Court of Appeals of Texas, Fourth District, San Antonio
the 408th Judicial District Court, Bexar County, Texas Trial
Court No. 2017CI21969 Honorable Angelica Jimenez, Judge
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa,
Justice Irene Rios, Justice
sole issue presented in this appeal is whether the trial
court erred in denying a petition for expunction where: (1)
the petitioner pled no contest to committing the offense of
online solicitation of a minor and was ordered to serve
deferred adjudication community supervision; (2) the trial
court's order was set aside in a habeas proceeding
because the online solicitation of a minor statute was held
unconstitutional; and (3) the district attorney's motion
to dismiss the charges was also granted because the statute
was declared unconstitutional. We join our sister courts in
holding the petitioner was entitled to an expunction. See
Tex. Educ. Agency v. S.E.H., 571 S.W.3d 372 (Tex.
App.-Houston [1st Dist.] 2018, pet. filed); Ex parte
E.H., No. 02-17-00419-CV, 2018 WL 4050556 (Tex.
App.-Fort Worth Aug. 16, 2018, pet. filed); Ex parte
C.D., No. 12-17-00309-CV, 2018 WL 3569838 (Tex.
App.-Tyler July 25, 2018, pet. filed). The trial court's
order is reversed, and judgment is rendered granting the
petition for expunction.
18, 2013, J.A.G. pled no contest to a charge of online
solicitation of a minor. Pursuant to a plea bargain
agreement, the trial court entered an order deferring the
adjudication of J.A.G.'s guilt and placing J.A.G. on
eight years' community supervision.
October 30, 2013, the Texas Court of Criminal Appeals held
the online solicitation of a minor statute unconstitutional.
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013).
It is undisputed that J.A.G. subsequently filed an
application for writ of habeas corpus relief which was
granted by the trial court. Although the trial court's
order granting habeas relief is not contained in the
appellate record, the order presumably set aside the trial
court's order deferring J.A.G.'s adjudication and
remanded J.A.G. to custody "to answer the charges as set
out in the indictment so that the indictment may be disposed
of in accordance with . . . Ex parte Lo."
Ex parte Chance, 439 S.W.3d 918, 918 (Tex. Crim.
App. 2013) (granting such relief in a post-conviction writ of
October 14, 2016, the district attorney filed a motion to
dismiss the charges against J.A.G. because the statute under
which he was charged had been declared unconstitutional. The
trial court signed an order granting the motion and
dismissing the cause.
November 17, 2017, J.A.G. filed a petition for expunction
asserting he was entitled to an expunction under article
55.01(a)(2) of the Texas Code of Criminal Procedure (the
"Code"). The petition stated "there was
court-ordered community supervision under Article 42.12 of
the [Code], however that was negated by the said
Writ of Habeas Corpus and Order [on Writ of Habeas
Corpus]." (emphasis in original). The Texas
Department of Public Safety ("DPS") filed an answer
asserting J.A.G was not entitled to expunction because he
served court-ordered community supervision. After a hearing,
the trial court denied the petition. J.A.G. appeals.
review a trial court's ruling on a petition for
expunction for an abuse of discretion." Ex Parte
Green, 373 S.W.3d 111, 113 (Tex. App.-San Antonio 2012,
no pet.). "To the extent a ruling on expunction turns on
a question of law, we review the ruling de novo because
'[a] trial court has no 'discretion' in
determining what the law is or applying the law to the
facts.'" Id. (quoting Walker v.
Packer, 827 S.W.2d 833, 840 (Tex. 1992)). "Thus, a
trial court abuses its discretion if it misapplies or
misinterprets the law." Id.
the requirements that must be shown to be entitled to an
expunction under article 55.01(a)(2) of the Code is that
"there was no court-ordered community supervision under
Chapter 42A for the offense." Tex. Code Crim. Proc. Ann.
art. 55.01(a)(2). In its appellee's brief, DPS refers to
the plain language of the statute and asserts,
"Regardless of how the community supervision terminated
or what happened after it terminated, there still was
community supervision for the offense. Consequently, the
expunction of [J.A.G.'s] arrest was properly denied by
the trial court." Although DPS acknowledges the Fort
Worth court's holding to the contrary, it notes a
petition for review is pending in that appeal.
previously noted, the Texas Court of Criminal Appeals held
the online solicitation of a minor statute facially
unconstitutional. Ex parte Lo, 424 S.W.3d at 14.
"An unconstitutional statute is void from its
inception." Re ...