PD-0474-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

LAWRENCE DONOVAN

Petitioner

v.

STATE OF TEXAS

Respondent

On Appeal from the 

Court of Appeals for the Second District

Fort Worth Texas

Cause No. 02-11-00033-CR

MOTION FOR REHEARING

John H. Cayce, Jr.

State Bar No. 04035650

john.cayce@kellyhart.com

KELLY HART & HALLMAN LLP 

201 Main Street, Suite 2500

Fort Worth, Texas 76102

Telephone: (817) 332-2500

Telecopier: (817) 878-9280

ATTORNEY FOR PETITIONER

ORAL ARGUMENT REQUESTED

PD-0474-14

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 7/15/2015 9:47:59 AM

Accepted 7/15/2015 10:00:20 AM

ABEL ACOSTA

CLERK
TABLE OF CONTENTS 

INDEX OF AUTHORITIES..................................................................................... ii

GROUNDS FOR REHEARING ...............................................................................1

ARGUMENT.............................................................................................................1

PRAYER FOR RELIEF ............................................................................................6

CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 79.2....................................6

CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 9.4......................................7

CERTIFICATE OF SERVICE ..................................................................................7

MOTION FOR REHEARING Page i 
INDEX OF AUTHORITIES

State Cases

Ohio v. Garry,

877 N.E.2d 755 (Ohio Ct. App. 2007)..................................................................4

State Statutes

11 DEL. CODE § 4371 (2010) .....................................................................................5

Other Authorities

Andrew L. Gates III, Comment, Arrest Records—Protecting the 

Innocent, 48 TUL. L. REV. 629, 634 (1974)..........................................................4

Fruqan Mouzon, Forgive Us Our Trespasses: The Need for Federal 

Expungement Legislation, 39 U. Mem. L. Rev. 1, 3-4 (2008).............................4

MOTION FOR REHEARING Page ii
GROUNDS FOR REHEARING

On July 1, 2015, the Court issued its unanimous Opinion affirming the 

judgment of the court of appeals. (Copy attached). The Opinion effectively grants 

trial courts the unbridled discretion to ignore the binding legal effect of a final 

expunction order in revoking a condition of community supervision. In so doing, 

the Opinion will create uncertainty in the bench and bar about the legal rights of 

persons who have had their records expunged, and will jeopardize the protections 

Texas’ expungement laws were designed to afford individuals with expunged 

records. This will have a deleterious effect on society as whole by undermining 

one of the primary policy reasons for expunctions—to enable persons with arrest 

or conviction records to integrate back into society and live normal, happy lives. 

The Motion for Rehearing (“the Motion”) should be granted to address these 

serious public and jurisprudential concerns. 

ARGUMENT

Mr. Donovan’s probation for injury to a child, a non-sex offense, was 

revoked after he refused to “fully” participate in a sex-offender treatment program 

in which the treatment provider pressured him to admit to the commission of a sex 

offense that had earlier been the subject of a “not guilty” judgment and subsequent 

expunction order.1

 When Mr. Donovan and his attorneys protested that the 

1

 No reason was ever given to Mr. Donovan or his counsel for adding the sex-offender 

treatment condition to his probation. 

MOTION FOR REHEARING Page 1

 
treatment provider was violating explicit language of the expunction statute by 

requiring discussion of the expunged sex offense during group counseling sessions, 

the trial judge told the treatment provider that Mr. Donovan would not be required 

to “admit” the expunged offense during the group therapy meetings.2 RR.II: 14, 

46. 

Of course, Mr. Donovan had every reason to believe the trial judge’s 

instructions would be honored and that he could safely rely on her instructions in 

refusing to discuss the expunged offense at future meetings. Indeed, had the trial 

judge informed Mr. Donovan when she added the sex-offender treatment condition 

to his probation that he would be required to discuss the expunged offense during 

treatment, he would have never acquiesced to the condition being added to his 

probation in the first place.3

Despite the trial judge’s instructions, however, the treatment provider 

continued to insist on Mr. Donovan’s admission to the expunged sex offense. 

RR.II: 56. Moreover, at the revocation hearing, the trial judge did an “about 

face”—she reversed her earlier directive that the expunction order should be 

honored, and announced that she now determined the order was “illegal” and 

“baseless.” RR.III: 8-9. 

2

 The record is devoid of any notice to Mr. Donovan’s defense counsel that the 

expunction order would be ignored by the treatment provider, or that Mr. Donovan would 

be required to admit to a sex offense in order to complete the program.

3

 This became abundantly clear when Mr. Donovan later objected to the condition and 

requested that it be rescinded.

MOTION FOR REHEARING Page 2

 
Contrary to the Court’s opinion, this Catch-22 situation resulting in the 

revocation of Mr. Donovan’s probation was not “within [Mr. Donovan’s] control.” 

Op. at 10. By allowing the revocation judgment to stand under these egregious set 

of facts, the Court has effectively condoned the direct violation of Texas 

expunction law by a trial court. This will foster untold confusion and mischief in 

the Texas criminal justice system. 

For example, assume that a person who was found not guilty of an 

intoxication-related offense obtains an expunction order. If she is later placed on 

probation in an unrelated case, under the Court’s Opinion, the treatment provider 

could ask her to admit to the intoxication offense as part of a treatment program 

with impunity. If she did not admit to the expunged offense, her probation could 

be lawfully revoked by the trial judge. This is just one of a myriad of potential 

situations where the legal protections historically afforded by an expunction order 

could be disregarded in a court of law under the Court’s opinion, to the detriment 

of innocent persons who rightfully rely on those protections. 

The Court’s decision also undermines the public policy behind Texas’ 

expunction law. Expunctions serve an important purpose in society, especially in 

cases like this where the individual was adjudged “not guilty” of the expunged 

offense. As one scholar has noted with regard to ex-offenders (which 

Mr. Donovan is not):

MOTION FOR REHEARING Page 3
The mere existence of a criminal history can produce assumptions of 

past dishonesty and future untrustworthiness in the minds of all those 

aware of that history. Those assumptions often create substantial 

obstacles to acquiring, among other things, employment and housing. 

In addition, some ex-offenders are disqualified at least temporarily 

from obtaining federal loans or grants for post-secondary education. 

Even government programs designed to assist the poor, like food 

stamps, are unavailable to some ex-offenders, making rehabilitation 

far more arduous.4

Reintegration into society without employment or housing and without any 

chances of attaining help is, at best, unlikely. 

Persons with arrest records can suffer the same marginalizing effects 

suffered by those with criminal records.5

 Thus, the policies behind expunging 

arrest records are substantially the same as those behind expunging conviction 

records. As an Ohio appellate court wrote in 2007: 

[I]n America, people are presumed innocent unless tried and 

convicted. In this case, the defendant was tried and found not guilty, 

but continues to suffer punishment in the form of a criminal arrest 

record. This we cannot allow.6

 

Indeed, the legislature in Delaware codified a public policy similar to that which 

underlies Texas’ expungement statute:

The General Assembly finds that arrest records can be a hindrance to 

an innocent citizen’s ability to obtain employment, obtain an 

education or to obtain credit. This subchapter is intended to protect 

4

 Fruqan Mouzon, Forgive Us Our Trespasses: The Need for Federal Expungement 

Legislation, 39 U. Mem. L. Rev. 1, 3-4 (2008).

5

 See Andrew L. Gates III, Comment, Arrest Records—Protecting the Innocent, 48 TUL.

L. REV. 629, 634 (1974) (observing that “a mere arrest record has considerable potential 

for causing harm to an individual,” particularly when the person attempts to obtain a job).

6

 Ohio v. Garry, 877 N.E.2d 755 (Ohio Ct. App. 2007) (emphasis added).

MOTION FOR REHEARING Page 4

 
innocent persons from unwarranted damage which may occur as the 

result of arrest and other criminal proceedings which are unfounded or 

unproven.7

In Mr. Donovan’s case, the expunged offense was unfounded and unproven. 

The State, in fact, agreed Mr. Donovan was “not guilty” of the sex offense. Yet, 

the legal effect of the expunction was ignored by the trial judge and Mr. Donovan 

was treated, for all practical purposes, as if he had been convicted of the offense. 

As a result, not only will Mr. Donovan unjustly suffer the loss of his liberty for 

standing on his legal rights not to discuss or admit an expunged arrest record while 

on probation for another offense, but, because the revocation of his probation was 

based on his refusal to discuss or admit the expunged record, he will wrongly 

suffer the same harmful, marginalizing effects that a person with a criminal 

conviction record suffers—all as a result of the justifiable trust he placed in the 

undisputed fact that the record of the expunged offense was, in fact, expunged. 

If the Court intends expunctions to have any force and effect at all, and to 

continue to be used to protect innocent persons from unwarranted damage which 

may occur as the result of arrest and other criminal proceedings which are 

unfounded or unproven, the Motion must be granted and the Court’s opinion must 

be withdrawn.

7

 11 DEL. CODE § 4371 (2010).

MOTION FOR REHEARING Page 5

 
PRAYER FOR RELIEF

WHEREFORE, PREMISES CONSIDERED, Mr. Donovan prays that the 

Court grant this Motion for Rehearing, order briefing on this cause, and set it for 

re-submission at the earliest possible date. Moreover, upon submission and review 

of the appellate record and the briefs and arguments of counsel, Mr. Donovan 

prays that this Court reverse the trial court’s Judgment of Conviction, or 

alternatively remand the case to the Second Court of Appeals and for such further 

relief as the Court may deem appropriate.

Respectfully submitted,

/s/ John H. Cayce, Jr.

John H. Cayce, Jr.

State Bar No. 04035650

john.cayce@kellyhart.com

KELLY HART & HALLMAN LLP 

201 Main Street, Suite 2500

Fort Worth, Texas 76102

Telephone: (817) 332-2500

Telecopier: (817) 878-9280

ATTORNEY FOR PETITIONER

CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 79.2

In accordance with Tex. R. App. P. 79.2(c), I certify that this Motion for 

Rehearing that refuses Petitioner’s Petition for Discretionary Review is grounded 

only on substantial intervening circumstances or on other significant circumstances 

which are specified in the Motion. I further certify that this Motion is so grounded 

and that the Motion is made in good faith and not for delay.

/s/ John H. Cayce, Jr.

John H. Cayce, Jr.

MOTION FOR REHEARING Page 6 
CERTIFICATE OF COMPLIANCE, TEX. R. APP. P. 9.4

This petition complies with the requirements of Texas Rules of Appellate 

Procedure 9.4(3) because it has been prepared in a proportionally spaced typeface 

using “Microsoft Word 2010” in fourteen (14) point “Times New Roman” style 

font, and it contains 1,335 words, excluding the parts of the petition exempted by 

the Texas Rules of Appellate Procedure.

/s/ John H. Cayce, Jr.

John H. Cayce, Jr.

CERTIFICATE OF SERVICE

I certify that on this 15th day of July, 2015, a true and correct copy of 

the foregoing document has been delivered to the following counsel of 

record by electronic service and/or e-mail: 

Debra Windsor, Chief, Post-Conviction

Kimberley Wesley, Assistant District Attorney

TARRANT COUNTY DISTRICT ATTORNEY’S OFFICE

401 W. Belknap, Fourth Floor

Fort Worth, Texas 76196-0201

State Prosecuting Attorney

209 W. 14th Street 

Austin, Texas 78701

/s/ John H. Cayce, Jr.

John H. Cayce, Jr.

MOTION FOR REHEARING Page 7