Appeal from the 268th District Court Fort Bend County, Texas,
Trial Court Case No. 15-DCV-227070
consists of Chief Justice Radack and Justices Brown and
RUSSELL LLOYD JUSTICE.
Texas Education Agency is appealing an order of expunction of
criminal records granted to S.E.H. In two issues, TEA argues
that the trial court abused its discretion by granting
S.E.H.'s petition for expunction because: (1) S.E.H. did
not prove that he satisfies all of the statutory
prerequisites for expunction, and (2) the scope of the
expunction order is overly broad. We reverse and render
judgment denying S.E.H.'s petition for expunction because
S.E.H. did not satisfy the statutory requirements for
expunction. He did not demonstrate that he had not been
placed on community supervision.
undisputed that S.E.H., a Texas public school teacher,
repeatedly solicited sex from a person he believed to be a
thirteen-year-old girl. He was arrested for the felony
offense of online solicitation of a minor in violation of
Texas Penal Code section 33.021(b). S.E.H. pleaded guilty
and, pursuant to a plea bargain with the State, was placed on
eight years' deferred adjudication community supervision.
He surrendered his educator certificate to TEA as a condition
of his community supervision. These facts are documented in
the Sugar Land Police Department's Incident Report, which
includes an initial report of the sting operation targeting
an internet chat room that resulted in S.E.H.'s arrest,
and several supplemental reports on the same matter (the
the Texas Court of Criminal Appeals found Penal Code section
33.021(b) facially unconstitutional in Ex Parte Lo,
424 S.W.3d 10 (Tex. Crim. App. 2013), S.E.H. filed an
application for writ of habeas corpus pursuant to Code of
Criminal Procedure article 11.072, which "establishes
the procedures for an application for a writ of habeas corpus
in a felony or misdemeanor case in which the applicant seeks
relief from an order or a judgment of conviction ordering
community supervision." Tex. Code Crim. Proc. Ann. Art.
11.072, § 1 (West 2015). The application was granted and
the case against him was dismissed.
then filed a petition for expunction of criminal records
relating to his arrest for the felony offense of online
solicitation of a minor. TEA filed a general denial,
demanding strict proof of S.E.H.'s eligibility for
expunction and all other statutory prerequisites.
no testimony or evidence was admitted during the hearing on
this matter, the trial court took judicial notice of the
Reports at TEA's request. After the hearing, the trial
court found that the Reports were part of the arrest record,
granted the petition, and issued an order expunging "all
records of [S.E.H.]'s arrest" as well as "all
records of [S.E.H.]'s prosecution."
timely moved for a new trial and for formal admission of the
Reports into evidence. After a second hearing, the trial
court denied TEA's motions. This appeal followed.
Prerequisites for Expunction
first issue, TEA argues that the trial court abused its
discretion when it granted S.E.H.'s petition because
S.E.H.'s failed to demonstrate that he was not placed on
community supervision, which is a statutory prerequisite for
expunction. See Tex. Code Crim. Proc. Ann. art.
55.01(a), (a)(2) (West Supp. 2016).
Standard of Review
1.Petition for ...