                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00338-CV


EX PARTE J.H.


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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. D372-E-13054-17

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      In a single issue in this restricted appeal, appellant the Texas Department

of Public Safety (DPS) argues that the trial court misinterpreted the expunction

statute when it ordered that appellee J.H.’s arrest record regarding a February 3,

2011 order of deferred adjudication community supervision be expunged. Even

though DPS acknowledges that the statute which J.H. was charged under has

since been declared unconstitutional, DPS nonetheless argues that J.H. was not

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       See Tex. R. App. P. 47.4.
entitled to have his arrest record expunged because he was placed on

community supervision after pleading guilty to the State’s charge and, according

to DPS, the expunction statute specifically prohibits expunction if someone has

been placed on community supervision.

      Because this court has recently rejected this same argument and held that

once a trial court grants habeas corpus relief predicated on a void statute, void

too are the conditions of an applicant’s community supervision, we will dismiss

this restricted appeal.

                                 II. BACKGROUND

      In August 2010, the State indicted J.H. in cause number 1211091D for 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, J.H. pleaded guilty in

exchange for ten years’ deferred adjudication community supervision and a

$1500 fine, as well as the imposition of court-ordered counseling and other

conditions designed at restricting his access to the Internet. Two years after J.H.

pleaded guilty, 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

overly broad).    Nearly six years after being placed on deferred adjudication

community supervision, the trial court granted J.H.’s application for writ of habeas



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corpus based on the holding in Lo. In its January 6, 2017 order, the trial court

expressly found that Lo applied to J.H.’s case and declared void the order of

deferred adjudication. Attached to the order is a copy of the State’s motion to

dismiss the charges against J.H. On February 17, 2017, J.H. filed a petition for

the expunction of all criminal records related to cause number 1211091D. In

April 2017, after holding a hearing, the trial court granted J.H.’s petition. On

October 2, 2017, DPS filed a notice of restricted appeal.

                                   III. DISCUSSION

      In a single issue, DPS argues that it is entitled to this restricted appeal

because there is error on the face of the record. Specifically, DPS argues that

J.H. was not entitled to have his arrest record expunged because he was placed

on community supervision after pleading guilty to the State’s charge and that the

expunction statute expressly prohibits anyone placed on community supervision

from having their record expunged. J.H. argues, among multiple arguments, that

because    the   statute   which    he   was   convicted    under    was   declared

unconstitutional, it was proper for the trial court to find his deferred adjudication

community supervision order void as well and that thus there is no error on the

face of the record in this case. Consequently, argues J.H., DPS is not entitled to

its restricted appeal. We agree with J.H.

      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



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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. See Lab. Corp. of Am. v. Mid-Town

Surgical Ctr., Inc., 16 S.W.3d 527, 528–29 (Tex. App.—Dallas 2000, no pet.).

(holding that court lacked jurisdiction over restricted appeal because laboratory

corporation had filed its notice of restricted appeal more than six months after

judgment was signed).

      We review a trial court’s ruling on a petition for expunction under an abuse-

of-discretion standard. See Ex parte Cephus, 410 S.W.3d 416, 418 (Tex. App.—

Houston [14th Dist.] 2013, no pet.); Heine v. Tex. Dep’t of Pub. Safety, 92

S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). But to the extent a

ruling on an expunction petition turns on a question of law, we review the ruling

de novo because a trial court has no discretion in determining what the law is or

in applying the law to the facts. Tex. Dep’t of Pub. Safety v. Dicken, 415 S.W.3d

476, 478 (Tex. App.—San Antonio 2013, no pet.).

      This court has recently addressed the issue of whether there is error on

the face of the record when a trial court grants expunction relief predicated on the



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fact that the felony offense of online solicitation of a minor pursuant to former

penal code section 33.021(b) has been declared unconstitutional. Ex parte E.H.,

No. 02-17-00419-CV, 2018 WL _______, at * _ (Tex. App.—Fort Worth, Aug. 16,

2018, no pet. h.); see Lo, 424 S.W.3d at 14. In E.H., this court concluded that

the void statute, E.H.’s later-granted habeas relief, and the role under the

separation of powers that courts play in expunction and in the interpretation of

judgments and statutes mandated that E.H.’s arrest record be expunged. E.H.,

No. 02-17-00419-CV, 2018 WL _______, at *_. Thus, the trial court had not

abused its discretion by ordering the expunction of E.H.’s record, and DPS had

therefore failed to show error on the face of the record. Id.

      The facts of J.H.’s case are identical to those found in E.H. Thus, like in

E.H., where this court held that there was no error on the face of the record when

the trial court ordered expunction of E.H.’s arrest record, here, there is no error

on the face of the record by the trial court ordering the expunction of J.H.’s arrest

record. See id. Because DPS has failed to establish error on the face of the

record, we overrule its sole issue.

                                 IV. CONCLUSION

      Having overruled DPS’s sole issue on the basis of failure to establish error

on the face of the record, we dismiss this restricted appeal for want of

jurisdiction. See 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.).



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                                         /s/ Bill Meier
                                         BILL MEIER
                                         JUSTICE

PANEL: SUDDERTH, C.J.; MEIER and PITTMAN, JJ.

DELIVERED: August 23, 2018




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