Opinion issued February 28, 2019




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-17-00210-CV
                            ———————————
                  TEXAS EDUCATION AGENCY, Appellant
                                         V.
                                 H.C.V., Appellee


                    On Appeal from the 113th District Court
                             Harris County, Texas
                       Trial Court Case No. 2016-30247


                                   OPINION

      Appellee H.C.V. successfully petitioned the trial court for expunction of all

records of her arrest and prosecution for the state-jail felony offense of online

solicitation of a minor. In two issues, the Texas Education Agency (TEA) appeals

the trial court’s granting the expunction order and its scope. We hold that the trial
court properly granted the petition for expunction but erred in failing to modify the

order’s scope.

                                     Background

      In April 2007, H.C.V., a teacher with a state-educator certification, pleaded

guilty to online solicitation of a child. She was placed on community supervision,

but after H.C.V. failed to register as a sex offender, her community supervision was

revoked and she was sentenced to nine months in state jail. In November 2007, the

TEA successfully moved to revoke H.C.V.’s Texas Educator Certification.

      After the statute that H.C.V.’s prosecution was based on was declared

unconstitutional,1 H.C.V. successfully applied for habeas corpus relief as to her

conviction. H.C.V. then petitioned for expunction of all records relating to her arrest.

The TEA objected to expunction.

      After a hearing and taking the matter under advisement, the trial court granted

the petition for expunction in an order that provides in pertinent part:

             (1) The petition for expunction is GRANTED, and all records of
      the petitioner’s arrest in the above-stated causes including all records
      of petitioner’s prosecution for both such offenses are expunged; and all
      release, dissemination or use of records pertaining to such arrests and
      prosecutions is prohibited;

             (2) The respondents, and all private entities receiving notice of
      this order, shall return all records and files concerning the above-
      specified arrests to this Court, or if removal is impracticable, obliterate


1
      Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
                                           2
      all portions of the records or files that identify the petitioner, including
      all computer entries, and notify the court of its action; . . .

      The TEA filed a motion for new trial and, in the alternative, motion to modify

the expunction order. The motion requested in part that the trial court address

expunction of the administrative law judge’s Proposal for Decision (the PFD) to the

State Board of Educator Certification regarding its action to revoke H.C.V.’s

Educator Certification. The TEA requested that the trial court either except the PFD

from the expunction order or modify the order to allow the PFD to be redacted to

remove any references to H.C.V.’s arrest and criminal case. The trial court denied

the TEA’s motion.

                                       Analysis

      In its first issue, the TEA contends that the trial court erred in granting the

petition for expunction because H.C.V. was placed on community supervision,

which negates her entitlement to expunction.2 The TEA’s second issue asserts that,

even if H.C.V. were entitled to expunction, the trial court’s order is overly broad

because the PFD includes information that is not subject to being expunged.


2
      See TEX. CODE CRIM. PROC. art. 55.01(a)(2) (“A person who has been placed
      under a custodial or noncustodial arrest for commission of either a felony or
      misdemeanor is entitled to have all records and files relating to the arrest
      expunged if: . . . (2) the person has been released and the charge, if any, 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 . . .
      .”) (emphasis added).

                                           3
I.    Entitlement to Expunction

      This Court, sitting en banc, recently addressed the identical issue presented in

the TEA’s first issue. In Texas Education Agency v. S.E.H., No. 01-16-00420-CV,

___ S.W.3d ___, 2018 WL 6839727 (Tex. App.—Houston [1st Dist.] Dec. 28, 2018,

pet. filed) (en banc), the TEA similarly contested the expunction petition of a former

teacher who had likewise obtained habeas corpus relief after his guilty plea to online

solicitation of a child and resulting community supervision. We held that

      S.E.H., a person who was arrested for commission of a felony, is
      entitled to have all records and files relating to the arrest expunged
      because he has been released, and the charge has not resulted in a final
      conviction and is no longer pending. The prosecution was void ab
      initio, and as a matter of law there was no court-ordered community
      supervision under Chapter 42A for the offense.

Id. at ___, 2018 WL 6839727, at *3.

      For the same reasons set out in S.E.H., we hold that H.C.V. is entitled to

expunction and overrule the TEA’s first issue.

II.   Scope of expunction order

      In its second issue, the TEA asserts that the expunction order is overbroad

because it includes the PFD, which can be redacted to remove the references to

H.C.V.’s arrest and prosecution, and that the trial court erred in not modifying its

order to provide for redaction of the PFD.

      The TEA asserts that it has a strong interest in retaining the redacted PFD

because it provides administrative services to the Texas State Board for Educator
                                          4
Certification by, among other things, denying applications for certification. See TEX.

EDUC. CODE § 21.035(b); 19 TEX. ADMIN. CODE § 249.3(59). For example, based on

“satisfactory evidence” (such as the TEA’s own files) that a person has solicited

sexual conduct with a student or minor, the TEA could deny a re-application for

certification. See 19 TEX. ADMIN. CODE §§ 249.12(a)–(b), 249.15(a)–(c),

249.15(b)(9)(L); see, e.g., Gomez v. Tex. Educ. Agency, 354 S.W.3d 905, 917–18

(Tex. App.—Austin 2011, pet. denied) (affirming revocation of teacher certification

based in part on arresting officer’s eyewitness testimony of underlying conduct,

despite arrest records having been expunged, and Board’s own investigative records

could have identified arresting officer).

      At the hearing on the TEA’s motion for new trial, the TEA raised the issue of

expunging or redacting the PFD, explaining that it was raising the issue out of an

abundance of caution and that it had run into this issue previously because of its duty

to regulate educators. H.C.V. took the position that the trial court’s order required

the TEA and the State Board for Educator Certification to expunge the PFD in its

entirety. In response, the trial court opined that the order does not require the TEA

to “wipe out all of [its] records as well.”

      While the TEA did not present the PFD (which was in the record) to the trial

court for review, it described the document as not a “record relating to the arrest,”

but containing “explicit facts referencing that arrest.” The TEA was prepared to


                                              5
redact the PFD so that it was left with only H.C.V.’s underlying conduct. The trial

court then stated, “I think if TEA appropriately redacts the information that is

ordered to be expunged from their records and they maintain their other records, I

think they are probably within their boundaries.” The trial court nevertheless denied

the TEA’s motion for new trial.

      The PFD is a five-page document signed by an administrative law judge. It

states that the State Board for Educator Certification was seeking to revoke H.C.V.’s

educator certification “for having a sexual relationship with a student and engaging

in other inappropriate conduct that violated the Educators’ Code of Ethics and makes

[H.C.V.] unworthy to instruct or supervise the youth of this state.” It then notes that

H.C.V. defaulted and that the Board’s allegations would be accepted as true and its

revocation recommendation would be agreed to.

      The PFD then sets forth H.C.V.’s underlying conduct in its findings of fact:

while sitting behind her middle-school classroom desk with students present, H.C.V.

became unconscious and fell to the floor, and students went to the office seeking

medical assistance for her; school officers arrived and took H.C.V. to the school

nurse’s office and then returned to her classroom to secure her personal items; and

the officers found two empty cough syrup bottles and that H.C.V.’s “district email”

was “up” on her screen and a sexually explicit email was open on the screen. An

officer did a closer investigation that identified other sexually explicit emails with a


                                           6
possible student and, upon searching for that student’s name on the school roster,

determined that the student had been in the middle school the previous year and was

a freshman in high school. The student later admitted to sexual activity with H.C.V.

      The PFD includes the following four findings:

      25.    Respondent pled guilty to online solicitation of a minor in the
             182nd District Court of Harris County.

      26.    Respondent was given three years deferred adjudication starting
             April 2, 2007.

      27.    Respondent was required to register as a sex offender and
             participate in sex offender treatment by the court.

      28.    Respondent was also required to submit to random drug and
             alcohol analysis by the court.

      The expunction statute provides that, if certain conditions are met, a “person

who has been placed under a custodial or noncustodial arrest for commission of

either a felony or misdemeanor is entitled to have all records and files relating to the

arrest expunged. . . .” TEX. CODE CRIM. PROC. art. 55.01(a) (emphasis added).

      The TEA asserts that the expunction order is overbroad because a possible

interpretation of it (such as that given by H.C.V.) is that the entire PFD should be

expunged because it refers to H.C.V.’s prosecution and her underlying conduct that

led to her arrest and prosecution. The TEA contends that the expunction statute does

not encompass its administrative or investigative records of the conduct that led to




                                           7
the arrest and that the trial court’s order should be modified to provide for redaction

of the above references to H.C.V.’s prosecution in the PFD.

      H.C.V.’s position is: “If a record or file contains a reference to an arrest, it is

a record or file relating to the arrest, and must be expunged.” H.C.V. contends that

the entire PFD relates to the arrest because it contains the above four findings and

that the other findings that discuss the underlying conduct and investigation also

relate to the arrest. She concludes: “H.C.V.’s entire file with the agency relates to

the arrest because it contains the [the PFD].”3

      The specific issue before us is whether the entire PFD is subject to expunction

or whether redaction of the findings in the PFD relating to H.C.V.’s arrest and

prosecution satisfies the expunction statute. This issue requires us to construe article

55.01(a), which is a question of law that we review de novo. See City of Rockwall

v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008); Ex parte S.C., 305 S.W.3d 258, 262

(Tex. App.—Houston [14th Dist.] 2009, no pet.); Tex. Educ. Agency v. T.F.G., 295

S.W.3d 398, 401 (Tex. App.—Beaumont 2009, no pet.).


3
      Additionally, H.C.V. contends that the TEA’s request for a ruling on the PFD
      improperly seeks an advisory opinion. We disagree. “An opinion is advisory
      when the judgment sought would not constitute specific relief to a litigant or
      affect legal relations.” Brinkley v. Tex. Lottery Comm’n, 986 S.W.2d 764, 767
      (Tex. App.—Austin 1999, no pet.). A ruling on the expunction order’s scope
      as to the PFD will provide specific relief to the TEA. See, e.g., Carson v. State,
      65 S.W.3d 774, 785 (Tex. App.—Fort Worth 2001, no pet.) (noting that on
      remand city could seek ruling on whether certain records were not subject to
      expunction).
                                           8
       The primary objective in construing a statute is to ascertain and give effect to

the Legislature’s intent. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68,

74 (Tex. 2016). To ascertain that intent, a court first looks to the statute’s plain

language. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).

       We consider the text of article 55.01(a): “A person who has been placed under

a custodial or noncustodial arrest . . . is entitled to have all records and files relating

to the arrest expunged. . . .” (emphasis added). With respect to whether the conduct

underlying the arrest is subject to expunction, the statute’s plain text limits the scope

of expunction to “the arrest.” Cf. S.C., 305 S.W.3d at 263 (“we do not construe the

statute to encompass investigative files and records that existed prior to, and

independent of, the ultimate arrest”); id. at 268 (“Likewise, when concluding the

statute does not necessarily encompass expunction of investigative files and records,

we find no distinction between an investigation resulting in the petitioner’s arrest

and an investigation pursued for some other purpose; the same underlying conduct

is the focus of both investigations.”). The Legislature could have included in the

statute’s scope, for example, the expunction of the petitioner’s conduct that led to

the arrest, but it did not do so.4


4
       It is the Legislature’s prerogative—not this Court’s—to broaden the statute’s
       scope. See Tex. Dep’t Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—
       Houston [14th Dist.] 2008, no pet.) (stating that courts have no equitable
       power to extend the protections of the expunction statute beyond its stated
       provisions).
                                            9
      In addition to the statute’s plain language, we note that several Texas courts,

including the Supreme Court of Texas, have discussed the purpose of the expunction

statute and the legislative intent. “The legislature intended section 55.01 to permit

the expunction of records of wrongful arrests.” Harris Cty. Dist. Attorney’s Office

v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991) (emphasis added); see also Tex. Dep’t

Pub. Safety v. G.B.E., 459 S.W.3d 622, 625 (Tex. App.—Austin 2014, pet. denied)

(explaining that expunction statute “allows a person who has been arrested for the

commission of an offense to have all information about the arrest” expunged)

(emphasis added); S.C., 305 S.W.3d at 263 (“The Texas Supreme Court, our court,

and sister courts have recognized that the statute was enacted to enable a person who

is wrongfully arrested to expunge his arrest record.”) (emphasis added) (citing

cases). But the “statute’s purpose is not to eradicate all evidence of wrongful

conduct.” In re State Bar of Tex., 440 S.W.3d 621, 626 (Tex. 2014) (emphasis

added).

      “More specifically, the statute was enacted to prevent the record of a wrongful

arrest from negatively impacting a person for the remainder of his life.” S.C., 305

S.W.3d at 263–64 (emphasis added). The expunction statute even protects

wrongfully accused persons “from inquiries about their arrests.” State Bar of Tex.,

440 S.W.3d at 624 (emphasis added). The expunction statute provides that “the

person arrested may deny the occurrence of the arrest and the existence of the


                                         10
expunction order,” and if questioned under oath in a criminal proceeding, “may state

only that the matter in question has been expunged.” TEX. CODE CRIM. PROC. art.

55.03(2), (3). And notably, the statute does not provide that the person arrested may

deny the occurrence of the conduct or any investigation of the conduct that led to the

arrest.

          There is no dispute that all references to H.C.V.’s arrest and prosecution in

the PFD must be expunged. The dispute is whether the entire PFD is a record

“relating to the arrest” and must be expunged. The TEA relies on S.C. as support for

its position and criticizes T.F.G. We find T.F.G. to be both distinguishable and

unpersuasive.

          T.F.G. involved the TEA and a teacher who, unlike H.C.V., had been

acquitted on the charge of indecency with a child. T.F.G., 295 S.W.3d at 399. Also

unlike H.C.V.’s case, the alleged conduct had occurred almost five years before the

teacher was arrested, and because of that passage of time, the court emphasized that

the TEA may have had documents relating to the teacher apart from law enforcement

records relating to the criminal investigation, arrest, and prosecution of the teacher.

Id. at 403. The court correctly noted that the intent of the statute “is not to erase all

evidence of the underlying conduct, . . . .” Id. But we disagree with the next statement

in T.F.G. that the statute’s intent is “to expunge any evidence of the criminal

investigation . . . for that conduct” and with its conclusion that records of the criminal


                                            11
investigation related to the arrest should be expunged. Id. In S.C., the Fourteenth

Court also disagreed with T.F.G., noting:

       However, we disagree with the court’s injecting files and records
       relating to the “criminal investigation” into the scope of
       expunction. The court did not conduct any analysis to demonstrate the
       statute authorizes such relief. For the reasons discussed above, we
       conclude its opinion regarding expunction of files and records
       pertaining to the “criminal investigation” does not comport with the
       statute, and we decline to follow this portion of the opinion.

S.C., 305 S.W.3d at 268 (citations omitted). The court further noted the illogical

consequence of construing the statute to include expunction of the conduct that led

to the arrest, for under that reasoning,

       a person who was eventually arrested may obtain expunction of records
       of the investigation whereas a person who was investigated but not
       arrested has no such right. We cannot conclude the legislature intended
       to afford greater rights to a person who was arrested than to one who
       was not arrested.

Id. at 265.

       S.C. presents a preferable case-by-case approach, along with an analysis and

conclusion guided by the statute’s intent. Id. at 268–69. That case involved the State

Securities Board’s investigation of S.C. and a subsequent indictment for securities

fraud and engaging in organized criminal activity to commit theft. Id. at 259. After

the charges were dismissed and S.C. petitioned for expunction, the Board argued

that its files and records pertaining to its investigation of S.C. that did not specifically

reference the arrest were not subject to expunction, while S.C., like H.C.V. here,


                                            12
argued in contrast that all of the Board’s investigative files and records related to his

arrest and were subject to expunction. Id. at 259–62.

      We similarly conclude that the portions of the PFD that describe H.C.V.’s

underlying conduct are not subject to expunction because they are not “records and

files relating to the arrest.” Accord id. at 267–68 (concluding that petitioner was not

entitled to expunction of all the Board’s files and records pertaining to its

investigation). Rather, H.C.V. is entitled to expunction of only the PFD’s references

to her arrest and prosecution, which can easily be accomplished by redaction (as the

trial court stated at the hearing). See TEX. CODE CRIM. PROC. art. 55.02, § 5(a)(1)

(“each official or agency . . . shall . . . , if removal is impracticable, obliterate all

portions of the record or file that identify the person who is the subject of the order

and notify the court of its action”) (emphasis added); see S.P. v. Dallas Cty. Child

Welfare Unit of Tex. Dep’t of Human Resources, 577 S.W.2d 385, 388 (Tex. Civ.

App.—Eastland 1979, writ ref’d n.r.e.) (modifying expunction order to provide for

expunction (i.e., redaction) of “references” in reports relating to arrest).

      We sustain in part the TEA’s second issue and modify the trial court’s order

to provide for the redaction of the PFD’s references to H.C.V.’s arrest and

prosecution. See S.C., 305 S.W.3d at 269 (modifying expunction order on appeal);

S.P., 577 S.W.2d at 388 (same).

                                      Conclusion


                                           13
      The trial court did not err in granting H.C.V.’s petition for expunction, but it

erred in denying the TEA’s motion to allow it to redact and retain the PFD.5 We

modify subpart (2) of the order of expunction to include the following:

      However, the Texas Education Agency and the Texas State Board of
      Educator Certification may retain a version of the Proposal for Decision
      pertaining to H.C.V. with findings 25–28 redacted.

      The order of expunction is affirmed as modified.




                                                Richard Hightower
                                                Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.

Lloyd, J., dissenting, in part, and concurring, in part.




5
      We repeat that the trial court correctly noted at the hearing that the TEA could
      redact the arrest information and retain the redacted PFD.
                                           14
