Opinion
NO. 01-16-00420-CV
06-06-2017
On Appeal from the 268th District Court Fort Bend County, Texas
Trial Court Case No. 15-DCV-227070
OPINION
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: (1) S.E.H. did not prove that he satisfies all of the statutory prerequisites for expunction, and (2) the scope of the expunction order is overly broad. We reverse and render judgment denying S.E.H.'s petition for expunction because S.E.H. did not satisfy the statutory requirements for expunction. He did not demonstrate that he had not been placed on community supervision.
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 (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 supervision." TEX. CODE CRIM. PROC. ANN. Art. 11.072, § 1 (West 2015). 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
In its first issue, TEA argues that the trial court abused its discretion when it granted S.E.H.'s petition because S.E.H.'s failed to demonstrate that he was not placed on community supervision, which is a statutory prerequisite for expunction. See TEX. CODE CRIM. PROC. ANN. art. 55.01(a), (a)(2) (West Supp. 2016).
A. Standard of Review
1. Petition for Expunction
This Court reviews a trial court's grant or denial of a petition for expunction under an abuse of discretion standard. Tex. Dep't of Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). A trial court abuses its discretion if it renders a decision that is arbitrary, unreasonable, or without reference to guiding rules and principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996); J.H.J., 274 S.W.3d at 806. A trial court's legal conclusions, however, are reviewed de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex. 1996); J.H.J., 274 S.W.3d at 806. 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).
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. ANN. Art. 55.01 (West Supp. 2016); see also Collin Cty. Dist. Attorney's Office v. Fourrier, 453 S.W.3d 536, 538-39 (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. Where a cause of action is created by statute, all of its provisions are mandatory and exclusive, requiring strict compliance for the action to be sustained. Fourrier, 453 S.W.3d at 539; J.H.J., 274 S.W.3d at 806. 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; J.H.J., 274 S.W.3d at 806. 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. Fourrier, 453 S.W.3d at 539; J.H.J., 274 S.W.3d at 806.
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. Travis Cty. Dist. Attorney v. M.M., 354 S.W.3d 920, 929 (Tex. App.—Austin 2011, no pet.); Tex. Dep't of Pub. Safety v. Fredricks, 235 S.W.3d 275, 281 (Tex. App.—Corpus Christi 2007, no pet.).
2. Statutory Interpretation
This case concerns an issue of statutory interpretation, i.e., the scope of a statute, that we review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008); see also Ex parte S.C., 305 S.W.3d 258, 261 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Our goal in interpreting a statute is to give effect to the legislature's intent as expressed by the language in the statute. City of Rockwall, 246 S.W.3d at 625. We assume that the statute's words bear their "plain and common meaning" unless the Legislature provided a definition or another meaning that is apparent from the context. Id. at 625-26. We consider the statute as a whole, reading each word and phrase in context, and attempt to give effect to every part. Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). If the meaning of statutory language is clear and unambiguous, we may not resort to rules of construction or extrinsic aids. City of Rockwall, 246 S.W.3d at 626.
3. 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" may obtain 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. ANN. Art. 55.01(a), (a)(2).
B. Waiver
S.E.H. argues that TEA waived its argument that he failed to prove that he satisfies all of the statutory prerequisites for expunction because TEA did not raise this argument in the trial court. TEA was not required to preserve the alleged errors for our review, however, because trial courts have an independent duty to insure that the petitioner has proven that he meets all of the statutory requirements for expunction. See In re Expunction, 465 S.W.3d 283, 292 n.3 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (explaining that "[e]ven when the State does not appear at all in the trial court," appellate court "must reverse an order of expunction if the applicant fails to meet [his] burden" to prove that the statutory requirements have been met). Therefore, we will address the merits of TEA's arguments.
C. 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 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). The historical fact that S.E.H. was placed on community supervision also still exists.
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 Article 42.12 for the offense." TEX. CODE CRIM. PROC. ANN. 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 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. Utility 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."). Furthermore, a trial court that does not strictly comply with the statutory procedures for expunction commits reversible error. Fredricks, 235 S.W.3d at 281 (citing Ex parte Stiles, 958 S.W.2d 414, 418 (Tex. App.—Waco 1997, pet. denied)). 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.
We further note that 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, 653 (Tex. 2006) (noting statutory amendments by Legislature were in response to court decisions).
Accordingly, we hold that the trial court abused its discretion when it granted S.E.H.'s petition for expunction because S.E.H. failed to demonstrate his compliance with the requirements for expunction set out in the plain language of the statute. See Fredricks, 235 S.W.3d at 281; see also Fourrier, 453 S.W.3d at 539; J.H.J., 274 S.W.3d at 806.
Conclusion
We reverse the order of expunction and render judgment that S.E.H. is not entitled to have all criminal records regarding his arrest for online solicitation of a minor expunged.
We further order that any documents surrendered to the trial court or to S.E.H. be returned to the submitting agencies. See Fredricks, 235 S.W.3d at 282; see also Ex parte Elliot, 815 S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of order of expunction applies to all respondents, even if they did not participate in appeal).
Russell Lloyd
Justice Panel consists of Chief Justice Radack and Justices Brown and Lloyd.