Opinion issued December 28, 2018.
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00420-CV
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TEXAS EDUCATION AGENCY, Appellant
V.
S.E.H., Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 15-DCV-227070
DISSENTING OPINION ON EN BANC RECONSIDERATION
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).
After 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
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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).
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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.
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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
Article 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
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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
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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 (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. However, 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
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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.—
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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.
Russell Lloyd
Justice
The panel consisted of Chief Justice Radack and Justices Brown and Lloyd.
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.
Justice Lloyd, dissenting.
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Texas Education Agency v. S.E.H.
Combined Opinion