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 Texas Court of Criminal Appeals has expressly declared that section

33.021(b) of the Texas Penal Code (“online solicitation of a minor”),1 the statutory


1
      TEX. PENAL CODE ANN. § 33.021(b) (Vernon 2017).
provision under which appellant, S.E.H., was convicted, is facially unconstitutional.

See Ex Parte Lo, 424 S.W.3d 10, 27 (Tex. Crim. App. 2013). An unconstitutional

statute is “void from its inception,” and “when a statute is adjudged to be

unconstitutional, it is as if it had never been.” 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)). In other words, “an unconstitutional statute in the criminal area is to

be considered no statute at all.” Id. (quoting Reyes, 753 S.W.2d at 383). As such, a

judgment entered against a defendant for violation of an unconstitutional statute is

also void. See Reyes, 753 S.W.2d at 383 (“[G]enerally a void law is no law and

confers no rights, bestows no power on anyone and justifies no act performed under

it.”) (citing Sharber v. Florence, 113 S.W.2d 604 (Tex. 1938)). “[W]here an original

judgment imposing [community supervision] is void, there is no judgment imposing

[community supervision], and, accordingly, nothing to revoke.” Martinez v. State,

194 S.W.3d 699, 701 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Nix v.

State, 65 S.W.3d 664, 668–69 (Tex. Crim. App. 2001)).

      Appellee, S.E.H., was convicted of the offense of online solicitation of a

minor under section 33.021(b) of the Texas Penal Code, which, at the time, provided

as follows:

       (b) A person who is 17 years of age or older commits an offense if,
           with the intent to commit an offense listed in Article 62.001(5)(A),
           (B), or (K), Code of Criminal Procedure, the person, over the
           Internet, by electronic mail or text message or other electronic
                                         2
           message service or system, or through a commercial online
           service, intentionally:

             (1) communicates in a sexually explicit manner with a minor; or

             (2) distributes sexually explicit material to a minor.

TEX. PENAL CODE ANN. § 33.021(b) (Vernon 2017). In Ex Parte Lo, the court of

criminal appeals held that this provision is facially unconstitutional. 424 S.W.3d at

27.

      Because the statutory provision under which S.E.H. was convicted is void, the

judgment in which the trial court imposed community supervision upon him is also

void. See Smith, 463 S.W.3d at 895; Martinez, 194 S.W.3d at 701. Thus, there is

no logical basis to hold that the court below erred in granting S.E.H. an expunction

of his conviction. The fact that the trial court had placed S.E.H. on community

supervision is of no consequence.

      Respectfully, the dissent’s interpretation of the expunction statute2 would lead

to the ultimate absurd result: a situation in which it would impose upon S.E.H. the

lasting stigma of a felony conviction that is based upon a void judgment. Moreover,

to reach such a result, this Court would have to overrule the binding precedent of

Harris County District Attorney’s Office v. D.W.B., 860 S.W.2d 719 (Tex. App.—

Houston [1st Dist.] 1993, no pet.). However, there is a “strong presumption” against



2
      TEX. CODE CRIM. PROC. ANN. art. 55.01(a) (Vernon 2018).
                                          3
overruling precedent. Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex. 1979). Under

the rule of stare decisis, we should overrule a previous holding of this Court only for

very important reasons and after careful deliberation. And it should go without

saying that we should not overrule binding precedent to reach a patently erroneous

result.

          Accordingly, I concur in the judgment of the Court.




                                                Terry Jennings
                                                Justice



The panel consisted of Chief Justice Radack and Justices Brown and Lloyd.

En banc reconsideration was granted. TEX. R. APP. P. 49.7.

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.




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