagreement is with the Court’s application of the expunction statute. As I read the 

legislative expunction rules, there is no difficulty applying them to this case. E.H. must show that 

“there was no court-ordered community supervision under Chapter 42A for the offense.” TEX.

CODE CRIM. PROC. § 55.01(a)(2). There plainly was, so E.H. cannot show there was not, and his

expunction petition must be denied.

As the Court reads the statute, the matter is complicated by the need to determine whether 

the statute E.H. violated was constitutional. But there is no indication whatsoever in the text of 

chapter 55.01 that the Legislature made expunction available to petitioners who served community 

supervision under statutes later determined by courts to be unconstitutional. Given the statute’s 

excruciating detail, one would expect to find a more explicit provision putting the constitutionality 

of the underlying statute on the table in cases like this one. Such a provision does not exist in this 

statute. The Court nevertheless manages to find it, lurking unspoken in the requirement that the 

petitioner show “there was no court-ordered community supervision under Chapter 42A for the 

offense.” What should be a simple box-checking exercise regarding the petitioner’s case history 

becomes an entrée to constitutional litigation.

The Court squeezes the elephant into the mousehole by focusing on the adjective “courtordered.” See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001) (“Congress, we have 

held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary 

provisions—it does not, one might say, hide elephants in mouseholes.”). The Court correctly 
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observes that as the State reads the provision, it means the same thing with or without the adjective 

“court-ordered,” because all community supervision under Chapter 42A is court-ordered. This 

superfluity of language must be avoided, the Court reasons. The adjective “court-ordered” before 

“community supervision” must add something to the statute’s meaning. In a quest to give it 

meaning, the Court decides it is an oblique invitation to examine the constitutional validity of the 

court order, which the Court says depends on the constitutionality of the underlying criminal 

statute. This approach contorts the statute into something it comes nowhere close to saying. 

Helpful canons of statutory construction—such as the presumption against superfluous words—

are not iron laws that require us to read meaning into a statute that just isn’t there. See

Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 133 (Tex. 1994) (“The general rule is 

that when a statute is clear and unambiguous a court should not use rules of construction or 

extrinsic aids to construe it, but should give the statute its common meaning.”). The presumption 

against superfluous words exists in service of the primary goal of statutory construction, which is 

to understand what the statutory words mean in plain English. As Justice Scalia aptly explained: 

Put to a choice, however, a court may well prefer ordinary meaning to an unusual 

meaning that will avoid surplusage. So like all other canons, this one must be 

applied with judgment and discretion, and with careful regard to context. It cannot 

always be dispositive because (as with most canons) the underlying proposition is 

not invariably true. Sometimes drafters do repeat themselves and do include words 

that add nothing of substance, either out of a flawed sense of style or to engage in 

the ill-conceived but lamentably common belt-and-suspenders approach.

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176–

77 (2012) (emphasis omitted).

Here, “community supervision” and “court-ordered community supervision” mean the 

exact same thing. Such linguistic redundancy is not uncommon and does not change the meaning 
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of a sentence. As in the phrases “gubernatorial pardon under Article IV, section 11” or “legislative 

statute” (or “African zebra in the wild”), the words “court-ordered community supervision under 

Chapter 42A” would mean the same thing if the adjective were removed. When the plain meaning 

of the words is the same with or without the adjective, forcing the words to mean something they 

do not say just to explain the adjective’s presence improperly elevates interpretive formalism over 

plain English.

In demanding that the words “court-ordered” be given independent meaning, the Court 

sacrifices the overarching goal of statutory construction—understanding what the words mean—

to the secondary concern of avoiding superfluous verbiage. But the Legislature does not speak in 

code. It does not bury big ideas like statutory constitutionality in words like “court-ordered” and 

then leave it up to us to employ the superfluous-language canon to divine its meaning. See 

Whitman, 531 U.S. at 468; see also Scalia & Garner, supra, at 69 (“Interpreters should not be 

required to divine arcane nuances or to discover hidden meanings.”). Instead, we presume the 

Legislature says what it means and means what it says. Cadena Comercial USA Corp. v. Tex. 

Alcoholic Bev. Comm’n, 518 S.W.3d 318, 337 (Tex. 2017). Here, the Legislature said expunction 

is available only if “there was no court-ordered community supervision under Chapter 42A for the 

offense.” All this language asks a court to do is to answer whether “there was.” Here, there was, 

so E.H.’s petition should be denied.

In any event, even if the adjective “court-ordered” needed to have independent meaning, 

there is no reason to think it imports concerns about the community supervision’s constitutional 

validity. Whether a court order was valid or constitutional has nothing to do with whether it was 

ordered by a court. All court orders are “court-ordered,” both the valid and the invalid. There is 
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an important distinction, for many purposes, between valid court-ordered community supervision 

and unconstitutional court-ordered community supervision. But it’s all “court-ordered community 

supervision.” By referring generally to “court-ordered community supervision,” the Legislature 

did not invoke a distinction between the valid kind and the invalid kind. Quite the opposite. By 

not distinguishing between valid and invalid court orders, the Legislature included all courtordered community supervision.

Oddly, the Court’s construction of the statute begins with the premise that all community 

supervision is court-ordered, and it ends with the conclusion that not all community supervision is 

court-ordered. Because all community supervision is court-ordered, the Court reasons, the 

statute’s use of the term “court-ordered” must mean something unexpected, lest it be superfluous. 

So the Court assigns meaning to “court-ordered,” and after applying that meaning, it concludes 

E.H.’s community supervision was not “court-ordered.” Thus, a logical sequence beginning with 

the premise that all community supervision is court-ordered somehow ends with the conclusion 

that E.H.’s community supervision was not court-ordered. I agree the premise is correct, but it 

cannot lead to a conclusion that refutes the premise. Because all community supervision is ordered 

by a court, all community supervision is “court-ordered community supervision,” whether it was 

constitutionally imposed or not.

* * *

According to the Court, we cannot simply ask whether “there was no court-ordered 

community supervision for the offense.” Never mind that is exactly what the statute says. No, we 

must also ask whether the statute E.H. violated was constitutional, even though the Legislature 

surely could have asked us to think about that if it wanted us to. As explained above, the 
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expunction statute itself provides no textual warrant to inquire into the constitutionality of the 

criminal law the petitioner violated. That alone should be reason enough not to do it.

A deeper flaw infects the Court’s thinking, however. The Court reasons that because the 

statute was declared unconstitutional, it was “void ab initio.” As the Court sees it, if the statute 

was “void ab initio,” then (1) we must act as if any orders or judgments issued pursuant to the 

statute never existed (even though we know they did), and (2) there was no “offense” for which 

E.H. could have served community supervision (even though we know there was). Neither of 

these statements is correct.

First, the Court says that if the underlying criminal statute turns out to be unconstitutional, 

past orders and judgments issued pursuant to the statute are also “void ab initio.” Ante at __. 

According to the Court, this means we must act as if these orders and judgments never happened. 

That is simply not right. The declaration of a statute’s unconstitutionality curtails prospective 

enforcement of the statute. It does not automatically nullify all orders and judgments issued in the 

past pursuant to the statute. And it certainly does not require us to take the additional step the 

Court takes—to pretend that these orders and judgments never existed at all.

The Court cites several cases holding that unconstitutional statutes are “void ab initio.” 

See, e.g., Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1998). It is one thing to say that 

when a statute is declared unconstitutional, we must now act as if it never existed. That is also not 

right, but leave it to one side for now. It is quite another thing altogether to say that when a statute 

is declared unconstitutional, a new “legal reality” arises under which all orders and judgments

previously issued pursuant to the statute must be treated as if they never happened. This extreme 

view of what it means for a statute to be “void ab initio” is not mandated by any of the cases the 
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Court cites. Those cases call the statute “void ab initio,” not the orders and judgments previously 

issued under it. But I take the Court to be saying much more. The Court says that the declaration 

of a statute’s unconstitutionality renders orders and judgments previously issued pursuant to the 

statute not just void, but beyond our power even to acknowledge as events in the past. This is what 

the Court must be saying in order to conclude “there was no court-ordered community supervision” 

when in reality there was.

The implications are stunning. Imagine a world in which the Court is right—a world in 

which the judicial declaration of a statute’s unconstitutionality means orders issued pursuant to 

that statute never existed. E.H. could sue his probation officer. Those imprisoned for violating 

the online-solicitation statute could sue their prison guards. The officers, of course, would point 

to the now-vacated court orders of community supervision or imprisonment, under which their 

actions were lawful at the time. Indeed, those court orders did not merely make the officers’ 

actions lawful. The orders compelled the officers to act as they did. As the Court understands the 

status of the orders, however, the officers could not raise them as a defense to liability—just like 

the State cannot raise them as a defense to expunction. Under the new “legal reality,” it is not just 

that the orders are no longer in effect. Their past existence cannot be acknowledged or allowed to 

have any current legal effect.

Obviously, that is not how it works. The officers in these hypothetical lawsuits could of 

course use the court orders under which they acted as a defense to liability, even if the underlying 

statute has been declared unconstitutional and the orders vacated. The orders were in place at a 

time in the past. They adjusted legal rights at that time. Even in proceedings today—after the 

statute has been declared unconstitutional and the orders vacated—the orders continue to have 
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potential legal effect because they tell us what the legal landscape looked like in the past. 

Similarly, the reality that there was court-ordered community supervision in E.H.’s case is not 

something we’re obliged to pretend isn’t true. Just as E.H.’s probation officer could use the 

vacated court order to refute a claim that “there was no legal warrant for the officer’s actions,” the 

State can use the order in an expunction proceeding to refute E.H.’s claim that “there was no courtordered community supervision.”

As support for the notion that judicial declarations of a statute’s unconstitutionality 

eviscerate all past actions taken under the statute, the Court cites several cases in which convictions 

for online solicitation of a minor were vacated after Ex parte Lo. The very existence of such cases 

demonstrates a flaw in the Court’s thinking. The declaration of the statute’s unconstitutionality in 

Ex parte Lo did not exonerate anyone other than Mr. Lo. Similarly situated inmates were not 

released the next day. Had they been, their prison guards would have been in violation of orders 

requiring their imprisonment. Those orders did not vanish because the statute was declared 

unconstitutional. Each order had to be separately challenged and vacated, and the orders remained 

binding until vacated.2 Even once vacated, these orders did not cease to have ever existed under a 

new “legal reality.” Such orders cannot be enforced in the future, but they existed and were 

enforceable in the past. If a statute requires us to decide whether an order was in effect in the 

2 There is disagreement on the Court of Criminal Appeals as to whether the online-solicitation statute’s 

violation of the First Amendment’s overbreadth doctrine requires vacatur of all convictions under the statute, much 

less retroactive erasure from history of all orders and judgments issued pursuant to the statute. See Ex parte Fournier, 

473 S.W.3d 789, 805 (Tex. Crim. App. 2015) (Yeary, J., joined by Keller, C.J., dissenting) (“Applicants today have 

made no showing that the statute that we struck down in Lo was unconstitutional as it applied to their conduct. Without 

such a showing, I am reluctant to extend to them the benefit of a retroactive application of Ex parte Lo.”); Ex parte

Lester, No. WR–88,227–01, 2018 WL 1736686, at *1 (Tex. Crim. App. Apr. 11, 2018) (Yeary, J., concurring) 

(disagreeing “with the Court’s decision to grant relief on that basis [because] the applicant should first demonstrate 

that the statute was applied unconstitutionally in his case”).
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past—whether “there was” such an order—we must of course acknowledge that “there was” and 

that it affected legal rights in the past. Similarly, when the Legislature asks whether “there was no

court-ordered community supervision under Chapter 42A for the offense,” we must answer 

truthfully. No valid legal principle permits a court to do otherwise.

Next, the Court concludes that there cannot have been community supervision “for the 

offense” because “no ‘offense’ ever occurred.” Ante at __. No offense occurred, the Court argues, 

because the statute E.H. violated has been judicially voided and must be treated as having never 

existed. This Court previously rejected that view: 

[N]either the Supreme Court in Obergefell nor the Fifth Circuit in De Leon “struck 

down” any Texas law. When a court declares a law unconstitutional, the law 

remains in place unless and until the body that enacted it repeals it, even though the 

government may no longer constitutionally enforce it.

Pidgeon v. Turner, 538 S.W.3d 73, 88 n.21 (Tex. 2017) (holding that Texas’s traditional marriage 

laws may retain some legal effect despite Obergefell v. Hodges, 574 U.S. 1118 (2015)). Although 

lawyers and judges frequently speak of courts “striking down” or “nullifying” statutes, more 

careful consideration of the matter exposes the deficiency of this colloquial rhetoric of judicial 

supremacy. Courts are not legislatures. The Texas Constitution reserves the law-making and lawrescinding powers to the Legislature, and it prohibits the judiciary from “exercis[ing] any power 

properly attached to either of the other[] [branches].” Tex. Const. art. II, § 1. “The power of 

judicial review . . . permits a court to enjoin executive officials from taking steps to enforce a 

statute . . . . But the statute continues to exist, even after a court opines that it violates the 

Constitution . . . .” Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936

(2018); see also Winsness v. Yocom, 433 F.3d 727, 728 (10th Cir. 2006) (McConnell, J.) (“There 

is no procedure in American law for courts or other agencies of government—other than the 
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legislature itself—to purge from the statute books, laws that conflict with the Constitution as

interpreted by the courts.”).

3

E.H. pleaded guilty to the offense of online solicitation of a minor under the version of the 

statute then in existence. Ex parte Lo later rendered this offense unenforceable, and the Legislature 

responded by amending the statute. But to say E.H. did not serve his community supervision “for 

the offense” is to deny reality, replacing it with a manufactured “legal reality” without any warrant 

in the statute for doing so. The offense was on the books. E.H. was arrested and pleaded guilty to 

it. A court ordered him to serve community supervision “for the offense.” That the offense was 

later declared unconstitutional does not mean E.H. didn’t serve community supervision for it. If 

he didn’t serve community supervision for the online-solicitation offense, what was he doing all 

that time? As with the term “court-ordered,” the Court’s attempt to make the words “for the 

offense” mean “for an offense that is not later determined to be unconstitutional” is like squeezing 

blood from a rock. That just isn’t what the statute says. It says E.H. must show “there was no 

court-ordered community supervision under Chapter 42A for the offense.” E.H. cannot make this 

3 Judicial declarations of a statute’s unconstitutionality are not immutable. Judges can change their minds, 

and a court’s membership can change. A statute declared unconstitutional today can be reconsidered tomorrow. Such 

reconsideration would be impossible, however, if the Court is right that the statute must be treated as having never 

existed once a court declares it unconstitutional. There is nothing left to reconsider if the statute is “void ab initio” 

for all purposes. But of course courts can and do reconsider their prior holdings. In fact, one member of the Court 

that decided Ex parte Lo regularly calls for its reconsideration. E.g., Ex parte Chavez, 542 S.W.3d 583 (Tex. Crim. 

App. 2018) (Yeary, J., dissenting) (“Once again, the Court today grants post-conviction relief to an applicant whose 

conduct, as I see it, fails to even remotely constitute protected speech. . . . I believe that the Court should reconsider 

whether [Ex parte Lo] was decided correctly.”). If this judge convinced four of his colleagues, Ex parte Lo would be 

overturned. What then? Would all the orders and judgments the Court says vanished when Lo was decided spring 

back into existence? Would convictions vacated because of Lo spring back to life? Or is it a one-way ratchet, such 

that all acts taken pursuant to the statute vanish when the statute is declared unconstitutional but do not reappear if the 

declaration is overturned? Presumably, the Court would agree that if Ex parte Lo were overturned, another petitioner 

in E.H.’s shoes would suddenly not be entitled to expunction. Thus, even though both served identical “court-ordered 

community supervision under Chapter 42A for the offense,” E.H. would get expunction and the second petitioner 

would not. The expunction statute contains no basis for such a distinction.
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showing, because he pleaded guilty to the offense of online solicitation of a minor and served 

community supervision for it. That the statute was declared unconstitutional has nothing to do 

with whether those events occurred. They did, so E.H. is not entitled to expunction.

Finally, if the Court were right that there is no “offense” in cases like E.H.’s, it is not clear 

what this would mean for chapter 55.01, which uses the word “offense” twenty-two times. If the 

unconstitutionality of a criminal statute means we must act as if there was never any “offense” to 

begin with, then the statute is reduced to rubble in such cases. It is difficult to imagine it could 

still be applied at all. Perhaps that is the true import of the Court’s decision: Once the underlying 

statute is declared unconstitutional, all previously convicted persons are entitled to expunction. If 

none of them can be acknowledged to have ever been arrested for an “offense,” then why would 

they not be automatically entitled to expunction? The mere existence of the paperwork in 

government files acknowledges the offense occurred, which is contrary to the Court’s “legal 

reality” that “no offense ever occurred.” The only way to match the real world with the new “legal 

reality” would be to expunge the records. The Court does not explicitly go that far, but I fail to 

see how its logic does not.

* * *

Petitioners seek expunction in order to begin life anew, as if their legal trouble never 

happened. Where the Legislature has authorized it, expunction enables many people to do that. 

As I understand the statute, the Legislature has not entitled E.H. to expunction because he pleaded 

guilty and served community supervision for the offense. 

One irony of today’s decision is that, in order to conclude that E.H. is entitled to 

expunction, the Court must act as if E.H. never committed an offense and never served community 
13

supervision. In other words, E.H. gets expunction because the Court believes it cannot 

acknowledge the existence of the very things he wants expunged. That is not how the statute 

works. E.H. must prove he qualifies for expunction before he becomes entitled to be treated as if 

his offense never happened. 

More importantly, the Court’s decision misunderstands what it means to declare a statute 

unconstitutional. This mistake could have serious consequences beyond the narrow context of 

expunction. I respectfully dissent.

__________________________________

James D. Blacklock

Justice

OPINION DELIVERED: May 15, 2020