Ex parte E.H.

Decision Date16 August 2018
Docket NumberNO. 02-17-00419-CV,02-17-00419-CV
Citation582 S.W.3d 445
Parties EX PARTE E.H.
CourtTexas Court of Appeals

Mark W. Bennett, for Appellee.

Jeanine C. Hudson, for Appellant.



I. Introduction

The remedy of expunction allows a person who has been arrested for the commission of an offense to have all information about the arrest removed from governmental entities' and officials' records if he or she meets the requirements of article 55.01 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 55.01 (West 2018) ; S.J. v. State , 438 S.W.3d 838, 841 (Tex. App.—Fort Worth 2014, no pet.). In a single issue in this restricted appeal of an order granting the expunction of E.H.’s arrest records, see Tex. R. App. P. 30, Appellant Texas Department of Public Safety (DPS) argues that the trial court misinterpreted the expunction statute. See Tex. Code Crim. Proc. Ann. art. 55.02, § 3(a) (West 2018) (providing that an agency protesting an expunction "may appeal the court’s decision in the same manner as in other civil cases").

DPS contends that E.H. was not entitled to have his arrest record expunged after he actually served deferred adjudication community supervision, even though the statute under which E.H. was sentenced was subsequently declared facially unconstitutional, leading to a declaration by the trial court that the deferred adjudication order was void and to dismissal by the trial court of E.H.’s indictment upon the granting of his application for writ of habeas corpus. We dismiss the appeal.

II. Background

In August 2007, E.H. was indicted in cause number F-2007-1770-B for two counts of the felony offense of online solicitation of a minor pursuant to former penal code section 33.021(b). See Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, 2007 Tex. Gen. Laws 1167, 1167–68. Less than a year later, he pleaded guilty to both counts in exchange for five years' deferred adjudication community supervision and a $2,000 fine. In May 2013, after E.H.’s successful completion of community supervision, he was discharged.

Within months of E.H.’s discharge from community supervision, the court of criminal appeals struck down former penal code section 33.021(b) as facially unconstitutional. See Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013) (holding that then- penal code section 33.021(b) was 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). Almost three years later, the trial court granted E.H.’s application for writ of habeas corpus based on the holding in Lo . In its August 25, 2016 order granting habeas corpus relief, the trial court expressly found that Lo applied to E.H.’s case, declared void the order of deferred adjudication, and dismissed the indictment against E.H.

The order directed the trial court clerk to send a signed copy of the order to E.H.’s counsel, the director of the Denton County Community Supervision and Corrections Department, and the Denton County District Attorney’s Office. E.H.’s counsel and the assistant district attorney both signed the order as "[a]pproved as to form and content."

E.H. then filed a five-page petition for expunction. On March 15, 2017, the court administrator set the matter for a hearing on May 5, 2017. DPS filed an answer, generally denying the allegations in E.H.’s petition and attaching copies of E.H.’s indictment, order of deferred adjudication, and discharge order. E.H. responded with a brief in support of expunction, and DPS filed a supplemental answer. On June 7, 2017, E.H. replied with a second brief in support of his expunction petition.

Following the hearing, the trial court issued the order for expunction of records after "consider[ing] the pleadings and other documents on file, the evidence presented, and the arguments of counsel." In its seven-page expunction order signed on June 12, 2017, the trial judge handwrote that the petition for expunction was heard three days earlier, on June 9, 2017. E.H.’s attorney signed the order approving it as to form and substance. There is no indication from the record which parties were present at the hearing.

On June 15, 2017, the Denton County District Clerk faxed a notification of expunction order to DPS. However, the notification states that the expunction order was granted on May 12, 2017, and the fax receipt reflects that only two pages were sent, without any indication of which two pages, if any, of the seven-page expunction order were included. The Denton County District Clerk sent another fax to DPS on July 12, 2017; this fax receipt reflected that nine pages were sent but did not otherwise identify the content of those nine pages.

On November 30, 2017, DPS filed a notice of restricted appeal.

III. Restricted Appeal

A party can prevail in a restricted appeal only if (1) it filed notice of the restricted appeal within six months after the order or judgment was signed, (2) it was a party to the underlying lawsuit, (3) it did not participate in the hearing that resulted in the order or judgment complained of and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. See Tex. R. App. P. 26.1(c), 30; Ins. Co. of State of Pa. v. Lejeune , 297 S.W.3d 254, 255 (Tex. 2009). These requirements are jurisdictional and will cut off a party’s right to seek relief by way of a restricted appeal if they are not met. Ex parte K.K. , No. 02-17-00158-CV, 2018 WL 1324696, at *2 (Tex. App.—Fort Worth Mar. 15, 2018, no pet.) (mem. op.) (citing Lab. Corp. v. Mid-Town Surgical Ctr., Inc. , 16 S.W.3d 527, 528–29 (Tex. App.—Dallas 2000, no pet.) ). E.H. does not challenge the first two elements.

A. Nonparticipation

E.H. argues that DPS cannot maintain this restricted appeal because the record does not show that it did not participate in person or through counsel in the trial court, and he asserts that DPS in fact participated.1 While E.H. concedes that the mere filing of an answer does not constitute participation in the "actual trial" for restricted appeal purposes, he argues that DPS did not "merely file an answer" but rather filed a 16-page original answer and general denial and a 12-page supplemental answer. But an answer from DPS—regardless of its length—does not constitute participation in the hearing that resulted in the expunction order and thus does not bar DPS from pursuing this restricted appeal. See id. at *2 n.6.

Further, only E.H.’s counsel signed the order, and there is a line drawn through the space provided for the Denton County Criminal District Attorney’s signature. No signature spaces were provided for any of the remaining agencies, including DPS. Nothing on the face of the order indicates who attended the June 9 hearing or who was present when the trial judge signed the order on June 12. The docket sheet contained in the clerk’s record of this case has no entries. And the record fails to reflect that DPS was notified that the trial court would hear the matter on June 9. See Ex parte B.M. , No. 02-14-00336-CV, 2015 WL 3421979, at *1 & n.3 (Tex. App.—Fort Worth May 28, 2015, no pet.) (mem. op.) (observing, in review of whether DPS participated in the hearing, that, among other things, the record failed to reflect that DPS was notified of the hearing date’s change).

We are to liberally construe the nonparticipation requirement in favor of the right to appeal. See Pike-Grant v. Grant , 447 S.W.3d 884, 886 (Tex. 2014) ("For over half a century, we have required courts to liberally construe the nonparticipation requirement for restricted appeals in favor of the right to appeal."). Applying this standard and based on this record, we conclude that DPS has adequately shown nonparticipation. We base this conclusion upon several observations. First, the record reflects that although the June 12 expunction order was seven pages, the notification of expunction order faxed to DPS from the Denton County District Clerk—on June 15, 2017—contained only two pages. Second, the notification incorrectly stated that the expunction order had been granted on May 12, 2017, thus DPS could have reasonably concluded that its 30-day period to file postjudgment motions or a notice of appeal had already expired and that restricted appeal was its only option. See Tex. R. App. P. 26.1 ; Tex. R. Civ. P. 306a, 329b. Third, the second fax receipt from the Denton County District Clerk, dated July 12, 2017—the last day that DPS could have actually timely filed a postjudgment motion or notice of appeal—reflects that nine pages of something were faxed to DPS at 1:58 p.m, but the confirmation itself just states "Your fax has been successfully sent to the Texas Department of Public Safety...."

B. No Error on the Face of this Record

We review a trial court’s ruling on a petition for expunction for an abuse of discretion, but to the extent that the ruling turns on a question of law, we review it de novo because the trial court has no discretion in determining what the law is or in applying the law to the facts. K.K. , 2018 WL 1324696, at *3. Further, when construing a statute, our primary objective is to ascertain and give effect to the legislature’s intent. S.J. , 438 S.W.3d at 843.

The traditional and primary purpose of the expunction statute is to remove records of wrongful arrests. Id. at 841. Generally, an arrest is not wrongful when a defendant pleads guilty or nolo contendere to an offense arising from the arrest and, as required by the code of criminal procedure, a court finds that evidence substantiates the defendant’s guilt while deferring a formal adjudication of guilt. Id. at 841–42. And because a petitioner’s right to expunction is purely a matter of statutory privilege, he bears the burden to show that all of the required...

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1 cases
  • Ex parte E.H.
    • United States
    • Texas Supreme Court
    • 15 d5 Maio d5 2020
    ...because the criminal court had entered an order placing him on deferred adjudication community supervision. Ex parte E.H. , 582 S.W.3d 445, 446–47 (Tex. App.—Fort Worth 2018). The court of appeals disagreed, holding that E.H. is entitled to expunction because the statute under which he was ......

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