Opinion issued December 28, 2018




                                      In The
                                 Court of Appeals
                                     For The
                             First District of Texas
                          ————————————
                              NO. 01-16-00420-CV
                            ———————————
                  TEXAS EDUCATION AGENCY, Appellant
                                        V.
                                 S.E.H., Appellee



                   On Appeal from the 268th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 15-DCV-227070



      CONCURRING OPINION ON EN BANC RECONSIDERATION

      The question presented is whether S.E.H. satisfies the statutory requirements

for expunction. I conclude that he does, and I join the majority opinion. I write

separately to elaborate on my reasons for reaching that conclusion.
      Texas’s expunction statute identifies discrete exceptions to the general rule

that records are not erased. As relevant here, article 55.01 creates an “entitle[ment]”

to expunction of records relating to an arrest if the “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,” provided that the person’s indictment was dismissed as void, dismissed for

lack of probable cause, or one of several other conditions was met. TEX. CODE CRIM.

PROC. art. 55.01(a), (a)(2).

      It is undisputed that S.E.H. meets most of the expunction requirements. The

question here is whether, under Chapter 55 of the Code of Criminal Procedure—

titled “Expunction of Criminal Records”—“there was no court-ordered community

supervision . . . for the offense” charged under Texas Penal Code section 33.021(b).1

Id. (emphasis added). We cannot answer this question without addressing the fact


1
      “Offense” means “crime” or a violation or infraction of law. BLACK’S LAW
      DICTIONARY (10th ed. 2014); see also WEBSTER’S NEW COLLEGIATE DICTIONARY
      790 (Henry Bosley Woolf ed., 1981). “Was” is the past tense of the verb to be, which
      in turn means (among other things) to exist. See WEBSTER’S NEW COLLEGIATE
      DICTIONARY       at      95;    accord     MERRIAM-WEBSTER            DICTIONARY,
      https://www.merriam-webster.com/dictionary/was (last visited Dec. 17, 2018). And
      under article 42A, “‘[c]ommunity supervision’ means the placement of a defendant
      by a court under a continuum of programs and sanctions, with conditions imposed
      by the court for a specified period during which: (A) criminal proceedings are
      deferred without an adjudication of guilt; or (B) a sentence of imprisonment or
      confinement, imprisonment and fine, or confinement and fine, is probated and the
      imposition of sentence is suspended in whole or in part.” TEX. CODE CRIM. PROC.
      art. 42A.001(1).

                                           2
that section 33.021(b) was held facially unconstitutional. See Ex parte Lo, 424

S.W.3d 10, 20 (Tex. Crim. App. 2013) (holding section 33.021(b) unconstitutional).

That is because the sole community supervision order in this case was for “an

offense” charged under section 33.021(b).

      Binding precedent is clear that “an unconstitutional statute is void from its

inception.” Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015) (quoting

Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1988)). “[W]hen a statute is

adjudged to be unconstitutional, it is as if it had never been.” Id.; see also

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 759–61, 115 S. Ct. 1745, 1752

(1995) (Scalia, J., concurring) (“[W]hat a court does with regard to an

unconstitutional law is simply to ignore it. It decides the case ‘disregarding the

[unconstitutional] law,’ Marbury v. Madison, 1 Cranch 137, 178, 2 L.Ed. 60 (1803)

(emphasis added), because a law repugnant to the Constitution ‘is void, and is as no

law.’”) (citation omitted).

      Because “an unconstitutional [criminal] statute . . . [is] no statute at all,” an

“offense” charged under the statute is no offense at all. See Reyes, 753 S.W.2d at

383–84. Court-ordered punishment under an unconstitutional statute is likewise

void. Id. (“Since an unconstitutional law is void, the general principles follow that it

imposes no duties, confers no rights, creates no office, bestows no power or authority

on anyone, affords no protection, and justifies no acts performed under it.”) (citation


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omitted); see also Ex parte Siebold, 100 U.S. 371, 376 (1879) (“An unconstitutional

law is void, and is as no law. An offence created by it is not a crime. A conviction

under it is not merely erroneous, but is illegal and void . . . .”); accord Montgomery

v. Louisiana, 136 S. Ct. 718, 730–31 (2016).

      Where, for instance, a “judgment imposing probation [is] void, then the trial

court would have no authority to revoke [the] probatio[n], since, with no judgment

imposing probation (because it is a nullity), there is nothing to revoke.” Nix v. State,

65 S.W.3d 664, 668 (Tex. Crim. App. 2001); see also Martinez v. State, 194 S.W.3d

699, 701 (Tex. App.—Houston [14th Dist.] 2006, no pet.) (same).

      In a case like this one, it is as if the “offense” and court-ordered community

supervision “for th[at] offense” did not legally exist. See Reyes, 753 S.W.2d at 383–

84; see also Ex parte Siebold, 100 U.S. at 376; Ex parte C.D., No. 12-17-00309,

2018 WL 3569838, *3 (Tex. App.—Tyler July 25, 2018, pet. filed) (mem. op.)

(“[T]he statute under which C.D. was arrested has been declared unconstitutional,

and, as a result, it is as if C.D.’s arrest never occurred.”); In re N.G., – N.E.3d –,

2018 IL 121939, 2018 WL 6598821, at *7 (Ill. Dec. 17, 2018) (“To hold that a statute

is facially unconstitutional means that the conduct it proscribed was beyond the




                                           4
power of the state to punish . . . . That being the case, the conviction must be treated

by the courts as if it did not exist . . . .”) (citations omitted).2

       For these reasons, S.E.H. satisfies the expunction statute’s plain terms. S.E.H.

has met his burden of showing, as a matter of law, that “there was no court-ordered

community supervision under Chapter 42A for the offense.” See TEX. CODE CRIM.

PROC. art. 55.01(a) (emphasis added). Section 33.021(b)’s unconstitutionality

renders the “offense” (i.e. crime) and “court-ordered” punishment thereunder legally

void.3 There was “no judgment imposing [community supervision] (because it is a


2
       It is not uncommon for courts to indulge a legal fiction or disregard certain evidence
       when required by law. For instance, courts hold that “evidence is legally insufficient
       to support a jury finding when . . . the court is barred by rules of law or of evidence
       from giving weight to the only evidence offered to prove a vital fact . . . .” Gunn v.
       McCoy, 554 S.W.3d 645, 658 (Tex. 2018); City of Keller v. Wilson, 168 S.W.3d
       802, 810–12 (Tex. 2005).
3
       Notably, the Legislature expressly included a void indictment as one of the limited
       circumstances in which expunction could be warranted. Unless prosecution is no
       longer possible, an individual who has not been pardoned or acquitted and seeks
       expunction must demonstrate (in addition to other necessary showings) that (1) an
       indictment has not been presented and other conditions are met or (2) if the
       indictment has been presented, it was dismissed or quashed because:

         (a) the person completed a specified “veterans treatment court program”;
         (b) the person completed a “pretrial intervention program authorized under
             Section 76.011”;
         (c) “the presentment had been made because of mistake, false information, or
             other similar reason indicating absence of probable cause at the time of the
             dismissal to believe the person committed the offense”; or
         (d) “the indictment or information was void.”

       TEX. CODE CRIM. PROC. art. 55.01(a)(2)(A)(ii) (emphasis added). Section
       33.021(b)’s unconstitutionality renders void any indictment under it, just as it

                                              5
nullity).” Nix, 65 S.W. 3d at 667–68. The dissent’s conclusion that S.E.H. served

court-ordered community supervision as a matter of historical fact does not account

for the legal effect of section 33.021(b)’s unconstitutionality.

      Two of our sister courts recently addressed closely analogous questions and

reached the same conclusion, permitting expunction when the statute under which a

person was convicted was later declared unconstitutional. See Ex parte E.H., –

S.W.3d –, No. 02-17-00419-CV, 2018 WL 4050556, at *7 (Tex. App.—Fort Worth

Aug. 16, 2018, pet. filed); C.D., 2018 WL 3569838, at *3. Similarly, in Thompson

v. State, 604 S.W.2d 180, 181–82 (Tex. Crim. App. 1980), the Court of Criminal

Appeals held that a prior void conviction did not foreclose a jury from

recommending probation, when the relevant statute allowed probation only if the

defendant had never been “convicted.” As the court explained, “[i]t is axiomatic that

the conviction must . . . be a valid conviction.” Id; see also State v. Marshall, 60

Ohio App. 2d 371, 371–73, 397 N.E.2d 777, 778–79 (1st Dist. 1979) (expunction

statute’s exclusion of all but first offenders did not preclude expunction where

appellant’s prior conviction was under an unconstitutional statute).

      The question before us is not whether the Legislature could have foreclosed

expunction even if one’s punishment was ordered under an unconstitutional statute.



      renders void any court-ordered punishment. See Ex parte Weise, 55 S.W.3d 617,
      620 (Tex. Crim. App. 2001).
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Texas law says that expunction is not a right; it is a statutory privilege that the

Legislature has created and could remove entirely. In re State Bar of Texas, 440

S.W.3d 621, 624 (Tex. 2014). And of course, the fact that one actually served

community supervision, although under a void statute, might be probative of certain

facts, such as where the individual was at a particular time. But article 55.01(a)’s

text provides no basis to deprive S.E.H. of a statutory privilege to which he would

be entitled but for legally nonexistent community supervision for a void offense.

      Because S.E.H. satisfies article 55.01(a)’s plain terms, he is entitled to

expunction.




                                             Jennifer Caughey
                                             Justice

The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Lloyd, and Caughey.

Justice Massengale writing for the majority of the en banc court, joined by Chief
Justice Radack and Justices Keyes, Higley, Bland, Brown, and Caughey.

Justice Jennings, concurring in the judgment, joined by Justice Higley.

Justice Caughey, concurring, joined by Justices Keyes and Brown.

Justice Lloyd, dissenting.




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