Court of Appeals of Texas, Second District, Fort Worth
Appeal from the 213th District Court Tarrant County, Texas
Trial Court No. D213-E13986-17
Sudderth, C.J.; Gabriel and Birdwell, JJ.
case presents a familiar sequence of events: after pleading
guilty to online solicitation of a minor, M.S. was placed on
community supervision; the online solicitation statute was
then declared facially unconstitutional, and M.S. obtained
habeas relief; M.S. subsequently secured an order expunging
any records related to the offense, and the Texas Department
of Public Safety (DPS) filed a restricted appeal raising a
single issue. We addressed nearly identical circumstances in
two recent cases.
in prior cases, DPS argues that because M.S. was placed on
community supervision, any records related to the arrest may
not be expunged. As before, we must respectfully disagree.
Because it was rendered under a facially unconstitutional
statute, M.S.'s community supervision was void, empty of
consequence; in effect, it was no community supervision at
all, and it poses no obstacle between M.S. and the expunction
he desires. We therefore dismiss DPS's appeal for want of
October 27, 2009, M.S. was arrested by the Fort Worth Police
Department for online solicitation of a minor under former
section 33.021(b) of the Texas Penal Code. See Act
of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, 2007
Tex. Gen. Laws 1167, 1167-68. M.S. was subsequently indicted,
and in 2011, he pleaded guilty in exchange for seven
years' deferred adjudication community supervision and a
$2, 000 fine, among other conditions. In 2013, the court of
criminal appeals struck down former section 33.021(b) as
facially unconstitutional. See Ex parte Lo, 424
S.W.3d 10, 14 (Tex. Crim. App. 2013). In 2016, M.S. was
granted habeas relief vacating the order of deferred
adjudication, and his indictment was dismissed.
2017, M.S. filed a petition to expunge the records of his
arrest, which he subsequently amended multiple times. DPS and
the Tarrant County District Attorney filed answers denying
that M.S. was entitled to expunction. After holding a
hearing, the trial court granted M.S.'s petition on June
8, 2018. The order of expunction stated that the statute
under which M.S. was prosecuted was void, and his indictment
was therefore void ab initio, leading to its
dismissal. The order further recited that the charge had not
resulted in a final conviction and was no longer pending, and
there was as a matter of law no court-ordered community
supervision for any offense. DPS filed a notice of restricted
appeal on November 19, 2018.
sole issue, DPS argues that error appears on the face of the
record because M.S. pleaded guilty and received court-ordered
community supervision, thus rendering him ineligible for
expunction. M.S. responds with a brief containing only two
full sentences of argument, which we reproduce in full:
"A void order of probation is void, and cannot bar
expunction. This Court, among others, has resolved this
issue." [Footnotes omitted.] In a footnote, M.S. cites
our opinions in Ex parte E.H., No. 02-17-00419-CV,
2018 WL 4050556 (Tex. App.-Fort Worth Aug. 16, 2018, pet.
filed) and Ex parte J.H., No. 02-17-00338-CV, 2018
WL 4024757 (Tex. App.-Fort Worth Aug. 23, 2018, pet. filed)
(mem. op.). The thrust of M.S.'s argument is that we have
already thoroughly addressed this issue in two recent
opinions, decided on equivalent facts, and the result should
be the same here. We agree with M.S.
can prevail in a restricted appeal only if (1) it filed
notice of the restricted appeal within six months after the
order or judgment was signed, (2) it was a party to the
underlying lawsuit, (3) it did not participate in the hearing
that resulted in the order or 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. Ins. Co. of State of
Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009). These
requirements are jurisdictional and will cut off a
party's right to seek relief by way of a restricted
appeal if they are not met. Ex parte K.K., No.
02-17-00158-CV, 2018 WL 1324696, at *2 (Tex. App.-Fort Worth
Mar. 15, 2018, no pet.) (mem. op.); In re D.M.B.,
467 S.W.3d 100, 103 (Tex. App.-San Antonio 2015, pet.
denied); C&V Club v. Gonzalez, 953 S.W.2d 755,
757 (Tex. App.-Corpus Christi 1997, no writ); see De La
Rocha v. Lee, 354 S.W.3d 868, 872 (Tex. App.-El Paso
2011, no pet.).
review a trial court's ruling on a petition for
expunction for an abuse of discretion. K.K., 2018 WL
1324696, at *3. However, to the extent that the ruling turns
on a question of law, we review it de novo because the trial
court has no discretion in determining what the law is or in
applying the law to the facts. Id.
E.H., this court grappled with the issue of how to
handle expunction petitions in the wake of Ex parte
Lo's declaration that the online solicitation
statute was unconstitutional. E.H., 2018 WL 4050556
at *1. The applicant had served community supervision, which
in general would render him ineligible for expunction.
See id. at *4 (citing a former version of Tex. Code
Crim. Proc. Ann. art. 55.01(a)(2)). However, we examined the
expunction statute and surveyed the relevant case law, much
of which suggested that a prosecution based on this
unconstitutional statute should be considered void in
toto, including any indictment or resulting community
supervision, such that it was as if the community supervision
had never occurred. Id. at *5-7. We held that if the
indictment was dismissed because it was void, then regardless
of whether time of any sort was served, the applicant should
be entitled to expunction. Id. at *7. "[W]hen
the indictment disappeared as a result of . . . habeas corpus
relief because ...