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



                OPINION ON EN BANC RECONSIDERATION

      This appeal involves a statute authorizing expunction of arrest records and its

application to a former school teacher who, over the course of several months,

solicited sex online from a person he believed to be a thirteen-year-old girl. In reality,
appellee S.E.H. was communicating with a police officer who kept records of their

interactions as part of a sting operation.

      S.E.H. was eventually arrested for the felony offense of online solicitation of

a minor,1 and he pleaded guilty. Rather than being immediately sentenced to a

punishment, he received deferred adjudication. As a condition of his community

supervision, he surrendered his educator certification to the Texas Education

Agency. But after the relevant penal statute was held to be unconstitutionally

overbroad in violation of the First Amendment, S.E.H. obtained habeas corpus relief

and dismissal of the case against him.2 He subsequently petitioned for expunction of

all records and files relating to the arrest.3 The TEA opposed expunction generally,

and it expressed a desire to maintain a copy of records received from the police that

documented conduct before the arrest and that could be relevant to any future

application by S.E.H. to have his educator certification restored.

      The district court entered an expunction order that the TEA appeals on two

grounds. First, it argues that S.E.H. was not entitled to an expunction remedy

because he served court-ordered community supervision, which the TEA contends


1
      See Act of May 25, 2005, 79th Leg., R.S., ch. 1273, § 1, 2005 Tex. Gen. Laws
      4049, 4050 (amended 2007, 2015) (current version at TEX. PENAL CODE
      § 33.021(b)).
2
      See TEX. CODE CRIM. PROC. art. 11.072.
3
      See id. art. 55.01(a)(2).

                                             2
is a disqualifying factor. Second, the TEA argues that the scope of the expunction

order is overbroad to the extent it is prohibited from maintaining records

memorializing S.E.H.’s conduct. We conclude that the trial court correctly found

that S.E.H. is entitled to the expunction remedy. We further conclude that the TEA

has not preserved any challenge to the form or scope of the expunction order as

entered, nor to any question of whether any particular document must be expunged.

We therefore affirm the expunction order.

                                          I

      The threshold question in this appeal is whether the historical fact of S.E.H.’s

community supervision disqualifies him from obtaining an expunction remedy

available to people who were released without any resulting final conviction, but

that excludes people who avoided final conviction by successfully completing

community supervision.4 The TEA argues that S.E.H. cannot escape the historical

facts that he pleaded guilty and received court-ordered community supervision, thus

rendering him ineligible for expunction. S.E.H. responds that, as a legal matter, he




4
      See id.; see also id. art. 42A.001(1) (for purposes of chapter 42A,
      “‘Community 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.”).

                                          3
was never placed on community supervision because the prosecution was void from

the outset (or, as the relevant precedents put it, “void ab initio”).

      In Ex parte Lo, the Court of Criminal Appeals held that the statute under

which S.E.H. was convicted, Section 33.021(b) of the Penal Code, was

unconstitutionally overbroad because it prohibited a wide array of constitutionally

protected speech and was not narrowly drawn to achieve only the legitimate

objective of protecting children from sexual abuse.5 In the wake of that decision, the

Court had opportunities to address the posture of prior prosecutions under the

invalidated statute. It stated that when a statute is adjudged to be unconstitutional, it

is “as if it had never been”—“void from its inception” and “stillborn.”6 A petition

for habeas corpus in that circumstance was framed by the Court as seeking “relief

for a conviction of a non-crime under a statute that has already been held to be

invalid.”7 The relief rendered in that scenario was a judgment of acquittal, based on




5
      424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
6
      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), and Ex parte
      Bockhorn, 138 S.W. 706, 707 (Tex. Crim. App. 1911)); see also Ex parte
      Siebold, 100 U.S. 371, 376 (1880) (“An unconstitutional law is void, and is as
      no law.”); accord Montgomery v. Louisiana, 136 S. Ct. 718, 730–31 (2016).
7
      Smith, 463 S.W.3d at 896.

                                            4
the characterization of such convictions as “facially unconstitutional,” “‘stillborn,’”

and “void ab initio.”8

      Against this legal background, we must determine whether S.E.H. is eligible

to have the records and files relating to his arrest expunged under Article 55.01(a)(2)

of the Code of Criminal Procedure. As relevant to this case, the expunction statute

provides:

             Art. 55.01. RIGHT TO EXPUNCTION. (a) 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 . . . .
             ....

The TEA contends that this statute renders S.E.H. ineligible for expunction remedies

because, as a matter of historical fact, there was a court-ordered community


8
      Id. at 895–96 (quoting Reyes, 753 S.W.2d at 383); see also Ex parte Chance,
      439 S.W.3d 918, 919 (Tex. Crim. App. 2014) (Cochran, J., concurring) (“For
      this reason, a person may always obtain relief from an indictment or a
      conviction based on a penal statute that has been previously declared
      unconstitutional. He may obtain relief in a pretrial motion or writ; he may
      obtain relief on direct appeal; he may obtain relief in a habeas corpus
      proceeding, and it matters not whether he had ever previously objected to the
      statute or its application to him. The unconstitutional statute has disappeared
      in a puff of smoke. No one can be convicted for a non-existent crime and no
      prior conviction based upon that unconstitutional statute is valid.”).

                                          5
supervision under Chapter 42A for his offense. We are unpersuaded that the legal

analysis is that simple. We must consider the context of the entire statute,9 which

contains no indication that its application should not account for both historical facts

and the legal significance of those events.10 The expunction statute does not

foreclose applications based on the understanding that when a prosecution was void

ab initio, any resulting court-ordered community supervision also was void ab

initio,11 just as any resulting conviction was likewise void ab initio.12 This legally


9
      See State v. T.S.N., 547 S.W.3d 617, 620 (Tex. 2018); Jones v. Fowler, 969
      S.W.2d 429, 432 (Tex. 1998) (per curiam) (“we must read the statute as a
      whole and interpret it to give effect to every part”).
10
      See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of
      United States Federal Courts in Interpreting the Constitution and Laws, in
      A MATTER OF INTERPRETATION 23 (1997) (“A text should not be construed
      strictly, and it should not be construed leniently; it should be construed
      reasonably, to contain all that it fairly means.”).
11
      See Nix v. State, 65 S.W.3d 664, 668 (Tex. Crim. App. 2001) (“If the original
      judgment imposing probation was void, then the trial court would have no
      authority to revoke probations, since, with no judgment imposing probation
      (because it is a nullity), there is nothing to revoke.”); cf. Harris Cty. Dist.
      Attorney’s Office v. D.W.B., 860 S.W.2d 719, 722 (Tex. App.—Houston [1st
      Dist.] 1993, no writ) (affirming expunction order after habeas corpus relief
      was granted in a misdemeanor case, despite the fact that petitioner had
      deferred adjudication, when the relief consisted of an order granting a new
      trial restoring the case to its position before the former trial, to the effect that
      “there was never valid court-ordered probation”).
12
      Smith, 463 S.W.3d at 896; accord Ex parte E.H., No. 02-17-00419-CV, 2018
      WL 4050556, at *6–7 (Tex. App.—Fort Worth Aug. 16, 2018, pet. filed); Ex
      parte C.D., No. 12-17-00309-CV, 2018 WL 3569838, at *3 (Tex. App.—
      Tyler July 25, 2018, pet. filed) (mem. op.).

                                           6
informed interpretation does no violence to the expunction statute’s plain text, and

it aligns with the self-evident statutory policy objective of authorizing expunction

when a person has been released under circumstances in which there has been and

will be no resulting final conviction—except when the only reason for avoiding a

final conviction was the successful completion of court-ordered community

supervision.13

      Expunction is a statutory privilege, and the Legislature could withhold it from

people who engaged in the conduct of soliciting minors online yet escaped criminal

prosecution due to the constitutional defect found in Ex parte Lo. The Legislature

has not done so. Instead, the expunction remedy is available to people acquitted of




13
      See generally TEX. CODE CRIM. PROC. art. 55.01(a)(2) (restricting application
      of expunction remedy to circumstances when prosecution against the person
      is no longer possible because the limitations period has expired, or a
      significant time has passed since the arrest without the filing of a new charge
      arising from the same transaction and the records are not required for use in
      connection with any other felony charge or other criminal investigation or
      prosecution).


                                         7
crimes,14 and acquittal is the remedy received by those who were wrongly convicted

under Section 33.021(b) due to its constitutional infirmities.15

      Statutory construction is a holistic endeavor.16 Our interpretation applies the

expunction statute consistently to all prosecutions under an unconstitutional statute

regardless of whether, as a matter of procedural history, the legally acquitted

petitioner had been convicted or had received probation instead. The statute does not

require otherwise. In both circumstances, void legal consequences from void statutes

are treated as void from their very inception. Under the expunction statute as

currently written, an episode of community supervision imposed pursuant to a void

statute must be treated just as it would be treated in other legal circumstances: as a

legal nullity, vanished in a puff of smoke,17 stuffed down the memory hole just like

the expunction of official documents that the Legislature has authorized for people

convicted then acquitted under an unconstitutional statute.

      Pursuant to article 55.01(a)(2) of the Code of Criminal Procedure, we hold

that S.E.H., a person who was arrested for commission of a felony, is entitled to have


14
      See id.
15
      Smith, 463 S.W.3d at 895–96.
16
      See United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484
      U.S. 365, 371, 108 S. Ct. 626, 630 (1988).
17
      Ex parte Chance, 439 S.W.3d at 919 (Cochran, J., concurring).


                                          8
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.18

                                          II

      In its remaining issue, the TEA challenges the scope of the expunction order

as overbroad. It asks us to “confirm that the trial court’s understanding of the scope

of expunction is erroneously broad,” and that the expunction statute allows it “to

retain the documents in its files describing S.E.H.’s relevant conduct once those

documents have been redacted to remove all references to S.E.H.’s arrest.”




18
      We also reject the TEA’s argument that S.E.H. is not entitled to expunction
      because Article 55.01(a)(2)(A)(ii) required him to prove and the trial court to
      find that his indictment was dismissed. At the time of the expunction petition,
      prosecution of S.E.H. for the offense for which he was arrested was no longer
      possible because (among other reasons) the limitations period has expired. See
      TEX. CODE CRIM. PROC. arts. 12.01(7), 55.01(a)(2)(B). Further, the TEA’s
      complaints about S.E.H.’s pleading deficiencies for failure to include
      complete information as required by Article 55.02, Section 2(b)(1) (e.g.,
      petitioner’s full driver’s license number and social security number; date,
      county, and municipality of arrest; and name of arresting agency) do not
      implicate the sufficiency of the evidence to support the expunction order, see
      TEX. R. APP. P. 33.1(d), and they have been waived due to failure to raise them
      before the judgment was signed. TEX. R. CIV. P. 90. To the extent the order
      failed to include S.E.H.’s social security number and date of arrest, see TEX.
      CODE CRIM. PROC. art. 55.02, § 3(b), we conclude that the TEA has failed to
      demonstrate that these are reversible errors. See TEX. R. APP. P. 44.1(a).


                                          9
       These issues were not presented or preserved in the trial court. The TEA did

not challenge the language of the expunction order by suggesting what it ought to

say differently. The TEA did not present evidence or authority to support an

argument that it could satisfy the expunction statute, which provides a remedy that

consists of expunging “all records and files relating to the arrest,” merely by

redacting all references to S.E.H.’s arrest. An “incident report” generated by the

Sugar Land Police Department was discussed at the expunction hearing as a

document that TEA wanted to “keep” because it described the sting operation and

“conduct that occurred,” but that document also discussed the execution of an arrest

warrant. Other than that discussion, the TEA made no record of what other

documents it sought to exclude from the scope of the expunction order, or what

specific redactions to any such documents it proposed to satisfy the expunction

statute.

       At the conclusion of the hearing, the trial judge stated that the “incident

report . . . constitutes part of the arrest records and constitutes an expungeable item.”

He then signed the proposed expunction order in the form that had been agreed by

S.E.H.’s counsel and the Fort Bend County district attorney’s office.

       To the extent the TEA now argues that particular documents in the record

described S.E.H.’s conduct without referencing his arrest, no ruling was requested

to determine whether any other particular documents might not be subject to



                                           10
expunction. And as acknowledged by S.E.H.’s brief, the TEA still may have

procedural avenues by which it can contest the applicability of the expunction order

to specific documents.19 But the relief requested in this appeal—instructions that the

trial court modify the expunction order to allow the TEA to maintain documents with

redactions of references to S.E.H.’s arrest—was not requested in the trial court.

Accordingly, on the record before us, we overrule the TEA’s challenge to the scope

of the expunction order,20 and we express no opinion about whether any particular

documents must be expunged under that order as it stands.

                                     *    *     *

      The trial court did not err by granting S.E.H.’s petition for expunction.

Accordingly, we affirm the order.



                                              Michael Massengale
                                              Justice

The panel consisted of Chief Justice Radack and Justices Brown and Lloyd.
En banc reconsideration was granted. TEX. R. APP. P. 49.7.



19
      Br. at 17 (“[T]he Agency might seek a declaratory judgment. Or it might fail
      to return the records to the trial court, risking being held in contempt and
      having the employees involved prosecuted criminally for failing to comply
      with the expunction order.” (footnote omitted)).
20
      See TEX. R. APP. P. 33.1(a).


                                         11
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 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.




                                        12
