Opinion
NO. 01-20-00686-CV
08-23-2022
J.C., Appellant v. HARRIS COUNTY DISTRICT ATTORNEY'S OFFICE, the University of Texas M.D. Anderson Cancer Center, the University of Texas Health Science Center at Houston, and the University of Texas Police at Houston, Appellees
Mark W. Bennett, Houston, for Appellant. Meagan Scott, Houston, Uriel Tuck, for Appellee Harris County District Attorney's Office. Kimberly L. Fuchs, Austin, for Appellee The University of Texas M.D. Cancer Center, The University of Texas Health Science Center at Houston, and The University of Texas Police at Houston.
Mark W. Bennett, Houston, for Appellant.
Meagan Scott, Houston, Uriel Tuck, for Appellee Harris County District Attorney's Office.
Kimberly L. Fuchs, Austin, for Appellee The University of Texas M.D. Cancer Center, The University of Texas Health Science Center at Houston, and The University of Texas Police at Houston.
Panel consists of Justices Landau, Guerra, and Farris.
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 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"). 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 facial challenge to Section 42.07(a)(7), granted J.C.’s application for writ of habeas corpus, and dismissed and quashed the information.
Section 42.07(a)(7) provides that "[a] person commits an offense if, with intent to harass, annoy, alarm, abuse, torment, or embarrass another, the person ... sends repeated electronic communications in a manner reasonably likely to harass, annoy, alarm, abuse, torment, embarrass, or offend another[.]" Tex. Penal Code § 42.07(a)(7).
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. 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.
Article 44.01(a)(1) permits the State to appeal from an order dismissing an indictment or information. Tex. Code Crim. Proc. art. 44.01(a)(1).
The Harris County District Attorney's Office and the University of Texas entities (collectively the "Appellees") argued that the order dismissing the information in the underlying harassment case was not final because the State's appeal from that order was still pending and, therefore, the charge was still pending for the purposes of the expunction statute.
The University of Texas entities include: the University of Texas M.D. Anderson Cancer Center, the University of Texas Health Science Center at Houston, and the University of Texas Police at Houston.
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, 662 S.W.3d 876 (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. The Fourteenth Court 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.
The Fourteenth Court of Appeals noted in its opinion that a number of courts of appeals to consider the constitutionality of Section 42.07(a)(7) had concluded that "since the sole intent of the electronic communications encompassed by the electronic-communication-harassment statute [Section 42.07(a)(7) ] is to invade the privacy of the recipient in an essentially intolerable manner, the statute does not reach a substantial amount of speech protected by the First Amendment." State v. Chen , 615 S.W.3d 376, 380–81 (Tex. App.—Houston [14th Dist.] 2020, pet. filed) (citing State v. Grohn , 612 S.W.3d 78 (Tex. App.—Beaumont 2020, pet. filed) ; Ex parte McDonald , 606 S.W.3d 856 (Tex. App.—Austin 2020, pet. ref'd) ; Lebo v. State , 474 S.W.3d 402 (Tex. App.—San Antonio 2015, pet ref'd) ; Ex parte Sanders , No. 07-18-00335-CR, 2019 WL 1576076 (Tex. App.—Amarillo Apr. 8, 2019) (mem. op., not designated for publication), aff'd , No. PD-0469-19, 663 S.W.3d 197 (Tex. Crim. App. Apr. 6, 2022) ; Ex parte Hinojos , No. 08-17-00077-CR, 2018 WL 6629678 (Tex. App.—El Paso Dec. 19, 2018, pet. ref'd) (not designated for publication) ; Ex parte Ogle , Nos. 03-18-00207-CR, 03-18-00208-CR, 2018 WL 3637385 (Tex. App.—Austin Aug. 1, 2018, pet. ref'd) (mem. op., not designated for publication) ; Ex parte Reece , No. 11-16-00196-CR, 2016 WL 6998930 (Tex. App.—Eastland Nov. 30, 2016, pet. ref'd) (mem. op., not designated for publication) ; Blanchard v. State , No. 03-16-00014-CR, 2016 WL 3144142 (Tex. App.—Austin June 2, 2016, pet. ref'd) (mem. op., not designated for publication) ; Duran v. State , Nos. 13-11-00205-CR, 13-11-00218-CR, 2012 WL 3612507 (Tex. App.—Corpus Christi Aug. 23, 2012, pet. ref'd) (mem. op., not designated for publication) ).
The Fourteenth Court of Appeals declined to follow the rationale of these cases, instead adopting the constitutional analysis of the Fort Worth Court of Appeals in Ex parte Barton , 586 S.W.3d 573 (Tex. App.—Fort Worth 2019) (op. on reh'g), rev'd , No. PD-1123-19, 662 S.W.3d 876 (Tex. Crim. App. Apr. 6, 2022). See Chen , 615 S.W.3d at 381–83.
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 , 662 S.W.3d at 885-86 ; Ex parte Sanders , No. PD-0469-19, 663 S.W.3d at 216 (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 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 , 663 S.W.3d at 216-17 ; see also Ex parte Barton , 662 S.W.3d at 885 ("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 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.
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 the courts. Ex parte R.P.G.P. , 623 S.W.3d at 316.
At issue here is J.C.’s asserted entitlement to an order expunging his harassment arrest records under Article 55.01(a)(2)(A)(ii)(e), which, at the time of J.C.’s expunction hearing in 2020, allowed a person arrested for commission of a felony or misdemeanor to expunge "all records and files relating to the arrest" if:
1. The person has been released from a custodial or noncustodial arrest;
2. "the charge, if any, has not resulted in a final conviction and is no longer pending";
3. "there was no court-ordered community supervision under Chapter 42A for the offense"; and
4. "an indictment or information charging the person with the commission of a misdemeanor offense based on the person's arrest ... was dismissed or quashed ... and the court finds that the indictment or information was dismissed or quashed because ... the indictment or information was void."
Act of May 26, 2015, 84th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Gen. Laws 2321, 2373 (amended 2017, 2019, 2021) (current version at TEX. CODE CRIM. PROC. art. 55.01(a)(2)(A)(ii)(e) ).
Article 55.01 has since been amended, but the language at issue in this case remains the same.
C. Analysis
J.C. contends that the only statutory element in dispute is whether the charge—i.e., the charging instrument, here, the information—"is no longer pending." He argues that, as soon as the county court dismissed the information, the charge was no longer pending and the county court no longer had jurisdiction over J.C. He contends that if the Court of Criminal Appeals were to reverse the judgment of the Fourteenth Court of Appeals in the underlying harassment case, the charge (i.e., information) would be reinstated. J.C. argues that, by definition, a charge that may be reinstated is not now pending.
In response, Appellees argue that the State's appeal in the underlying harassment case prevented the termination of the case, and thus, the charge is still pending. Furthermore, Appellees contend that J.C.’s interpretation of Article 55.01(a)(2)(A)(ii)(e) would lead to absurd results because it would effectively prevent the State from exercising its statutory right to appeal the dismissal of an indictment or information.
We agree with Appellees. At this stage of the proceedings, J.C.’s petition for expunction is premature because, as the Appellees note, the State's appeal from the dismissal of the information in the underlying harassment case based on a finding that Section 42.07(a)(7) is unconstitutional is still pending before the Texas Court of Criminal Appeals.
Although the parties do not directly address this element, one way to satisfy the requirements for expunction is to prove that the "indictment or information was dismissed or quashed because ... the indictment or information was void." TEX. CODE CRIM. PROC. art. 55.01(a)(2)(A)(ii)(e). Void means "[o]f no legal effect." See Void , BLACK'S LAW DICTIONARY (11th ed. 2019); id. (defining "void ab initio " as "[n]ull from the beginning"). An indictment or information that is based on an unconstitutional statute is "void ab initio and as a legal reality, never existed at all." See Ex parte E.H. , 602 S.W.3d at 494 (discussing indictment and court-ordered community supervision based on statute that had been declared unconstitutional); see also Ex parte Lo , 424 S.W.3d 10, 27 (Tex. Crim. App. 2013) (holding solicitation of minors statute, former Texas Penal Code Section 33.021(b), unconstitutional and remanding to trial court to dismiss indictment).
Although the county court held that Section 42.07(a)(7) was unconstitutional and dismissed the information on that basis, the State has appealed that order. The Fourteenth Court of Appeals affirmed the county court's dismissal of the indictment, likewise concluding that Section 42.07(a)(7) was unconstitutional, and the State has petitioned for review in the Court of Criminal Appeals. Chen , 615 S.W.3d at 385 (petition for discretionary review filed). Although the Court of Criminal Appeals has not ruled on the State's petition for review in J.C.’s case, it has recently rejected the same arguments relied on by J.C. in challenging the constitutionality of Section 42.07(a)(7) and explicitly held that Section 42.07(a)(7) is not facially unconstitutional. See Ex parte Barton , 662 S.W.3d at 885-86 ; Ex parte Sanders , 663 S.W.3d at 216-17. And in Ex parte Barton , the Court of Criminal Appeals abrogated the Fourteenth Court of Appeals’ opinion in Chen , noting that the Fourteenth Court of Appeals agreed with the Fort Worth Court of Appeals’ incorrect constitutional analysis of Section 42.07(a)(7). See Ex parte Barton , 662 S.W.3d at 887 n.5.
Because the State's appeal was still pending at the time of the expunction hearing, the constitutionality of Section 42.07(a)(7) was still in dispute. Adopting J.C.’s interpretation of the expunction statute, which would allow petitioners to have arrest records expunged immediately after the trial court finds a statute unconstitutional, even while the State's appeal is still pending, would make the trial court the final arbiter on the constitutionality of a statute. This is contrary to the law. See, e.g. , TEX. CODE CRIM. PROC. art. 4.04, § 2 ("The Court of Criminal Appeals shall have, and is hereby given, final appellate and review jurisdiction in criminal cases coextensive with the limits of the state, and its determinations shall be final."); Vandyke v. State , 538 S.W.3d 561, 570 (Tex. Crim. App. 2017) ("We review de novo a challenge to the constitutionality of a statute."); see also Moore v. Bank Midwest, N.A. , 39 S.W.3d 395, 403 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) ("The appellate court, as the final arbiter of the law, has the duty to independently evaluate the trial court's legal findings.").
We also agree with Appellees that J.C.’s proposed interpretation of Article 55.01 ’s requirement that "the charge ... is no longer pending," which would allow a petitioner to expunge records relating to an arrest that was still on appeal, would create absurd results that the Legislature could not have intended. See TEX. GOV'T CODE § 311.021(3) ("In enacting a statute, it is presumed that ... a just and reasonable result is intended."); City of Rockwall v. Hughes , 246 S.W.3d 621, 625–26 (Tex. 2008) (noting that a statute will not be construed to yield an absurd result); McKinney v. Blankenship , 154 Tex. 632, 282 S.W.2d 691, 698 (1955) ("Unless there is no alternative, a statute will not be interpreted so as to lead to a foolish or absurd result."). Pending is defined as "[r]emaining undecided; awaiting decision." Pending , BLACK'S LAW DICTIONARY (11th ed. 2019). J.C.’s proposed interpretation would require the use of the word "pending" in the expunction statute to mean the charge is no longer undecided or awaiting a decision in the trial court.
Adopting this interpretation would render meaningless the State's statutory right to appeal from an order dismissing or quashing an indictment or information. TEX. CODE CRIM. PROC. art. 44.01(a)(1). The Code of Criminal Procedure mandates that all records be either returned, "obliterate[d]," or deleted and prohibits any entity from "release[ing], main[taining], disseminat[ing], or us[ing]" any records related to the expunged arrest. TEX. CODE CRIM. PROC. arts. 55.02 –.03. If a petitioner was allowed to expunge all records relating to an arrest while the State's appeal from the dismissal of an indictment or information was still pending, in the event the State was successful on appeal and the indictment or information was reinstated, the State would have no records with which to prosecute. This cannot be the interpretation intended by the Legislature. Instead, we interpret "pending" as used in the expunction statute to include the time in which the ultimate validity of the charge is pending, i.e., awaiting a decision, on appeal. See Pending , BLACK'S LAW DICTIONARY (11th ed. 2019); cf. Johnson v. State , 784 S.W.2d 413, 414 (Tex. Crim. App. 1990) ("A conviction from which an appeal has been taken is not considered final until the appellate court affirms the conviction and issues its mandate."); Irving v. State , 879 S.W.2d 220, 222 (Tex. App.—Houston [14th Dist.] 1994), aff'd , 922 S.W.2d 959 (Tex. Crim. App. 1996) (noting that "[a]ny claim by the State that the trial court wrongfully dismissed an indictment should be raised by appeal," but because State "chose to do nothing" and "did not appeal the order of dismissal, the order was, and is, final").
Our role in construing statutes is to review the statutes in context, not in isolation, and to harmonize statutes so as not to reach absurd results unintended by the Legislature. Applying J.C.’s interpretation of Article 55.01(a)(2)(A)(ii)(e), without harmonizing that statute with Article 44.01(a)(1), would render meaningless the State's ability to appeal a category of orders expressly allowed for by statute. See, e.g., State v. Robinson , 498 S.W.3d 914, 921 (Tex. Crim. App. 2016) (declining to apply statute related to shock probation without harmonizing that statute with Article 44.01(e), because doing so would result in absurd results unintended by Legislature).
For these reasons, we conclude that J.C. did not satisfy his burden to prove compliance with the statutory requirements for expunction, and therefore, hold that the trial court did not abuse its discretion in denying J.C.’s petition for expunction.
Conclusion
We affirm the trial court's order denying expunction.