                                  IN THE
                          TENTH COURT OF APPEALS



                                 No. 10-17-00216-CV

                          IN RE THE STATE OF TEXAS,
                           EX REL JARVIS PARSONS


                                Original Proceeding



                          MEMORANDUM OPINION

      The State files a petition for writ of mandamus seeking to revoke an order of non-

disclosure entered in Cause No. 17-000369-CV-85 by the Honorable Kyle Hawthorne,

presiding judge of the 85th District Court of Brazos County, Texas. In one issue, the State

argues that Judge Hawthorne erred in granting the order of non-disclosure because he

lacked jurisdiction to do so. Having reviewed the State’s petition, the brief filed by the

Real Party in Interest, Edgar Amaya, and the State’s reply brief, we will provisionally

grant the State’s petition for writ of mandamus.
                                              Background

        The exhibits before the Court reflect that Amaya was charged with a felony offense

of assault/family violence/strangulation that occurred on January 4, 2013. Amaya

entered a guilty plea to a lesser charge of assault that included an affirmative finding of

family violence.        Amaya received a sentence of one year deferred adjudication

community supervision on July 24, 2013. Amaya’s deferred adjudication community

supervision was discharged by the trial court on July 23, 2014.1 On February 13, 2017,

Amaya filed a petition for non-disclosure of his criminal history record with respect to

the offense for which he successfully completed deferred adjudication community

supervision. Judge Hawthorne granted Amaya’s request on March 21, 2017.

                                                Analysis

        A nondisclosure proceeding, while arising out of a criminal case, is considered

civil in nature. See Harris v. State, 402 S.W.3d 758, 760 (Tex. App.—Houston [14th Dist.]

2012, no pet.); see also Bergin v. State, No. 06-06-00089-CV, 2006 WL 2456302, at *1 (Tex.

App.—Texarkana Aug. 25, 2006, no pet.) (mem. op.). We will, therefore, analyze whether

the State is entitled to mandamus relief applying civil rules. In order to obtain mandamus

relief, a relator “must establish that an underlying order is void or a clear abuse of

discretion and that no adequate appellate remedy exists.” In re Nationwide Ins. Co. of

America, 494 S.W.3d 708, 712 (Tex. 2016).




1
  The trial court’s order was not included as an exhibit by either party. However, there is no dispute that
Amaya received a discharge. The date of the discharge is found in Amaya’s petition for non-disclosure,
included as Exhibit D to the State’s petition for writ of mandamus.


In re State of Texas                                                                                Page 2
        The statute that permits a defendant to petition for non-disclosure does not grant

a right to appeal. See State v. L.P., 525 S.W.3d 418, 419 (Tex. App.—Fort Worth 2017, no

pet.).2 As the State has no adequate appellate remedy, the only issue before us is whether

the trial court possessed jurisdiction to enter the order granting non-disclosure.

        Amaya argues that the State waived the issue of the trial court’s jurisdiction by

failing to object either after receiving notice of his petition for non-disclosure or a copy of

the trial court’s order. However, a relator, including the State, need not object to an order

issued by a trial court prior to filing a petition for a writ of mandamus in an appellate

court when the order is void. In re Bank of America, N.A., No. 01-02-00867-CV, 2003 WL

22310800, at *3 (Tex. App.—Houston [1st Dist.] Oct. 9, 2003, no pet.) (mem. op. on reh’g).

        This is true because lack of jurisdiction is a fundamental error and may be
        raised for the first time in an appellate court. See Mapco, Inc. v. Carter, 817
        S.W.2d 686, 687 (Tex. 1991). Additionally, subject-matter jurisdiction
        cannot be conferred by consent, waiver, or estoppel. See Fed’l Underwriters
        Exch. v. Pugh, 141 Tex. 539, 174 S.W.2d 598, 600 (Tex. 1943); Tourneau
        Houston, Inc. v. Harris County Appraisal Dist., 24 S.W.3d 907, 910 (Tex.
        App.—Houston [1st Dist.] 2000, no pet.).

Id.; see also In re Stern, 436 S.W.3d 41, 46 (Tex. App.—Houston [14th Dist.] 2014, no pet.)

(orig. proceeding) (op. on reh’g) (“[c]ases involving void orders present a circumstance

warranting mandamus relief.”) (quoting Custom Corporates, Inc. v. Security Storage, Inc.,

207 S.W.3d 835, 838 (Tex. App.—Houston [14th Dist.] 2006, orig. proceeding)); In re

Valliance Bank, 422 S.W.3d 722, 728 (Tex. App.—Fort Worth 2012, no pet.) (orig.

proceeding) (“doctrines such as laches, waiver, or estoppel are not applicable when the



2
 There is a limited right to appeal in a case in which the amount in controversy exceeds $250, but that is
not applicable in this case. Id. at 419-20.


In re State of Texas                                                                                 Page 3
order that is the subject of the mandamus proceeding is void.”). Assuming without

deciding that the State did have notice of Amaya’s petition for non-disclosure and the

trial court’s ruling, the lack of an objection does not preclude the State’s present petition

for writ of mandamus as the trial court lacked jurisdiction to enter the order of non-

disclosure.

        The statute in effect at the time Amaya committed the offense for which he was

placed on deferred adjudication community supervision was TEX. GOV’T CODE ANN. §

411.081,3 which provided:

        (e) A person is entitled to petition the court under Subsection (d) only if
        during the period of the deferred adjudication community supervision for
        which the order of nondisclosure is requested and during the applicable
        period described by Subsection (d)(1), (2), or (3), as appropriate, the person
        is not convicted of or placed on deferred adjudication community
        supervision under Section 5, Article 42.12, Code of Criminal Procedure, for
        any offense other than an offense under the Transportation Code
        punishable by fine only. A person is not entitled to petition the court under
        Subsection (d) if the person was placed on the deferred adjudication
        community supervision for or has been previously convicted or placed on
        any other deferred adjudication for:

                 (1) an offense requiring registration as a sex offender under Chapter
                 62, Code of Criminal Procedure;




3
 See Act of May 27, 1993, 73rd Leg., R.S., ch. 790, § 35, sec. 411.081, 1993 Tex. Gen. Laws 3088, 3107-08,
amended by Act of May 31, 2003, 78th Leg., R.S., ch. 1236, § 4, 2993 Tex. Gen. Laws 3499, 3500-01 (adding
subsection e) (amended 2005), and amended by Act of May 18, 2007, 80th Leg., R.S., ch. 1017, § 5, sec. 411.081,
2007 Tex. Gen. Laws 3544, 3547 (amended 2009, 2011, 2013, 2015, 2017) (current version at TEX. GOV’T CODE
ANN. § 411.074(e) (West Supp. 2018)). Amendments in 2009 and 2011 made no changes to the statute that
would apply in this case. The 2013 amendments apply only to offenses committed on or after their effective
date—September 1, 2013. An offense committed before the effective date of the 2013 amendments is
governed by the law in effect on the date the offense was committed. See Section 9 of Act of May 7, 2013,
83rd Leg., R.S., ch. 96, § 6, sec. 411.081(e), 2013 Tex. Sess. Law Serv. 194, 196 (West).


In re State of Texas                                                                                   Page 4
                 (2) an offense under Section 20.04, Penal Code, regardless of whether
                 the offense is a reportable conviction or adjudication for purposes of
                 Chapter 62, Code of Criminal Procedure;

                 (3) an offense under Section 19.02, 19.03, 22.04, 22.041, 25.07, or
                 42.072, Penal Code; or

                 (4) any other offense involving family violence, as defined by Section
                 71.004, Family Code.


        Subsection (e)(4) specifically provides that non-disclosure is not available to

individuals placed on deferred adjudication community supervision for offenses

involving family violence.4 See Jackson v. State, No. 14-13-00747-CV, 2014 WL 6085593, at

*1 (Tex. App.—Houston [14th Dist.] Nov. 13, 2014, no pet.). As Amaya was placed on

deferred adjudication community supervision for an offense that involved family

violence, he is not eligible for an order of non-disclosure. The trial court’s order granting

Amaya’s petition for non-disclosure is, therefore, void. The State’s sole issue is sustained.




4
  While it could be argued that the language of the statute precludes non-disclosure for individuals who
have an earlier or subsequent conviction involving family violence, such an interpretation would not be in
line with the plain meaning of the statute which by its terms precludes non-disclosure for individuals who
are placed on deferred adjudication community supervision for any offense, in addition to those listed in
subsections (e)(1), (2), and (3), involving family violence. Any other interpretation would subvert the intent
of the statute, which is to exempt “serious violent offenders, sexual offenders, and family violent offenders
from ever receiving an OND.” See Tex. S.B. 1902, 84th Leg., R.S. (2015) (Author’s/Sponsor’s Statement of
Intent). “Our primary objective in statutory construction is to give effect to the legislature’s intent.” Texas
Dep’t of Pub. Safety v. Nail, 305 S.W.3d 673, 679 (Tex. App.—Austin 2010, no pet.) (op. on reh’g). “We rely
on the plain meaning of the text, unless a different meaning is supplied by legislative definition or is
apparent from context, or unless such a construction leads to absurd results.” Id. When construing a
statute, whether it is considered ambiguous or not, the court may consider the: “(1) object sought to be
attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or
former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular
construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency
provision.” TEX. GOV’T CODE ANN. § 311.023 (West 2013). “We also consider statutes as a whole rather than
as isolated provisions.” Ex parte S.D., 457 S.W.3d 168, 171 (Tex. App.—Amarillo 2015, no pet.).


In re State of Texas                                                                                   Page 5
        We therefore conditionally grant the State’s petition for writ of mandamus. A writ

will issue only if Respondent, the Honorable Kyle Hawthorne, fails to vacate his order

granting Amaya’s petition for non-disclosure issued on March 21, 2017, and to notify this

Court in writing that he has done so within seven days from the date of this opinion.




                                                 REX D. DAVIS
                                                 Justice

Before Chief Justice Gray,*
       Justice Davis, and
       Justice Scoggins
(*Chief Justice Gray dissents)
Mandamus provisionally granted and case remanded
Opinion delivered and filed January 9, 2019
[OT06]




In re State of Texas                                                                Page 6
