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holding that an appellant who establishes the appellate court's jurisdiction under rule 30 "must then establish error from the face of the record to prevail in the restricted appeal"
Summary of this case from Spanton v. BellahOpinion
No. 18-0932
05-15-2020
EX PARTE E.H.
Mark W. Bennett, for Respondent E.H. Jeffrey C. Mateer, Bill Davis, Austin, W. Kenneth Paxton Jr., Atty. Gen., Mia Gisele Settle-Vinson, Houston, Kyle D. Hawkins, Jeanine C. Hudson, for Petitioner Texas Department of Public Safety.
Mark W. Bennett, for Respondent E.H.
Jeffrey C. Mateer, Bill Davis, Austin, W. Kenneth Paxton Jr., Atty. Gen., Mia Gisele Settle-Vinson, Houston, Kyle D. Hawkins, Jeanine C. Hudson, for Petitioner Texas Department of Public Safety.
Justice Boyd delivered the opinion of the Court, in which Chief Justice Hecht, Justice Green, Justice Guzman, Justice Lehrmann, Justice Devine, Justice Busby, and Justice Bland joined.
The Texas Department of Public Safety filed this restricted appeal from a trial-court order granting E.H.'s petition for expunction of arrest records under article 55.01 of the Code of Criminal Procedure. The court of appeals agreed with the trial court and dismissed the Department's appeal, holding that the lack of any error on the face of the record deprived the court of jurisdiction. We agree with both courts that E.H. qualifies for expunction, but we disagree with the court of appeals' conclusion that the facial-error requirement is jurisdictional. We therefore reverse the court of appeals' judgment and reinstate the trial court's judgment.
I.
Background
In August 2007, E.H. was indicted on two counts of felony online solicitation of a minor under former penal code section 33.021(b). E.H. pleaded guilty to both counts in exchange for five years' deferred adjudication community supervision and a $2,000 fine. See TEX. CODE CRIM. PROC. art. 42A.101 –.111 (addressing deferred adjudication community supervision). E.H. completed his community supervision in May 2013. Five months later, the Court of Criminal Appeals declared former section 33.021(b) facially unconstitutional because it prohibited constitutionally protected speech and was not narrowly drawn to impose the least restrictive means to achieve the government's compelling interest in protecting children from sexual abuse. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
At the time, the code provided:
A person who is 17 years of age or older commits an offense if, with the intent to arouse or gratify the sexual desire of any person, the person, over the Internet, by electronic mail or text message or other electronic 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.
See Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, 2007 Tex. Gen. Laws 1167, 1167–68 (current version at Tex. Penal Code § 33.021(b) ).
After Lo , E.H. applied for a writ of habeas corpus seeking relief from the order that placed him on community supervision. See TEX. CODE CRIM. PROC. art. 11.072 (addressing procedure for habeas applications in community-supervision cases). The trial court granted E.H.'s application, dismissed the indictment against him, and declared the community-supervision order void. E.H. then filed a petition for expunction, which the court granted.
Others who were indicted under former section 33.021(b) have also sought habeas relief. See, e.g. , Tex. Educ. Agency v. S.E.H. , 571 S.W.3d 372, 373 (Tex. App.—Houston [1st Dist.] 2018, pet. pending) ; Ex parte C.D. , No. 12-17-00309-CV, 2018 WL 3569838, at *1 (Tex. App. —Tyler July 25, 2018, pet. pending) (mem. op.); Ex parte J.H. , No. 02-17-003338-CV, 2018 WL 4024757, at *1 (Tex. App.—Fort Worth Aug. 23, 2018, pet. pending) (mem. op.).
Nearly six months after the court granted expunction, the Department filed this restricted appeal arguing that E.H. does not qualify for expunction because the criminal court had entered an order placing him on deferred adjudication community supervision. Ex parte E.H. , 582 S.W.3d 445, 446–47 (Tex. App.—Fort Worth 2018). The court of appeals disagreed, holding that E.H. is entitled to expunction because the statute under which he was indicted and the indictment itself were void and the community-supervision conditions imposed on him "disappeared as a result of the trial court's grant of habeas corpus relief." Id. at 453–54. Finding no error apparent on the face of the record, the court dismissed the Department's restricted appeal for want of jurisdiction. Id. at 454. We granted the Department's petition for review.
II.
Expunction
We agree with the trial court and the court of appeals that E.H. established his eligibility for expunction of his arrest records. An expunction order requires governmental agencies to return, remove, delete, or destroy all records of a person's arrest and generally permits the person to deny the occurrence of the arrest and the existence of the expunction order. See TEX. CODE CRIM. PROC. art. 55.02 –.03. Although the expunction statute appears within the code of criminal procedure, an expunction proceeding is civil in nature. State v. T.S.N. , 547 S.W.3d 617, 619 (Tex. 2018). Because expunction is a statutory privilege and not a constitutional or common law right, In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014), courts must enforce the statutory requirements and "cannot add equitable or practical exceptions ... that the legislature did not see fit to enact," In re Geomet Recycling LLC , 578 S.W.3d 82, 87 (Tex. 2019). We review a trial court's ruling on an expunction petition under an abuse-of-discretion standard. But to the extent the ruling depends on a question of law, we review it de novo because a "trial court has no ‘discretion’ in determining what the law is or applying the law to the facts." Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992).
At the time of E.H.'s expunction hearing in 2017, article 55.01(a)(2) provided that a person who is arrested but not tried for an offense is entitled to an expunction order if
A person who is tried for the offense is generally entitled to expunction if the person was acquitted or, if convicted, was subsequently pardoned "or otherwise granted relief on the basis of actual innocence with respect to that offense." Tex. Code Crim. Proc. art. 55.01(a)(1) ; see T.S.N. , 547 S.W.3d at 622 ("Under (a)(1), the acquittal or pardon is the only prerequisite to expunction.").
(1) "the person has been released";
(2) "the charge, if any, has not resulted in a final conviction and is no longer pending"; and
(3) "there was no court-ordered community supervision under Chapter
42A for the offense, unless the offense is a Class C misdemeanor";
"provided that"
(4) the indictment or information charging the person with the offense either
a. was not timely presented within particular deadlines following the arrest, or
b. was timely presented but was dismissed or quashed for particular reasons, including that it "was void"; or
(5) "prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired."
Act of May 29, 2015, 85th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Gen. Laws 2321, 2373 (amended 2017, 2019) (current version at TEX. CODE CRIM. PROC. art. 55.01(a)(2) ).
The legislature has amended the expunction statute numerous times. The Department argues that the trial court and court of appeals applied the incorrect version of the statute, but it concedes that the substantive requirements have not changed and the particular applicable version does not alter our analysis.
The Department argues that E.H. cannot satisfy the statute's third requirement—that "there was no court-ordered community supervision under Chapter 42A for the offense"—because the criminal court had, in fact, ordered E.H. to community supervision. E.H. does not dispute that the criminal court entered an order placing him on community supervision under chapter 42A for the offense, but he argues that order was void from the time it was entered because the statute under which he was indicted was unconstitutional. The Department does not dispute that the order was void, but argues that, nevertheless, as a matter of historical fact, "there was court-ordered community supervision" for E.H.'s offense. See Ex parte Fournier , 473 S.W.3d 789, 793 (Tex. Crim. App. 2015) (holding that persons convicted under former section 33.021(b) could not establish "actual innocence" because the "conduct on which the criminal prosecution was based still exists as a matter of historical fact"). We must decide whether the historical reality that a court ordered E.H. to community supervision disqualifies him for expunction when, as a legal reality, that order was a nullity from inception.
In another case decided today, we address the issue the Court of Criminal Appeals addressed in Fournier : whether a person who was convicted under former section 33.021(b) was later granted habeas relief on the ground that he was "actually innocent." See In re Lester , 602 S.W.3d 469 (Tex. 2020). Here, the issue is not whether E.H. was actually innocent, but whether "there was no court-ordered community supervision under Chapter 42A" for his offense.
The dissent believes that "whether a court order was valid or constitutional has nothing to do with whether it was ordered by a court" because "all court orders are ‘court-ordered,’ both the valid and the invalid." Post at 500. But the court order sentencing E.H. to community supervision was null and void because the underlying criminal statute was void ab initio . Because the law treats unconstitutional statutes and all proceedings thereunder as if they never existed, there was no court-ordered community supervision as a matter of law.
The Department offers several arguments in support of its proposed construction. It notes that to obtain habeas relief from a community-supervision order, as E.H. did here, the applicant "must be, or have been, on community supervision." TEX. CODE CRIM. PROC. art. 11.072 § 2(b). By requesting and obtaining habeas relief, the Department reasons, E.H. conceded that he had been on community supervision and thus that "there was court-ordered community supervision for his offense." E.H. concedes that he had been on community supervision, but the very purpose of his request for habeas relief under article 11.072 was to challenge the legal validity of the order that placed him there. See id. (noting that the habeas application "must challenge the legal validity" of the conviction, the order imposing community supervision, or the conditions of community supervision). Article 11.072, in other words, requires the historical reality of community supervision as a basis for challenging the legal validity of the order that imposed it. But unlike article 11.072, he argues, the expunction statute ties the legal reality to the historical reality by requiring that "there was no court-ordered community supervision." Id. art. 55.01(a)(2) (emphasis added). We agree with E.H. that article 11.072 does not support the Department's proposed construction of article 55.01(a)(2).
The Department also notes that the expunction statute does not expressly except community-supervision orders that are based on offenses charged under an unconstitutional statute or are otherwise null and void. Instead, it turns simply on whether "there was" court-ordered community supervision. Id. Citing numerous other Texas statutes, the Department argues that the phrase "there was" necessarily refers to factual as opposed to legal realities. But some of those statutes appear to disprove the Department's point. For example, one statute requires courts to vacate an arbitration award if "there was no agreement to arbitrate." TEX. CIV. PRAC. & REM. CODE § 171.088(a)(4). A second entitles a person to habeas relief if the person's petition states that "there was no sufficient cause for requiring bail." TEX. CODE CRIM. PROC. art. 11.24. And a third enables a person to avoid suspension of the person's driver's license by showing that "there was a motor vehicle liability insurance policy covering the motor vehicle." TEX. TRANSP. CODE § 601.333(a)(1). Although we need not and do not decide the issues here, we could certainly question the Department's assumption that these statutes would be satisfied even if the "agreement to arbitrate" was illegal or otherwise void, the petition challenging sufficient cause for bail had been stricken on legal grounds, or the liability insurance policy was for some reason legally invalid and unenforceable. In any event, it is one thing to require that "there was" something that may be completely factual in nature, such as "an emergency," "good cause," or "an error in payment," but quite another to require that "there was" something "court-ordered," which necessarily raises both factual and legal implications. In short, we cannot agree with the Department that the phrase "there was" necessarily refers solely to a factual reality regardless of the legal reality of that fact.
See, e.g. , Tex. Civ. Prac. & Rem. Code §§ 74.106(a)(2) (stating that a health care provider's failure to disclose risks may not be negligent if "there was an emergency"), 82.005(a)(1) (requiring product-liability plaintiff to prove "there was a safer alternative design"), 171.088(a)(4) (requiring court to vacate arbitration award if "there was no agreement to arbitrate"); Tex. Code Crim. Proc. arts. 11.24 (entitling person to habeas relief if petition states "there was no sufficient cause for requiring bail"), 18.13 (requiring magistrate to discharge defendant if magistrate is not satisfied "that there was good ground for the issuance of the warrant"), 18A.358(c)(1) (requiring suppression motion be made before hearing unless "there was not an opportunity to make the motion"), 42.01 § 1(12) (requiring judgment to reflect county where prosecution originated if "there was a change of venue"); Tex. Educ. Code § 51.236(a) (requiring finding that "there was reasonable cause to believe that the person has willfully disrupted the orderly operation of the campus or facility"); Tex. Est. Code §§ 306.002(a)(2)(B)(iii) (requiring court to grant estate administration if "there was no good cause" for executor's failure to timely present will for probate), 405.005(2) (permitting executor's closing report verifying that "there was property remaining on hand after payment of debts"); Tex. Fam. Code §§ 2.302(1) (providing that marriage's validity is not affected by officiant's lack of authority if "there was a reasonable appearance of authority"), 58.0052(b-3)(4) (referring to investigation concluding that "there was a reason to believe that abuse or neglect occurred"), 155.004(a)(3) (providing that court loses jurisdiction if another court incorrectly understood that "there was no court of continuing, exclusive jurisdiction"), 262.105(b)(1)(A) (requiring evidence that "there was an immediate danger to the physical health or safety of the child"), (2)(B) (requiring evidence that "there was not time ... for a full adversary hearing"), .201(g)(1) (requiring court to find that "there was a danger to the physical health or safety of the child"), 264.5032(a)(3) (referring to investigation concluding that "there was reason to believe that abuse or neglect occurred"); Tex. Gov't Code §§ 531.993(c) (requiring ombudsman's report to determine whether "there was wrongdoing or negligence"), 2001.175(c) (permitting court to allow additional evidence if "there were good reasons for the failure to present" the evidence earlier); Tex. Health & Safety Code §§ 81.050(g) (permitting court to assess costs if "there was not reasonable cause" for request to order testing), 171.006(a)(1)(D)(ii) (requiring physician to report if "there was "insufficient time to obtain consent"); Tex. Hum. Res. Code § 44.003(c)(2) (requiring contractor to substantiate that "there were sufficient preparations in the development of the services offered"); Tex. Ins. Code §§ 34.002(d) (defining "substantially justified" to mean "there was a reasonable basis in law or fact"), 843.3385(e) (permitting HMO to recover overpayment if it determines "that there was an error in payment of the claim"), 1106.002(a)(2) (permitting reinstatement of insurance policy if "there was not a default in the payment of premiums"), 1111A.004(a)(1) (permitting commissioner to revoke license if "there was a material misrepresentation in the application for the license"), 4002.008(d) (requiring report to indicate whether "there was any disparity" in examination pass rate); Tex. Lab. Code § 407A.404(b)(2) (permitting revocation of approval if "there was a material misrepresentation" in application); Tex. Transp. Code § 601.333(a)(1) (permitting driver whose license was suspended to provide evidence that "there was a motor vehicle liability insurance policy covering the motor vehicle").
See, e.g. , Kreit v. Brewer & Pritchard, P.C. , 530 S.W.3d 231, 242 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (holding that section 171.088(a)(4) applies when arbitration agreement existed but party seeking to vacate arbitration award argued he did not enter into agreement in his individual capacity); Women's Reg'l Healthcare, P.A. v. FemPartners of N. Tex., Inc. , 175 S.W.3d 365, 368 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that section 171.088(a)(4) would apply when party seeking to vacate arbitration award challenges legality of arbitration agreement, although not when it challenges legality of entire contract).
The Department also argues that the statute's structure confirms the Department's proposed construction. As noted, a person cannot obtain expunction under article 55.01(a)(2) simply by making the initial showing that (1) the person has been released; (2) the charge, if any, has not resulted in a final conviction and is no longer pending; and (3) there was no court-ordered community supervision under Chapter 42A for the offense. Instead, a person who makes that initial showing is entitled to expunction "provided that " the person also shows that the indictment or information either was not timely presented or, if presented, "was dismissed or quashed" for one of several reasons, including that "the indictment or information was void." TEX. CODE CRIM. PROC. art. 55.01(a)(2)(A)(i)–(ii) (emphasis added). As the Department explains, the requirement "that the indictment or information was void" is separate and independent from the requirement that "there was no court-ordered community supervision," and the person seeking expunction must show both. According to the Department, the requirement that "there was no court-ordered community supervision" would be meaningless and superfluous if it did not include legally invalid court orders because a showing that the indictment or information was void necessarily also shows that "there was no [legally valid] court-ordered community supervision." So, the Department contends, to give meaning to both requirements we must construe the statute to require that "there was no court-ordered community supervision" regardless of whether the court order was valid or void.
We agree with the Department that when a court orders community supervision based on a void indictment, the community-supervision order is itself necessarily also void. So under E.H.'s and the court of appeals' construction, a person who seeks expunction under article 55.02(a)(2) on the ground that the indictment was void will necessarily also establish that "there was no court-ordered community supervision." But we do not agree that this construction renders either requirement wholly superfluous. The statute permits a person who makes the initial showing to obtain expunction on several grounds other than that the indictment or information was void, including that (1) the indictment or information was not timely presented, (2) the person completed a veterans treatment court program, a mental health court program, or a pretrial intervention program, (3) the indictment was presented "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 (4) "prosecution of the person for the offense for which the person was arrested is no longer possible because the limitations period has expired." Id. art. 55.01(a)(2)(d) & (e). Under E.H.'s and the court of appeals' construction, a person who seeks expunction on any of these grounds must still show that "there was no court-ordered community supervision," and may do so by showing that the order was void for some reason other than that the indictment itself was void.
The Department's construction, by contrast, renders the phrase "court-ordered" superfluous in all circumstances. Under the Department's approach, the statute requires only that "there was no ... community supervision under Chapter 42A," deleting the phrase "court-ordered" as if it meant nothing at all. Yet under Chapter 42A, community supervision is "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." Id. art. 42A.001(1) (emphases added). By definition, community supervision under Chapter 42A must be court-ordered. See City of Rockwall v. Hughes , 246 S.W.3d 621, 625 (Tex. 2008) ("We use definitions prescribed by the Legislature and any technical or particular meaning the words have acquired.") (citing TEX. GOV'T CODE § 311.011(b) ). E.H. contends that "for something to be court ordered, there must be a valid court order," and in the absence of a valid community-supervision order, "there was no court-ordered community supervision."
We agree. Article 55.01(a)(2) required E.H. to show not just that "there was no community supervision," but that "there was no court-ordered community supervision under Chapter 42A for the offense ." TEX. CODE CRIM. PROC. art. 55.01(a)(2) (emphases added). Giving effect as we must to all of the statute's words, we read the statute to require a showing not just that E.H. did not serve under community supervision, but that no court order placed E.H. in community supervision for committing a criminal offense. By including the references to a court order and an offense, the statute necessarily incorporates legal realities as well as historical facts.
The dissent argues that "community supervision" and "court-ordered community supervision" mean the "exact same thing." Post at 499. That statement of course is true (as explained, all community supervision must be court-ordered), but its truth begs the question of why the legislature would expressly refer to "court-ordered" community supervision when it could have referred only to community supervision. We cannot just write off the legislature's chosen language as "linguistic redundancy." Post at 499. As the dissent highlights, and as our opinion thoroughly explains, "we presume the Legislature says what it means and means what it says." Post at 500 (citing Cadena Comercial USA Corp. v. Tex. Alcoholic Bev. Comm'n , 518 S.W.3d 318, 337 (Tex. 2017) ). Because the statute expressly refers to "court-ordered" community supervision, we must give that language meaning, as we do here by requiring that the court order be valid and effective.
As the Department itself agrees, those legal realities do not exist in E.H.'s case. The statute under which E.H. was arrested has been declared unconstitutional, the indictment against him has been dismissed, and the court order placing him in community supervision has been vacated. As a matter of law, the statute was " ‘void from its inception ... as if it had never been,’ " and "is to be considered no statute at all." 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. 1998) ). In the absence of the statute, no "offense" ever occurred. See Offense , BLACK'S LAW DICTIONARY (11th ed. 2019) ("A violation of the law; a crime ...."). And like the statute, both the indictment and the court order imposing community supervision were void ab initio and as a legal reality, never existed at all. See Fournier , 473 S.W.3d at 790 (setting aside judgments in light of Lo ); Ex parte Chance , 439 S.W.3d 918, 918 (Tex. Crim. App. 2014) (per curiam) (same); Lo , 424 S.W.3d at 27 ("We remand the case to the trial court to dismiss the indictment."); Nix v. State , 65 S.W.3d 664, 667–68 (Tex. Crim. App. 2001) (explaining that a "trial court's judgment is accorded no respect" if the court lacked power to render it because it is a "void judgment" and a " ‘nullity’ ") (quoting Ex parte Patterson , 969 S.W.2d 16, 19 (Tex. Crim. App. 1998) ); Reyes , 753 S.W.2d at 383 ("An unconstitutional statute is void from its inception and cannot provide a basis for any right or relief."); Sharber v. Florence , 131 Tex. 341, 115 S.W.2d 604, 607 (1938) ("The general rule is that a void statute is no law, and therefore cannot confer any rights, bestows no power on any one, and justifies no acts performed under it.") (citations omitted); see also Vacate , BLACK'S LAW DICTIONARY (11th ed. 2019) ("To nullify or cancel; make void; invalidate ...."). As the United States Supreme Court explained long ago, an "unconstitutional law is void, and is no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void." Ex parte Siebold , 100 U.S. 371, 376, 25 L.Ed. 717 (1880). We conclude that the trial court did not err by granting E.H.'s petition for expunction because, as a matter of law, "there was no court-ordered community supervision under Chapter 42A for the offense" for which he was arrested.
The dissent quotes our previous explanation that "when a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it, even though the government may no longer constitutionally enforce it" to support its argument that the statute should not be treated as void ab initio . Post at –––– (quoting Pidgeon v. Turner , 538 S.W.3d 73, 88 n.21 (Tex. 2017) ). But the dissent ignores the context of this quote—the full footnote merely explains that the petitioners had standing to seek judicial review because the laws were still in the books. We do not deny that laws declared unconstitutional by a court remain in the books until repealed by the legislature. Indeed, written laws do not simply vanish from existence once declared unconstitutional. But an unconstitutional law that is factually still in the books is nevertheless legally unenforceable as if it never existed at all.
III.
Restricted Appeal
Having reached the same conclusion, the court of appeals dismissed the Department's restricted appeal, holding that lack of error on the face of the record deprived the court of jurisdiction. 582 S.W.3d at 448. We do not agree.
An agency protesting an expunction order "may appeal the court's decision in the same manner as in other civil cases." TEX. CODE CRIM. PROC. 55.02, § 3(a). Generally, a party who desires to appeal a trial court judgment must file a notice of appeal within thirty days after the judgment is signed. TEX. R. APP. P. 26.1. A timely filed motion for new trial, motion to modify the judgment, motion to reinstate, or a proper request for findings of fact and conclusions of law extends the deadline to ninety days after the judgment is signed. TEX. R. APP. P. 26.1(a). But if the party "did not participate—either in person or through counsel—in the hearing that resulted in the judgment complained of" and did not timely file a post-judgment motion, request for findings of fact and conclusions of law, or file a notice of appeal within ninety days, the party may pursue a restricted appeal by filing a notice of appeal within six months after the judgment or order is signed. TEX. R. APP. P. 30. A notice of restricted appeal must state that these requirements are met. TEX. R. APP. P. 25.1(d)(7).
Restricted appeals under rule 30 replaced the former writ-of-error practice. TEX. R. APP. P. 30 cmt.; see Alexander v. Lynda's Boutique , 134 S.W.3d 845, 849 (Tex. 2004) ("The writ of error procedure is now the restricted appeal procedure in Texas Rules of Appellate Procedure 25.1, 26.1(c), and 30."). Review by restricted appeal affords an appellant the same scope of review as an ordinary appeal. Norman Commc'ns v. Tex. Eastman Co. , 955 S.W.2d 269, 270 (Tex. 1997) (per curiam) (discussing writ-of-error review). To "sustain" a restricted appeal, the filing party must show that:
(1) he filed notice of the restricted appeal within six months after the judgment was signed;
(2) he was a party to the underlying lawsuit;
(3) he did not participate in the hearing that resulted in the judgment complained of, and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and
(4) error is apparent on the face of the record.
Pike-Grant v. Grant , 447 S.W.3d 884, 886 (Tex. 2014) (per curiam).
The fourth requirement derives from case law and is not included within the rule's requirements. See Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture , 811 S.W.2d 942, 943 (Tex. 1991) (citing Brown v. McLennan Cty. Children's Protective Servs. , 627 S.W.2d 390, 392 (Tex. 1982), as authority for fourth requirement). Its history is murky, but it generally derived from both English and Spanish appellate practices. See Seguin v. Maverick , 24 Tex. 526, 533–35 (1859) (explaining the error must appear on the face of the decree or pleadings and that the "evidence at large[ ] cannot be ‘gone into’ "); see also Texaco, Inc. v. Cent. Power & Light Co. , 925 S.W.2d 586, 588–89 (Tex. 1996) (discussing history of "anachronistic" writ-of-error practice). We have specifically recognized that the first requirement (that the party timely file a notice of appeal within six months) and the third (that the party did not participate in the hearing) are jurisdictional. Pike-Grant , 447 S.W.3d at 887 (Tex. 2014) (treating no-participation requirement as jurisdictional); Quaestor Invs., Inc. v. State of Chiapas , 997 S.W.2d 226, 227 (Tex. 1999) ("The six-month time limit is mandatory and jurisdictional."); Texaco , 925 S.W.2d at 588 (treating no-participation requirement as jurisdictional). But we have been less clear about the fourth requirement. We have suggested in some cases that all four requirements are jurisdictional, broadly stating that a restricted appeal is "available" only if all four are met, Gold v. Gold , 145 S.W.3d 212, 213 (Tex. 2004) (per curiam), and that all four are "necessary for review by writ of error," Quaestor , 997 S.W.2d at 227 ; see also Stubbs v. Stubbs , 685 S.W.2d 643, 644 (Tex. 1985) ; Brown , 627 S.W.2d at 392. In other cases, however, we have stated that the four requirements are necessary to "sustain" or "prevail on" a restricted appeal, suggesting that the requirements ultimately involve the appeals' merits, as opposed to the court's jurisdiction. See Pike-Grant , 447 S.W.3d at 886 (stating requirements are necessary to "sustain" a restricted appeal); Ins. Co. of State of Penn. v. Lejeune , 297 S.W.3d 254, 255 (Tex. 2009) (per curiam) (stating requirements are necessary to "prevail" on restricted appeal); Alexander , 134 S.W.3d at 848 (listing elements required to "prevail" on a restricted appeal); Primate Const., Inc. v. Silver , 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) ("In order to be entitled to reversal by writ of error, a party who did not participate at trial has six months in which to show error on the face of the record.").
By contrast, several courts of appeals have expressly stated that all four requirements are "mandatory and jurisdictional." See, e.g. , Osteen v. Osteen , 38 S.W.3d 809, 812 (Tex. App.—Houston [14th Dist.] 2001, no pet.) ("Each element is mandatory and jurisdictional and cannot be waived.") (citing C & V. Club v. Gonzalez , 953 S.W.2d 755, 757 (Tex. App.—Corpus Christi 1997, no pet.) ); Serna v. Webster , 908 S.W.2d 487, 491 (Tex. App.—San Antonio 1995, no writ) ("Each of these elements is mandatory and jurisdictional.") (citing Robertson v. Hide–A–Way Lake Club, Inc. , 856 S.W.2d 841, 843 (Tex. App.—Tyler 1993, no writ) ("Each of the four requisites of an appeal by writ of error are mandatory and jurisdictional.")). These decisions ultimately rely, however, on court of appeals decisions that held only that the no-participation requirement is jurisdictional. See Lambda Constr. Co. v. Chamberlin Waterproofing & Roofing Sys., Inc. , 784 S.W.2d 122, 124 (Tex. App.—Austin 1990, writ denied) ) (holding only that the no-participation requirement "is mandatory, jurisdictional, and cannot be waived.") (citing Nutter v. Phares , 523 S.W.2d 292, 293 (Tex. Civ. App.—Beaumont 1975, writ ref'd n.r.e.) (stating that no-participation requirement is "mandatory, jurisdictional and cannot be waived")).
Despite our mixed messages regarding the four requirements as a whole, we have pretty clearly suggested in several cases that the fourth requirement—that error be apparent on the face of the record—goes to the merits of the appeal and is not jurisdictional. See, e.g. , Sweed v. Nye , 323 S.W.3d 873, 875 (Tex. 2010) (per curiam) ("We do not agree that the merits of Sweed's case are a consideration in determining whether he procedurally invoked the court of appeals' jurisdiction."); Ginn v. Forrester , 282 S.W.3d 430, 433 (Tex. 2009) (per curiam) (stating that a record that is "silent" on the asserted error is "insufficient to establish reversible error in a restricted appeal") (emphasis added); Brown , 627 S.W.2d at 392 ("The question first confronted is not whether Brown can obtain review by writ of error, but whether, assuming such review, there were any grounds before the court of civil appeals warranting reversal of the trial court's judgment.").
We confirm today that the error-on-the-face-of-the-record requirement is not jurisdictional. The task of determining error on the face of the record ultimately requires an analysis of the merits of the appellant's grounds for appeal. Generally, at least, courts should avoid inquiring into the merits of an appeal when deciding whether the appellant "procedurally invoked the court of appeals' jurisdiction." Sweed , 323 S.W.3d at 875 ; State Bar of Tex. v. Gomez , 891 S.W.2d 243, 245 (Tex. 1994) (explaining that courts must generally determine their jurisdiction before addressing "the merits of any case"). A party is "entitled to proper application of the appellate rules regardless of the merits of his underlying case." Sweed , 323 S.W.3d at 875.
We hold that although the first three requirements for a restricted appeal are jurisdictional, the fourth is not. An appellant who satisfies the first three requirements establishes the court's jurisdiction and must then establish error from the face of the record to prevail in the restricted appeal. See Texaco , 925 S.W.2d at 591 (rejecting finding that appellant participated in the hearing, reversing jurisdictional dismissal, and remanding for consideration of the merits). Here, the Department satisfied the three jurisdictional requirements but failed to demonstrate error on the face of the record. Because that requirement is not jurisdictional, the court of appeals should have affirmed the trial court's judgment instead of dismissing the appeal for want of jurisdiction.
IV.
Conclusion
We hold that "there was no court-ordered community supervision under Chapter 42A for the offense" in E.H.'s case because the court order placing him on community supervision was void from its inception. Because the Department does not challenge E.H.'s petition for expunction on any other ground, the trial court correctly held that E.H. is entitled to have records and files relating to the arrest expunged. The Department's failure to show error on the face of the record, however, did not deprive the court of appeals of jurisdiction over this restricted appeal. We reverse the court of appeals' judgment dismissing the Department's appeal for want of jurisdiction and reinstate the trial court's judgment.
Justice Blacklock filed a dissenting opinion.
Justice Blacklock, dissenting.
E.H. pleaded guilty to felony online solicitation of a minor. Expunction of arrest records is only available to him if "there was no court-ordered community supervision under Chapter 42A for the offense." TEX. CODE CRIM. PROC. § 55.01(a)(2). The Court acknowledges what it calls the "historical reality": E.H. served community supervision for online solicitation, and a court ordered him to do it. Surely that's the end of it, one would think. After all, if (1) there was community supervision for the offense, and (2) a court ordered it, then ineluctably (3) there was court-ordered community supervision for the offense. And if there was court-ordered community supervision for the offense, E.H. is not entitled to expunction.
Despite acknowledging that E.H. served community supervision and that a court ordered it, the Court somehow concludes that "there was no court-ordered community supervision under Chapter 42A for the offense." According to the Court, in addition to the "historical reality" of E.H.'s community supervision and the court order imposing it, there is also a "legal reality," under which we must pretend a court did not order E.H. to serve community supervision because the Court of Criminal Appeals decided the statute E.H. violated was unconstitutional. Until now, I would have thought the words "historical reality" redundant. When it comes to the past, any reality that is not historical is simply not real. There is only one "reality." Events either happened or they didn't. E.H.'s court-ordered community supervision happened. That's the end of it, as far as the expunction statute is concerned. The Court, however, asserts not just the familiar judicial power to "say what the law is." Marbury v. Madison , 5 U.S. 137, 177, 1 Cranch 137, 2 L.Ed. 60 (1803). It now also asserts the unfamiliar, and to my mind unwelcome, power to say what the past was.
Normally, when lawyers and judges pretend things that aren't really so, we call them "legal fictions." The expunction statute is quite plainly concerned not with lawyerly fictions but with the reality of E.H.'s case history. Thus, the Court must conjure not a legal fiction but an alternate "legal" reality.
Perplexed by the Court's decision and unwilling to say something did not happen when everyone knows it really did, I respectfully dissent.
* * *
As an initial matter, the Court reaffirms its prior holding that expunction is a matter of legislative grace, not a constitutional right. Ante at –––– (citing In re State Bar of Tex. , 440 S.W.3d 621, 624 (Tex. 2014) ). Thus, there is never an automatic entitlement to expunction, even when the underlying criminal statute is deemed unconstitutional. The Court does not contend that denial of expunction is an affirmative burden or punishment flowing from the crime. If expunction were conceptualized this way, there would be an argument that denying expunction to E.H. improperly continues to punish him for violating an unconstitutional statute. But neither the Court's prior cases nor its reasoning today approach expunction that way. Instead, the Court correctly acknowledges that expunction is a purely statutory right available only to petitioners who meet the parameters chosen by the Legislature. Only if E.H. satisfies the legislative standards governing expunction is he entitled to expunction, irrespective of the constitutionality of the online-solicitation statute. On this, I agree with the Court.
My disagreement is with the Court's application of the expunction statute. As I read the legislative expunction rules, there is no difficulty applying them to this case. E.H. must show that "there was no court-ordered community supervision under Chapter 42A for the offense." TEX. CODE CRIM. PROC. § 55.01(a)(2). There plainly was, so E.H. cannot show there was not, and his expunction petition must be denied.
As the Court reads the statute, the matter is complicated by the need to determine whether the statute E.H. violated was constitutional. But there is no indication whatsoever in the text of chapter 55.01 that the Legislature made expunction available to petitioners who served community supervision under statutes later determined by courts to be unconstitutional. Given the statute's excruciating detail, one would expect to find a more explicit provision putting the constitutionality of the underlying statute on the table in cases like this one. Such a provision does not exist in this statute. The Court nevertheless manages to find it, lurking unspoken in the requirement that the petitioner show "there was no court-ordered community supervision under Chapter 42A for the offense." What should be a simple box-checking exercise regarding the petitioner's case history becomes an entrée to constitutional litigation.
The Court squeezes the elephant into the mousehole by focusing on the adjective "court-ordered." See Whitman v. Am. Trucking Ass'ns , 531 U.S. 457, 468, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) ("Congress, we have held, does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes."). The Court correctly observes that as the State reads the provision, it means the same thing with or without the adjective "court-ordered," because all community supervision under Chapter 42A is court-ordered. This superfluity of language must be avoided, the Court reasons. The adjective "court-ordered" before "community supervision" must add something to the statute's meaning. In a quest to give it meaning, the Court decides it is an oblique invitation to examine the constitutional validity of the court order, which the Court says depends on the constitutionality of the underlying criminal statute. This approach contorts the statute into something it comes nowhere close to saying. Helpful canons of statutory construction—such as the presumption against superfluous words—are not iron laws that require us to read meaning into a statute that just isn't there. See Bridgestone/Firestone, Inc. v. Glyn-Jones , 878 S.W.2d 132, 133 (Tex. 1994) ("The general rule is that when a statute is clear and unambiguous a court should not use rules of construction or extrinsic aids to construe it, but should give the statute its common meaning."). The presumption against superfluous words exists in service of the primary goal of statutory construction, which is to understand what the statutory words mean in plain English. As Justice Scalia aptly explained:
Put to a choice, however, a court may well prefer ordinary meaning to an unusual meaning that will avoid surplusage. So like all other canons, this one must be applied with judgment and discretion, and with careful regard to context. It cannot always be dispositive because (as with most canons) the underlying proposition is not invariably true. Sometimes drafters do repeat themselves and do include words that add nothing of substance, either out of a flawed sense of style or to engage in the ill-conceived but lamentably common belt-and-suspenders approach.
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 176–77 (2012) (emphasis omitted).
Here, "community supervision" and "court-ordered community supervision" mean the exact same thing. Such linguistic redundancy is not uncommon and does not change the meaning of a sentence. As in the phrases "gubernatorial pardon under Article IV, section 11" or "legislative statute" (or "African zebra in the wild"), the words "court-ordered community supervision under Chapter 42A" would mean the same thing if the adjective were removed. When the plain meaning of the words is the same with or without the adjective, forcing the words to mean something they do not say just to explain the adjective's presence improperly elevates interpretive formalism over plain English.
In demanding that the words "court-ordered" be given independent meaning, the Court sacrifices the overarching goal of statutory construction—understanding what the words mean—to the secondary concern of avoiding superfluous verbiage. But the Legislature does not speak in code. It does not bury big ideas like statutory constitutionality in words like "court-ordered" and then leave it up to us to employ the superfluous-language canon to divine its meaning. See Whitman , 531 U.S. at 468, 121 S.Ct. 903 ; see also Scalia & Garner, supra , at 69 ("Interpreters should not be required to divine arcane nuances or to discover hidden meanings."). Instead, we presume the Legislature says what it means and means what it says. Cadena Comercial USA Corp. v. Tex. Alcoholic Bev. Comm'n , 518 S.W.3d 318, 337 (Tex. 2017). Here, the Legislature said expunction is available only if "there was no court-ordered community supervision under Chapter 42A for the offense." All this language asks a court to do is to answer whether "there was." Here, there was, so E.H.'s petition should be denied.
In any event, even if the adjective "court-ordered" needed to have independent meaning, there is no reason to think it imports concerns about the community supervision's constitutional validity. Whether a court order was valid or constitutional has nothing to do with whether it was ordered by a court. All court orders are "court-ordered," both the valid and the invalid. There is an important distinction, for many purposes, between valid court-ordered community supervision and unconstitutional court-ordered community supervision. But it's all "court-ordered community supervision." By referring generally to "court-ordered community supervision," the Legislature did not invoke a distinction between the valid kind and the invalid kind. Quite the opposite. By not distinguishing between valid and invalid court orders, the Legislature included all court-ordered community supervision.
Oddly, the Court's construction of the statute begins with the premise that all community supervision is court-ordered, and it ends with the conclusion that not all community supervision is court-ordered. Because all community supervision is court-ordered, the Court reasons, the statute's use of the term "court-ordered" must mean something unexpected, lest it be superfluous. So the Court assigns meaning to "court-ordered," and after applying that meaning, it concludes E.H.'s community supervision was not "court-ordered." Thus, a logical sequence beginning with the premise that all community supervision is court-ordered somehow ends with the conclusion that E.H.'s community supervision was not court-ordered. I agree the premise is correct, but it cannot lead to a conclusion that refutes the premise. Because all community supervision is ordered by a court, all community supervision is "court-ordered community supervision," whether it was constitutionally imposed or not.
* * *
According to the Court, we cannot simply ask whether "there was no court-ordered community supervision for the offense." Never mind that is exactly what the statute says. No, we must also ask whether the statute E.H. violated was constitutional, even though the Legislature surely could have asked us to think about that if it wanted us to. As explained above, the expunction statute itself provides no textual warrant to inquire into the constitutionality of the criminal law the petitioner violated. That alone should be reason enough not to do it.
A deeper flaw infects the Court's thinking, however. The Court reasons that because the statute was declared unconstitutional, it was "void ab initio." As the Court sees it, if the statute was "void ab initio," then (1) we must act as if any orders or judgments issued pursuant to the statute never existed (even though we know they did), and (2) there was no "offense" for which E.H. could have served community supervision (even though we know there was). Neither of these statements is correct.
First, the Court says that if the underlying criminal statute turns out to be unconstitutional, past orders and judgments issued pursuant to the statute are also "void ab initio." Ante at 490. According to the Court, this means we must act as if these orders and judgments never happened. That is simply not right. The declaration of a statute's unconstitutionality curtails prospective enforcement of the statute. It does not automatically nullify all orders and judgments issued in the past pursuant to the statute. And it certainly does not require us to take the additional step the Court takes—to pretend that these orders and judgments never existed at all .
The Court cites several cases holding that unconstitutional statutes are "void ab initio." See, e.g. , Reyes v. State , 753 S.W.2d 382, 383 (Tex. Crim. App. 1988). It is one thing to say that when a statute is declared unconstitutional, we must now act as if it never existed. That is also not right, but leave it to one side for now. It is quite another thing altogether to say that when a statute is declared unconstitutional, a new "legal reality" arises under which all orders and judgments previously issued pursuant to the statute must be treated as if they never happened . This extreme view of what it means for a statute to be "void ab initio" is not mandated by any of the cases the Court cites. Those cases call the statute "void ab initio," not the orders and judgments previously issued under it. But I take the Court to be saying much more. The Court says that the declaration of a statute's unconstitutionality renders orders and judgments previously issued pursuant to the statute not just void, but beyond our power even to acknowledge as events in the past. This is what the Court must be saying in order to conclude "there was no court-ordered community supervision" when in reality there was.
The implications are stunning. Imagine a world in which the Court is right—a world in which the judicial declaration of a statute's unconstitutionality means orders issued pursuant to that statute never existed. E.H. could sue his probation officer. Those imprisoned for violating the online-solicitation statute could sue their prison guards. The officers, of course, would point to the now-vacated court orders of community supervision or imprisonment, under which their actions were lawful at the time. Indeed, those court orders did not merely make the officers' actions lawful. The orders compelled the officers to act as they did. As the Court understands the status of the orders, however, the officers could not raise them as a defense to liability—just like the State cannot raise them as a defense to expunction. Under the new "legal reality," it is not just that the orders are no longer in effect. Their past existence cannot be acknowledged or allowed to have any current legal effect.
Obviously, that is not how it works. The officers in these hypothetical lawsuits could of course use the court orders under which they acted as a defense to liability, even if the underlying statute has been declared unconstitutional and the orders vacated. The orders were in place at a time in the past. They adjusted legal rights at that time. Even in proceedings today—after the statute has been declared unconstitutional and the orders vacated—the orders continue to have potential legal effect because they tell us what the legal landscape looked like in the past. Similarly, the reality that there was court-ordered community supervision in E.H.'s case is not something we're obliged to pretend isn't true. Just as E.H.'s probation officer could use the vacated court order to refute a claim that "there was no legal warrant for the officer's actions," the State can use the order in an expunction proceeding to refute E.H.'s claim that "there was no court-ordered community supervision."
As support for the notion that judicial declarations of a statute's unconstitutionality eviscerate all past actions taken under the statute, the Court cites several cases in which convictions for online solicitation of a minor were vacated after Ex parte Lo . The very existence of such cases demonstrates a flaw in the Court's thinking. The declaration of the statute's unconstitutionality in Ex parte Lo did not exonerate anyone other than Mr. Lo. Similarly situated inmates were not released the next day. Had they been, their prison guards would have been in violation of orders requiring their imprisonment. Those orders did not vanish because the statute was declared unconstitutional. Each order had to be separately challenged and vacated, and the orders remained binding until vacated. Even once vacated, these orders did not cease to have ever existed under a new "legal reality." Such orders cannot be enforced in the future, but they existed and were enforceable in the past. If a statute requires us to decide whether an order was in effect in the past —whether "there was" such an order—we must of course acknowledge that "there was" and that it affected legal rights in the past. Similarly, when the Legislature asks whether "there was no court-ordered community supervision under Chapter 42A for the offense," we must answer truthfully. No valid legal principle permits a court to do otherwise.
There is disagreement on the Court of Criminal Appeals as to whether the online-solicitation statute's violation of the First Amendment's overbreadth doctrine requires vacatur of all convictions under the statute, much less retroactive erasure from history of all orders and judgments issued pursuant to the statute. See Ex parte Fournier , 473 S.W.3d 789, 805 (Tex. Crim. App. 2015) (Yeary, J., joined by Keller, C.J., dissenting) ("Applicants today have made no showing that the statute that we struck down in Lo was unconstitutional as it applied to their conduct. Without such a showing, I am reluctant to extend to them the benefit of a retroactive application of Ex parte Lo ."); Ex parte Lester , No. WR–88,227–01, 2018 WL 1736686, at *1 (Tex. Crim. App. Apr. 11, 2018) (Yeary, J., concurring) (disagreeing "with the Court's decision to grant relief on that basis [because] the applicant should first demonstrate that the statute was applied unconstitutionally in his case").
Next, the Court concludes that there cannot have been community supervision "for the offense" because "no ‘offense’ ever occurred." Ante at 494. No offense occurred, the Court argues, because the statute E.H. violated has been judicially voided and must be treated as having never existed. This Court previously rejected that view:
[N]either the Supreme Court in Obergefell nor the Fifth Circuit in De Leon [v. Abbott, 791 F.3d 619 (5th Cir. 2015) ] "struck down" any Texas law. When a court declares a law unconstitutional, the law remains in place unless and until the body that enacted it repeals it, even though the government may no longer constitutionally enforce it.
Pidgeon v. Turner , 538 S.W.3d 73, 88 n.21 (Tex. 2017) (holding that Texas's traditional marriage laws may retain some legal effect despite Obergefell v. Hodges , 574 U.S. 1118, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015) ). Although lawyers and judges frequently speak of courts "striking down" or "nullifying" statutes, more careful consideration of the matter exposes the deficiency of this colloquial rhetoric of judicial supremacy. Courts are not legislatures. The Texas Constitution reserves the law-making and law-rescinding powers to the Legislature, and it prohibits the judiciary from "exercis[ing] any power properly attached to either of the other[ ] [branches]." Tex. Const. art. II, § 1. "The power of judicial review ... permits a court to enjoin executive officials from taking steps to enforce a statute .... But the statute continues to exist, even after a court opines that it violates the Constitution ...." Jonathan F. Mitchell, The Writ-of-Erasure Fallacy , 104 Va. L. Rev. 933, 936 (2018) ; see also Winsness v. Yocom , 433 F.3d 727, 728 (10th Cir. 2006) (McConnell, J.) ("There is no procedure in American law for courts or other agencies of government—other than the legislature itself—to purge from the statute books, laws that conflict with the Constitution as interpreted by the courts.").
Judicial declarations of a statute's unconstitutionality are not immutable. Judges can change their minds, and a court's membership can change. A statute declared unconstitutional today can be reconsidered tomorrow. Such reconsideration would be impossible, however, if the Court is right that the statute must be treated as having never existed once a court declares it unconstitutional. There is nothing left to reconsider if the statute is "void ab initio" for all purposes. But of course courts can and do reconsider their prior holdings. In fact, one member of the Court that decided Ex parte Lo regularly calls for its reconsideration. E.g. , Ex parte Chavez , 542 S.W.3d 583 (Tex. Crim. App. 2018) (Yeary, J., dissenting) ("Once again, the Court today grants post-conviction relief to an applicant whose conduct, as I see it, fails to even remotely constitute protected speech.... I believe that the Court should reconsider whether [Ex parte Lo ] was decided correctly."). If this judge convinced four of his colleagues, Ex parte Lo would be overturned. What then? Would all the orders and judgments the Court says vanished when Lo was decided spring back into existence? Would convictions vacated because of Lo spring back to life? Or is it a one-way ratchet, such that all acts taken pursuant to the statute vanish when the statute is declared unconstitutional but do not reappear if the declaration is overturned? Presumably, the Court would agree that if Ex parte Lo were overturned, another petitioner in E.H.'s shoes would suddenly not be entitled to expunction. Thus, even though both served identical "court-ordered community supervision under Chapter 42A for the offense," E.H. would get expunction and the second petitioner would not. The expunction statute contains no basis for such a distinction.
E.H. pleaded guilty to the offense of online solicitation of a minor under the version of the statute then in existence. Ex parte Lo later rendered this offense unenforceable, and the Legislature responded by amending the statute. But to say E.H. did not serve his community supervision "for the offense" is to deny reality, replacing it with a manufactured "legal reality" without any warrant in the statute for doing so. The offense was on the books. E.H. was arrested and pleaded guilty to it. A court ordered him to serve community supervision "for the offense." That the offense was later declared unconstitutional does not mean E.H. didn't serve community supervision for it. If he didn't serve community supervision for the online-solicitation offense, what was he doing all that time? As with the term "court-ordered," the Court's attempt to make the words "for the offense" mean "for an offense that is not later determined to be unconstitutional" is like squeezing blood from a rock. That just isn't what the statute says. It says E.H. must show "there was no court-ordered community supervision under Chapter 42A for the offense." E.H. cannot make this showing, because he pleaded guilty to the offense of online solicitation of a minor and served community supervision for it. That the statute was declared unconstitutional has nothing to do with whether those events occurred. They did, so E.H. is not entitled to expunction.
Finally, if the Court were right that there is no "offense" in cases like E.H.'s, it is not clear what this would mean for chapter 55.01, which uses the word "offense" twenty-two times. If the unconstitutionality of a criminal statute means we must act as if there was never any "offense" to begin with, then the statute is reduced to rubble in such cases. It is difficult to imagine it could still be applied at all. Perhaps that is the true import of the Court's decision: Once the underlying statute is declared unconstitutional, all previously convicted persons are entitled to expunction. If none of them can be acknowledged to have ever been arrested for an "offense," then why would they not be automatically entitled to expunction? The mere existence of the paperwork in government files acknowledges the offense occurred, which is contrary to the Court's "legal reality" that "no offense ever occurred." The only way to match the real world with the new "legal reality" would be to expunge the records. The Court does not explicitly go that far, but I fail to see how its logic does not.
* * *
Petitioners seek expunction in order to begin life anew, as if their legal trouble never happened. Where the Legislature has authorized it, expunction enables many people to do that. As I understand the statute, the Legislature has not entitled E.H. to expunction because he pleaded guilty and served community supervision for the offense.
One irony of today's decision is that, in order to conclude that E.H. is entitled to expunction, the Court must act as if E.H. never committed an offense and never served community supervision. In other words, E.H. gets expunction because the Court believes it cannot acknowledge the existence of the very things he wants expunged. That is not how the statute works. E.H. must prove he qualifies for expunction before he becomes entitled to be treated as if his offense never happened.
More importantly, the Court's decision misunderstands what it means to declare a statute unconstitutional. This mistake could have serious consequences beyond the narrow context of expunction. I respectfully dissent.