Texas Education Agency v. H.C v. ( 2019 )

Opinion issued February 28, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00210-CV
———————————
TEXAS EDUCATION AGENCY, Appellant
V.
H.C.V., Appellee
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Case No. 2016-30247
OPINION
Appellee H.C.V. successfully petitioned the trial court for expunction of all
records of her arrest and prosecution for the state-jail felony offense of online
solicitation of a minor. In two issues, the Texas Education Agency (TEA) appeals
the trial court’s granting the expunction order and its scope. We hold that the trial
court properly granted the petition for expunction but erred in failing to modify the
order’s scope.
Background
In April 2007, H.C.V., a teacher with a state-educator certification, pleaded
guilty to online solicitation of a child. She was placed on community supervision,
but after H.C.V. failed to register as a sex offender, her community supervision was
revoked and she was sentenced to nine months in state jail. In November 2007, the
TEA successfully moved to revoke H.C.V.’s Texas Educator Certification.
After the statute that H.C.V.’s prosecution was based on was declared
unconstitutional,1 H.C.V. successfully applied for habeas corpus relief as to her
conviction. H.C.V. then petitioned for expunction of all records relating to her arrest.
The TEA objected to expunction.
After a hearing and taking the matter under advisement, the trial court granted
the petition for expunction in an order that provides in pertinent part:
(1) The petition for expunction is GRANTED, and all records of
the petitioner’s arrest in the above-stated causes including all records
of petitioner’s prosecution for both such offenses are expunged; and all
release, dissemination or use of records pertaining to such arrests and
prosecutions is prohibited;
(2) The respondents, and all private entities receiving notice of
this order, shall return all records and files concerning the above-
specified arrests to this Court, or if removal is impracticable, obliterate
1
Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).
2
all portions of the records or files that identify the petitioner, including
all computer entries, and notify the court of its action; . . .
The TEA filed a motion for new trial and, in the alternative, motion to modify
the expunction order. The motion requested in part that the trial court address
expunction of the administrative law judge’s Proposal for Decision (the PFD) to the
State Board of Educator Certification regarding its action to revoke H.C.V.’s
Educator Certification. The TEA requested that the trial court either except the PFD
from the expunction order or modify the order to allow the PFD to be redacted to
remove any references to H.C.V.’s arrest and criminal case. The trial court denied
the TEA’s motion.
Analysis
In its first issue, the TEA contends that the trial court erred in granting the
petition for expunction because H.C.V. was placed on community supervision,
which negates her entitlement to expunction.2 The TEA’s second issue asserts that,
even if H.C.V. were entitled to expunction, the trial court’s order is overly broad
because the PFD includes information that is not subject to being expunged.
2
See TEX. CODE CRIM. PROC. art. 55.01(a)(2) (“A person who has been placed
under a custodial or noncustodial arrest for commission of either a felony or
misdemeanor is entitled to have all records and files relating to the arrest
expunged if: . . . (2) the person has been released and the charge, if any, has
not resulted in a final conviction and is no longer pending and there was no
court-ordered community supervision under Chapter 42A for the offense . . .
.”) (emphasis added).
3
I. Entitlement to Expunction
This Court, sitting en banc, recently addressed the identical issue presented in
the TEA’s first issue. In Texas Education Agency v. S.E.H., No. 01-16-00420-CV,
___ S.W.3d ___, 2018 WL 6839727 (Tex. App.—Houston [1st Dist.] Dec. 28, 2018,
pet. filed) (en banc), the TEA similarly contested the expunction petition of a former
teacher who had likewise obtained habeas corpus relief after his guilty plea to online
solicitation of a child and resulting community supervision. We held that
S.E.H., a person who was arrested for commission of a felony, is
entitled to have all records and files relating to the arrest expunged
because he has been released, and the charge has not resulted in a final
conviction and is no longer pending. The prosecution was void ab
initio, and as a matter of law there was no court-ordered community
supervision under Chapter 42A for the offense.
Id. at ___, 2018 WL 6839727, at *3.
For the same reasons set out in S.E.H., we hold that H.C.V. is entitled to
expunction and overrule the TEA’s first issue.
II. Scope of expunction order
In its second issue, the TEA asserts that the expunction order is overbroad
because it includes the PFD, which can be redacted to remove the references to
H.C.V.’s arrest and prosecution, and that the trial court erred in not modifying its
order to provide for redaction of the PFD.
The TEA asserts that it has a strong interest in retaining the redacted PFD
because it provides administrative services to the Texas State Board for Educator
4
Certification by, among other things, denying applications for certification. See TEX.
EDUC. CODE § 21.035(b); 19 TEX. ADMIN. CODE § 249.3(59). For example, based on
“satisfactory evidence” (such as the TEA’s own files) that a person has solicited
sexual conduct with a student or minor, the TEA could deny a re-application for
certification. See 19 TEX. ADMIN. CODE §§ 249.12(a)–(b), 249.15(a)–(c),
249.15(b)(9)(L); see, e.g., Gomez v. Tex. Educ. Agency, 354 S.W.3d 905, 917–18
(Tex. App.—Austin 2011, pet. denied) (affirming revocation of teacher certification
based in part on arresting officer’s eyewitness testimony of underlying conduct,
despite arrest records having been expunged, and Board’s own investigative records
could have identified arresting officer).
At the hearing on the TEA’s motion for new trial, the TEA raised the issue of
expunging or redacting the PFD, explaining that it was raising the issue out of an
abundance of caution and that it had run into this issue previously because of its duty
to regulate educators. H.C.V. took the position that the trial court’s order required
the TEA and the State Board for Educator Certification to expunge the PFD in its
entirety. In response, the trial court opined that the order does not require the TEA
to “wipe out all of [its] records as well.”
While the TEA did not present the PFD (which was in the record) to the trial
court for review, it described the document as not a “record relating to the arrest,”
but containing “explicit facts referencing that arrest.” The TEA was prepared to
5
redact the PFD so that it was left with only H.C.V.’s underlying conduct. The trial
court then stated, “I think if TEA appropriately redacts the information that is
ordered to be expunged from their records and they maintain their other records, I
think they are probably within their boundaries.” The trial court nevertheless denied
the TEA’s motion for new trial.
The PFD is a five-page document signed by an administrative law judge. It
states that the State Board for Educator Certification was seeking to revoke H.C.V.’s
educator certification “for having a sexual relationship with a student and engaging
in other inappropriate conduct that violated the Educators’ Code of Ethics and makes
[H.C.V.] unworthy to instruct or supervise the youth of this state.” It then notes that
H.C.V. defaulted and that the Board’s allegations would be accepted as true and its
revocation recommendation would be agreed to.
The PFD then sets forth H.C.V.’s underlying conduct in its findings of fact:
while sitting behind her middle-school classroom desk with students present, H.C.V.
became unconscious and fell to the floor, and students went to the office seeking
medical assistance for her; school officers arrived and took H.C.V. to the school
nurse’s office and then returned to her classroom to secure her personal items; and
the officers found two empty cough syrup bottles and that H.C.V.’s “district email”
was “up” on her screen and a sexually explicit email was open on the screen. An
officer did a closer investigation that identified other sexually explicit emails with a
6
possible student and, upon searching for that student’s name on the school roster,
determined that the student had been in the middle school the previous year and was
a freshman in high school. The student later admitted to sexual activity with H.C.V.
The PFD includes the following four findings:
25. Respondent pled guilty to online solicitation of a minor in the
182nd District Court of Harris County.
26. Respondent was given three years deferred adjudication starting
April 2, 2007.
27. Respondent was required to register as a sex offender and
participate in sex offender treatment by the court.
28. Respondent was also required to submit to random drug and
alcohol analysis by the court.
The expunction statute provides that, if certain conditions are met, a “person
who has been placed under a custodial or noncustodial arrest for commission of
either a felony or misdemeanor is entitled to have all records and files relating to the
arrest expunged. . . .” TEX. CODE CRIM. PROC. art. 55.01(a) (emphasis added).
The TEA asserts that the expunction order is overbroad because a possible
interpretation of it (such as that given by H.C.V.) is that the entire PFD should be
expunged because it refers to H.C.V.’s prosecution and her underlying conduct that
led to her arrest and prosecution. The TEA contends that the expunction statute does
not encompass its administrative or investigative records of the conduct that led to
7
the arrest and that the trial court’s order should be modified to provide for redaction
of the above references to H.C.V.’s prosecution in the PFD.
H.C.V.’s position is: “If a record or file contains a reference to an arrest, it is
a record or file relating to the arrest, and must be expunged.” H.C.V. contends that
the entire PFD relates to the arrest because it contains the above four findings and
that the other findings that discuss the underlying conduct and investigation also
relate to the arrest. She concludes: “H.C.V.’s entire file with the agency relates to
the arrest because it contains the [the PFD].”3
The specific issue before us is whether the entire PFD is subject to expunction
or whether redaction of the findings in the PFD relating to H.C.V.’s arrest and
prosecution satisfies the expunction statute. This issue requires us to construe article
55.01(a), which is a question of law that we review de novo. See City of Rockwall
v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008); Ex parte S.C., 305 S.W.3d 258, 262
(Tex. App.—Houston [14th Dist.] 2009, no pet.); Tex. Educ. Agency v. T.F.G., 295
S.W.3d 398, 401 (Tex. App.—Beaumont 2009, no pet.).
3
Additionally, H.C.V. contends that the TEA’s request for a ruling on the PFD
improperly seeks an advisory opinion. We disagree. “An opinion is advisory
when the judgment sought would not constitute specific relief to a litigant or
affect legal relations.” Brinkley v. Tex. Lottery Comm’n, 986 S.W.2d 764, 767
(Tex. App.—Austin 1999, no pet.). A ruling on the expunction order’s scope
as to the PFD will provide specific relief to the TEA. See, e.g., Carson v. State,
65 S.W.3d 774, 785 (Tex. App.—Fort Worth 2001, no pet.) (noting that on
remand city could seek ruling on whether certain records were not subject to
expunction).
8
The primary objective in construing a statute is to ascertain and give effect to
the Legislature’s intent. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68,
74 (Tex. 2016). To ascertain that intent, a court first looks to the statute’s plain
language. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015).
We consider the text of article 55.01(a): “A person who has been placed under
a custodial or noncustodial arrest . . . is entitled to have all records and files relating
to the arrest expunged. . . .” (emphasis added). With respect to whether the conduct
underlying the arrest is subject to expunction, the statute’s plain text limits the scope
of expunction to “the arrest.” Cf. S.C., 305 S.W.3d at 263 (“we do not construe the
statute to encompass investigative files and records that existed prior to, and
independent of, the ultimate arrest”); id. at 268 (“Likewise, when concluding the
statute does not necessarily encompass expunction of investigative files and records,
we find no distinction between an investigation resulting in the petitioner’s arrest
and an investigation pursued for some other purpose; the same underlying conduct
is the focus of both investigations.”). The Legislature could have included in the
statute’s scope, for example, the expunction of the petitioner’s conduct that led to
the arrest, but it did not do so.4
4
It is the Legislature’s prerogative—not this Court’s—to broaden the statute’s
scope. See Tex. Dep’t Pub. Safety v. J.H.J., 274 S.W.3d 803, 806 (Tex. App.—
Houston [14th Dist.] 2008, no pet.) (stating that courts have no equitable
power to extend the protections of the expunction statute beyond its stated
provisions).
9
In addition to the statute’s plain language, we note that several Texas courts,
including the Supreme Court of Texas, have discussed the purpose of the expunction
statute and the legislative intent. “The legislature intended section 55.01 to permit
the expunction of records of wrongful arrests.” Harris Cty. Dist. Attorney’s Office
v. J.T.S., 807 S.W.2d 572, 574 (Tex. 1991) (emphasis added); see also Tex. Dep’t
Pub. Safety v. G.B.E., 459 S.W.3d 622, 625 (Tex. App.—Austin 2014, pet. denied)
(explaining that expunction statute “allows a person who has been arrested for the
commission of an offense to have all information about the arrest” expunged)
(emphasis added); S.C., 305 S.W.3d at 263 (“The Texas Supreme Court, our court,
and sister courts have recognized that the statute was enacted to enable a person who
is wrongfully arrested to expunge his arrest record.”) (emphasis added) (citing
cases). But the “statute’s purpose is not to eradicate all evidence of wrongful
conduct.” In re State Bar of Tex., 440 S.W.3d 621, 626 (Tex. 2014) (emphasis
added).
“More specifically, the statute was enacted to prevent the record of a wrongful
arrest from negatively impacting a person for the remainder of his life.” S.C., 305
S.W.3d at 263–64 (emphasis added). The expunction statute even protects
wrongfully accused persons “from inquiries about their arrests.” State Bar of Tex.,
440 S.W.3d at 624 (emphasis added). The expunction statute provides that “the
person arrested may deny the occurrence of the arrest and the existence of the
10
expunction order,” and if questioned under oath in a criminal proceeding, “may state
only that the matter in question has been expunged.” TEX. CODE CRIM. PROC. art.
55.03(2), (3). And notably, the statute does not provide that the person arrested may
deny the occurrence of the conduct or any investigation of the conduct that led to the
arrest.
There is no dispute that all references to H.C.V.’s arrest and prosecution in
the PFD must be expunged. The dispute is whether the entire PFD is a record
“relating to the arrest” and must be expunged. The TEA relies on S.C. as support for
its position and criticizes T.F.G. We find T.F.G. to be both distinguishable and
unpersuasive.
T.F.G. involved the TEA and a teacher who, unlike H.C.V., had been
acquitted on the charge of indecency with a child. T.F.G., 295 S.W.3d at 399. Also
unlike H.C.V.’s case, the alleged conduct had occurred almost five years before the
teacher was arrested, and because of that passage of time, the court emphasized that
the TEA may have had documents relating to the teacher apart from law enforcement
records relating to the criminal investigation, arrest, and prosecution of the teacher.
Id. at 403. The court correctly noted that the intent of the statute “is not to erase all
evidence of the underlying conduct, . . . .” Id. But we disagree with the next statement
in T.F.G. that the statute’s intent is “to expunge any evidence of the criminal
investigation . . . for that conduct” and with its conclusion that records of the criminal
11
investigation related to the arrest should be expunged. Id. In S.C., the Fourteenth
Court also disagreed with T.F.G., noting:
However, we disagree with the court’s injecting files and records
relating to the “criminal investigation” into the scope of
expunction. The court did not conduct any analysis to demonstrate the
statute authorizes such relief. For the reasons discussed above, we
conclude its opinion regarding expunction of files and records
pertaining to the “criminal investigation” does not comport with the
statute, and we decline to follow this portion of the opinion.
S.C., 305 S.W.3d at 268 (citations omitted). The court further noted the illogical
consequence of construing the statute to include expunction of the conduct that led
to the arrest, for under that reasoning,
a person who was eventually arrested may obtain expunction of records
of the investigation whereas a person who was investigated but not
arrested has no such right. We cannot conclude the legislature intended
to afford greater rights to a person who was arrested than to one who
was not arrested.
Id. at 265.
S.C. presents a preferable case-by-case approach, along with an analysis and
conclusion guided by the statute’s intent. Id. at 268–69. That case involved the State
Securities Board’s investigation of S.C. and a subsequent indictment for securities
fraud and engaging in organized criminal activity to commit theft. Id. at 259. After
the charges were dismissed and S.C. petitioned for expunction, the Board argued
that its files and records pertaining to its investigation of S.C. that did not specifically
reference the arrest were not subject to expunction, while S.C., like H.C.V. here,
12
argued in contrast that all of the Board’s investigative files and records related to his
arrest and were subject to expunction. Id. at 259–62.
We similarly conclude that the portions of the PFD that describe H.C.V.’s
underlying conduct are not subject to expunction because they are not “records and
files relating to the arrest.” Accord id. at 267–68 (concluding that petitioner was not
entitled to expunction of all the Board’s files and records pertaining to its
investigation). Rather, H.C.V. is entitled to expunction of only the PFD’s references
to her arrest and prosecution, which can easily be accomplished by redaction (as the
trial court stated at the hearing). See TEX. CODE CRIM. PROC. art. 55.02, § 5(a)(1)
(“each official or agency . . . shall . . . , if removal is impracticable, obliterate all
portions of the record or file that identify the person who is the subject of the order
and notify the court of its action”) (emphasis added); see S.P. v. Dallas Cty. Child
Welfare Unit of Tex. Dep’t of Human Resources, 577 S.W.2d 385, 388 (Tex. Civ.
App.—Eastland 1979, writ ref’d n.r.e.) (modifying expunction order to provide for
expunction (i.e., redaction) of “references” in reports relating to arrest).
We sustain in part the TEA’s second issue and modify the trial court’s order
to provide for the redaction of the PFD’s references to H.C.V.’s arrest and
prosecution. See S.C., 305 S.W.3d at 269 (modifying expunction order on appeal);
S.P., 577 S.W.2d at 388 (same).
Conclusion
13
The trial court did not err in granting H.C.V.’s petition for expunction, but it
erred in denying the TEA’s motion to allow it to redact and retain the PFD.5 We
modify subpart (2) of the order of expunction to include the following:
However, the Texas Education Agency and the Texas State Board of
Educator Certification may retain a version of the Proposal for Decision
pertaining to H.C.V. with findings 25–28 redacted.
The order of expunction is affirmed as modified.
Richard Hightower
Justice
Panel consists of Justices Lloyd, Kelly, and Hightower.
Lloyd, J., dissenting, in part, and concurring, in part.
5
We repeat that the trial court correctly noted at the hearing that the TEA could
redact the arrest information and retain the redacted PFD.
14