Ex parte E.H.

Decision Date15 May 2020
Docket NumberNo. 18-0932,18-0932
Parties EX PARTE E.H.
CourtTexas Supreme Court

Mark W. Bennett, for Respondent E.H.

Jeffrey C. Mateer, Bill Davis, Austin, W. Kenneth Paxton Jr., Atty. Gen., Mia Gisele Settle-Vinson, Houston, Kyle D. Hawkins, Jeanine C. Hudson, for Petitioner Texas Department of Public Safety.

Justice Boyd delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, Justice Lehrmann, Justice Devine, Justice Busby, and Justice Bland joined.

The Texas Department of Public Safety filed this restricted appeal from a trial-court order granting E.H.'s petition for expunction of arrest records under article 55.01 of the Code of Criminal Procedure. The court of appeals agreed with the trial court and dismissed the Department's appeal, holding that the lack of any error on the face of the record deprived the court of jurisdiction. We agree with both courts that E.H. qualifies for expunction, but we disagree with the court of appeals' conclusion that the facial-error requirement is jurisdictional. We therefore reverse the court of appeals' judgment and reinstate the trial court's judgment.

I.Background

In August 2007, E.H. was indicted on two counts of felony online solicitation of a minor under former penal code section 33.021(b).1 E.H. pleaded guilty to both counts in exchange for five years' deferred adjudication community supervision and a $2,000 fine. See TEX. CODE CRIM. PROC. art. 42A.101 –.111 (addressing deferred adjudication community supervision). E.H. completed his community supervision in May 2013. Five months later, the Court of Criminal Appeals declared former section 33.021(b) facially unconstitutional because it prohibited constitutionally protected speech and was not narrowly drawn to impose the least restrictive means to achieve the government's compelling interest in protecting children from sexual abuse. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).

After Lo , E.H. applied for a writ of habeas corpus seeking relief from the order that placed him on community supervision. See TEX. CODE CRIM. PROC. art. 11.072 (addressing procedure for habeas applications in community-supervision cases).2 The trial court granted E.H.'s application, dismissed the indictment against him, and declared the community-supervision order void. E.H. then filed a petition for expunction, which the court granted.

Nearly six months after the court granted expunction, the Department filed this restricted appeal arguing that E.H. does not qualify for expunction 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 indicted and the indictment itself were void and the community-supervision conditions imposed on him "disappeared as a result of the trial court's grant of habeas corpus relief." Id. at 453–54. Finding no error apparent on the face of the record, the court dismissed the Department's restricted appeal for want of jurisdiction. Id. at 454. We granted the Department's petition for review.

II.Expunction

We agree with the trial court and the court of appeals that E.H. established his eligibility for expunction of his arrest records. An expunction order requires governmental agencies to return, remove, delete, or destroy all records of a person's arrest and generally permits the person to deny the occurrence of the arrest and the existence of the expunction order. See TEX. CODE CRIM. PROC. art. 55.02 –.03. Although the expunction statute appears within the code of criminal procedure, an expunction proceeding is civil in nature. State v. T.S.N. , 547 S.W.3d 617, 619 (Tex. 2018). Because expunction is a statutory privilege and not a constitutional or common law right, In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014), courts must enforce the statutory requirements and "cannot add equitable or practical exceptions ... that the legislature did not see fit to enact," In re Geomet Recycling LLC , 578 S.W.3d 82, 87 (Tex. 2019). We review a trial court's ruling on an expunction petition under an abuse-of-discretion standard. But to the extent the ruling depends on a question of law, we review it de novo because a "trial court has no ‘discretion’ in determining what the law is or applying the law to the facts." Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992).

At the time of E.H.'s expunction hearing in 2017, article 55.01(a)(2) provided that a person who is arrested but not tried for an offense3 is entitled to an expunction order if

(1) "the person has been released";
(2) "the charge, if any, has not resulted in a final conviction and is no longer pending"; and
(3) "there was no court-ordered community supervision under Chapter 42A for the offense, unless the offense is a Class C misdemeanor";

"provided that"

(4) the indictment or information charging the person with the offense either
a. was not timely presented within particular deadlines following the arrest, or
b. was timely presented but was dismissed or quashed for particular reasons, including that it "was void"; or
(5) "prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired."

Act of May 29, 2015, 85th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Gen. Laws 2321, 2373 (amended 2017, 2019) (current version at TEX. CODE CRIM. PROC. art. 55.01(a)(2) ).4

The Department argues that E.H. cannot satisfy the statute's third requirement—that "there was no court-ordered community supervision under Chapter 42A for the offense"—because the criminal court had, in fact, ordered E.H. to community supervision. E.H. does not dispute that the criminal court entered an order placing him on community supervision under chapter 42A for the offense, but he argues that order was void from the time it was entered because the statute under which he was indicted was unconstitutional. The Department does not dispute that the order was void, but argues that, nevertheless, as a matter of historical fact, "there was court-ordered community supervision" for E.H.'s offense. See Ex parte Fournier , 473 S.W.3d 789, 793 (Tex. Crim. App. 2015) (holding that persons convicted under former section 33.021(b) could not establish "actual innocence" because the "conduct on which the criminal prosecution was based still exists as a matter of historical fact").5 We must decide whether the historical reality that a court ordered E.H. to community supervision disqualifies him for expunction when, as a legal reality, that order was a nullity from inception.6

The Department offers several arguments in support of its proposed construction. It notes that to obtain habeas relief from a community-supervision order, as E.H. did here, the applicant "must be, or have been, on community supervision." TEX. CODE CRIM. PROC. art. 11.072 § 2(b). By requesting and obtaining habeas relief, the Department reasons, E.H. conceded that he had been on community supervision and thus that "there was court-ordered community supervision for his offense." E.H. concedes that he had been on community supervision, but the very purpose of his request for habeas relief under article 11.072 was to challenge the legal validity of the order that placed him there. See id. (noting that the habeas application "must challenge the legal validity" of the conviction, the order imposing community supervision, or the conditions of community supervision). Article 11.072, in other words, requires the historical reality of community supervision as a basis for challenging the legal validity of the order that imposed it. But unlike article 11.072, he argues, the expunction statute ties the legal reality to the historical reality by requiring that "there was no court-ordered community supervision." Id. art. 55.01(a)(2) (emphasis added). We agree with E.H. that article 11.072 does not support the Department's proposed construction of article 55.01(a)(2).

The Department also notes that the expunction statute does not expressly except community-supervision orders that are based on offenses charged under an unconstitutional statute or are otherwise null and void. Instead, it turns simply on whether "there was" court-ordered community supervision. Id. Citing numerous other Texas statutes,7 the Department argues that the phrase "there was" necessarily refers to factual as opposed to legal realities. But some of those statutes appear to disprove the Department's point. For example, one statute requires courts to vacate an arbitration award if "there was no agreement to arbitrate." TEX. CIV. PRAC. & REM. CODE § 171.088(a)(4). A second entitles a person to habeas relief if the person's petition states that "there was no sufficient cause for requiring bail." TEX. CODE CRIM. PROC. art. 11.24. And a third enables a person to avoid suspension of the person's driver's license by showing that "there was a motor vehicle liability insurance policy covering the motor vehicle." TEX. TRANSP. CODE § 601.333(a)(1). Although we need not and do not decide the issues here, we could certainly question the Department's assumption that these statutes would be satisfied even if the "agreement to arbitrate" was illegal or otherwise void, the petition challenging sufficient cause for bail had been stricken on legal grounds, or the liability insurance policy was for some reason legally invalid and unenforceable.8 In any event, it is one thing to require that "there was" something that may be completely factual in nature, such as "an emergency," "good cause," or "an error in payment," but quite another to require that "there was" something "court-ordered," which necessarily raises both factual and legal implications. In short, we cannot agree with the Department that...

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