J.C. v. Harris Cnty. Dist. Attorney's Office, 01-20-00686-CV

• Court: Court of Appeals of Texas
• Writing for the Court: Amparo Guerra Justice
• Parties: J.C., Appellant v. HARRIS COUNTY DISTRICT ATTORNEY'S OFFICE, THEUNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, THEUNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,AND THE UNIVERSITY OF TEXAS POLICE AT HOUSTON, Appellees
• Docket Number: 01-20-00686-CV
• Decision Date: 23 August 2022

J.C., Appellant
v.
HARRIS COUNTY DISTRICT ATTORNEY'S OFFICE, THEUNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER, THEUNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON,AND THE UNIVERSITY OF TEXAS POLICE AT HOUSTON, Appellees

No. 01-20-00686-CV

Court of Appeals of Texas, First District

August 23, 2022

On Appeal from the 269th District Court Harris County, Texas Trial Court Case No. 2020-43907

Panel consists of Justices Landau, Guerra, and Farris.

OPINION

Amparo Guerra Justice

J.C. appeals from the trial court's order denying his petition for expunction of records related to his November 16, 2018 arrest for misdemeanor harassment under Texas Penal Code Section 42.07(a)(7). In one issue on appeal, J.C. contends that

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because the information was quashed and dismissed after the trial court found that Section 42.07(a)(7) is facially unconstitutional, the charge was no longer pending and he is entitled to expunction of all records relating to this arrest under Article 55.01 of the Texas Code of Criminal Procedure. We affirm.

Background

On November 16, 2018, J.C., an M.D. and Ph.D. student at M.D. Anderson Cancer Center UTHealth Graduate School of Biomedical Sciences, was arrested and charged with misdemeanor harassment, in violation of Section 42.07(a)(7) of the Texas Penal Code (the "underlying harassment case").^[1] The information alleged that J.C., "with intent to harass, annoy, alarm, torment and embarrass another, namely [complainant], sen[t] repeated electronic communications, to-wit: electronic mail and instant message[s] in a manner reasonably likely to harass, annoy, alarm, abuse, torment and embarrass."

J.C. moved to quash the information and filed an application for writ of habeas corpus, challenging the constitutionality of Section 42.07(a)(7) of the Texas Penal Code as overbroad and vague. On April 17, 2019, the county court accepted J.C.'s

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facial challenge to Section 42.07(a)(7), granted J.C.'s application for writ of habeas corpus, and dismissed and quashed the information.

Two days later, on April 19, 2019, the State filed a notice of appeal from the county court's order dismissing the information in the underlying harassment case pursuant to Article 44.01(a)(1) of the Texas Code of Criminal Procedure.^[2] On July 23, 2020, while the State's appeal in the underlying harassment case was pending in the Fourteenth Court of Appeals, J.C. filed the petition for expunction at issue here. In his petition, J.C. alleged that he was entitled to expunction of "all records and files relating to his November 16, 2018 arrest for Harassing Communication" because: (1) the information was dismissed, (2) the charge has not resulted in a final conviction, (3) the charge is no longer pending, and (4) there was no court-ordered community supervision under Chapter 42A of the Texas Code of Criminal Procedure.

The Harris County District Attorney's Office and the University of Texas entities^[3] (collectively the "Appellees") argued that the order dismissing the information in the underlying harassment case was not final because the State's

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appeal from that order was still pending and, therefore, the charge was still pending for the purposes of the expunction statute.

Following a hearing on J.C.'s expunction petition on September 25, 2020, the trial court found that J.C. "failed to meet his burden for expunction" and denied J.C.'s petition. J.C. appealed.

After J.C. filed his notice of appeal but before he filed his brief in this case, the Fourteenth Court of Appeals issued its opinion in the State's appeal in the underlying harassment case. See State v. Chen, 615 S.W.3d 376 (Tex. App.- Houston [14th Dist.] 2020, pet. filed), abrogated by Ex parte Barton, No. PD-1123-19, 2022 WL 1021061 (Tex. Crim. App. Apr. 6, 2022). In its opinion, the Fourteenth Court of Appeals held that Section 42.07(a)(7) "goes well beyond a lawful proscription of intolerably invasive conduct and instead reaches a substantial amount of speech protected by the First Amendment," and that "the scope of the statute prohibits or chills a substantial amount of protected speech, rendering it unconstitutionally overbroad." Chen, 615 S.W.3d at 383-85.^[4] The Fourteenth Court

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of Appeals therefore affirmed the county court's order dismissing the information and habeas-corpus judgment discharging J.C. Id. at 385. Thereafter, the State filed a petition for discretionary review with the Texas Court of Criminal Appeals, which is still pending.

Although the State's petition for discretionary review is still pending in the underlying harassment case, the Texas Court of Criminal Appeals recently issued two opinions upholding the constitutionality of Section 42.07(a)(7). See Ex parte Barton, 2022 WL 1021061, at *8; Ex parte Sanders, No. PD-0469-19, 2022 WL 1021055, at *14 (Tex. Crim. App. Apr. 6, 2022). In these cases, the Court of Criminal Appeals held that "on its face, [Section] 42.07(a)(7), the electronic

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harassment statute, proscribes non-speech conduct that does not implicate the protections of the First Amendment, although elements of speech may be employed to commit the offense." Ex parte Sanders, 2022 WL 1021055, at *14; see also Ex parte Barton, 2022 WL 1021061, at *8 ("Since [Section] 42.07(a)(7) does not regulate speech, and therefore does not implicate the free-speech guarantee of the First Amendment, the statute is not susceptible to an overbreadth challenge. . . . As a regulation of non-speech conduct, [Section] 42.07(a)(7) is not facially unconstitutional because it is rationally related to a legitimate governmental interest.").

Expunction

In his sole issue on appeal, J.C. contends that the misdemeanor harassment charge was no longer pending for purposes of the expunction statute once the county court dismissed the information, regardless of whether the State's appeal from that order was still pending. Thus, he asserts, he was entitled to expunction of his records relating to that arrest.

A. Standard of Review

A trial court's expunction order is reviewed for abuse of discretion, but the meaning of a statute is a question of law reviewed de novo. Ex parte R.P.G.P., 623 S.W.3d 313, 317 (Tex. 2021). Statutes are analyzed "'as a cohesive, contextual whole' with the goal of effectuating the Legislature's intent," which we presume is

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a "just and reasonable result." Id. (quoting State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018)). Unless the context or the statute instructs otherwise, our analysis begins with the plain language of the statute read in context, not in isolation. Id. While "it is not for courts to undertake to make laws 'better' by reading language into them," we must make logical inferences when necessary "to effect clear legislative intent or avoid an absurd or nonsensical result that the Legislature could not have intended." Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam) (quoting Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n, 518 S.W.3d 318, 338 (Tex. 2017)). Finally, "courts are to construe statutes so as to harmonize with other relevant laws, if possible." La Sara Grain Co. v. First Nat'l Bank, 673 S.W.2d 558, 565 (Tex. 1984).

B. Applicable Law

Expunction is a civil remedy governed by Article 55.01 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. art. 55.01. Although the expunction statute appears in the Code of Criminal Procedure, an expunction proceeding is civil in nature and the petitioner carries the burden of proving compliance with the statutory requirements. Ex parte Enger, 512 S.W.3d 912, 914 (Tex. App.-Houston [14th Dist.] 2016, no pet.). A person is not entitled to expunction until all of the statutory conditions are met. T.S.N., 547 S.W.3d at 620.

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An expunction order allows the person arrested to "deny the occurrence of the arrest and [deny] the existence of the expunction order [except in a criminal proceeding]" and prohibits governmental and private entities named in the order from releasing, maintaining, disseminating, or using the expunged records and files "for any purpose." Ex parte R.P.G.P., 623 S.W.3d at 316 (quoting Tex. Code Crim. Proc. art. 55.03). An expunction order also requires governmental agencies to return, remove, delete, or destroy all records of a person's arrest. Ex parte E.H., 602 S.W.3d 486, 489 (Tex. 2020); see also Tex. Code Crim. Proc. arts. 55.02-.03. Because the remedy is a privilege defined by the Legislature, and not a constitutional or common-law right, the statutory requirements are mandatory and exclusive and cannot be equitably expanded by...