Texas Education Agency v. S.E.H. ( 2018 )

Opinion issued December 28, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00420-CV
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TEXAS EDUCATION AGENCY, Appellant
V.
S.E.H., Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case No. 15-DCV-227070
CONCURRING OPINION ON EN BANC RECONSIDERATION
The Texas Court of Criminal Appeals has expressly declared that section
33.021(b) of the Texas Penal Code (“online solicitation of a minor”),1 the statutory
1
TEX. PENAL CODE ANN. § 33.021(b) (Vernon 2017).
provision under which appellant, S.E.H., was convicted, is facially unconstitutional.
See Ex Parte Lo, 424 S.W.3d 10, 27 (Tex. Crim. App. 2013). An unconstitutional
statute is “void from its inception,” and “when a statute is adjudged to be
unconstitutional, it is as if it had never been.” 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. 1988)). In other words, “an unconstitutional statute in the criminal area is to
be considered no statute at all.” Id. (quoting Reyes, 753 S.W.2d at 383). As such, a
judgment entered against a defendant for violation of an unconstitutional statute is
also void. See Reyes, 753 S.W.2d at 383 (“[G]enerally a void law is no law and
confers no rights, bestows no power on anyone and justifies no act performed under
it.”) (citing Sharber v. Florence, 113 S.W.2d 604 (Tex. 1938)). “[W]here an original
judgment imposing [community supervision] is void, there is no judgment imposing
[community supervision], and, accordingly, nothing to revoke.” Martinez v. State,
194 S.W.3d 699, 701 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing Nix v.
State, 65 S.W.3d 664, 668–69 (Tex. Crim. App. 2001)).
Appellee, S.E.H., was convicted of the offense of online solicitation of a
minor under section 33.021(b) of the Texas Penal Code, which, at the time, provided
as follows:
(b) A person who is 17 years of age or older commits an offense if,
with the intent to commit an offense listed in Article 62.001(5)(A),
(B), or (K), Code of Criminal Procedure, the person, over the
Internet, by electronic mail or text message or other electronic
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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.
TEX. PENAL CODE ANN. § 33.021(b) (Vernon 2017). In Ex Parte Lo, the court of
criminal appeals held that this provision is facially unconstitutional. 424 S.W.3d at
27.
Because the statutory provision under which S.E.H. was convicted is void, the
judgment in which the trial court imposed community supervision upon him is also
void. See Smith, 463 S.W.3d at 895; Martinez, 194 S.W.3d at 701. Thus, there is
no logical basis to hold that the court below erred in granting S.E.H. an expunction
of his conviction. The fact that the trial court had placed S.E.H. on community
supervision is of no consequence.
Respectfully, the dissent’s interpretation of the expunction statute2 would lead
to the ultimate absurd result: a situation in which it would impose upon S.E.H. the
lasting stigma of a felony conviction that is based upon a void judgment. Moreover,
to reach such a result, this Court would have to overrule the binding precedent of
Harris County District Attorney’s Office v. D.W.B., 860 S.W.2d 719 (Tex. App.—
Houston [1st Dist.] 1993, no pet.). However, there is a “strong presumption” against
2
TEX. CODE CRIM. PROC. ANN. art. 55.01(a) (Vernon 2018).
3
overruling precedent. Gutierrez v. Collins, 583 S.W.2d 312, 317 (Tex. 1979). Under
the rule of stare decisis, we should overrule a previous holding of this Court only for
very important reasons and after careful deliberation. And it should go without
saying that we should not overrule binding precedent to reach a patently erroneous
result.
Accordingly, I concur in the judgment of the Court.
Terry Jennings
Justice
The panel consisted of Chief Justice Radack and Justices Brown and Lloyd.
En banc reconsideration was granted. TEX. R. APP. P. 49.7.
The en banc court consists of Chief Justice Radack and Justices Jennings, Keyes,
Higley, Bland, Massengale, Brown, Lloyd, and Caughey.
Justice Massengale, writing for the en banc court, joined by Chief Justice Radack
and Justices Keyes, Higley, Bland, Brown, and Caughey.
Justice Jennings, concurring in the judgment, joined by Justice Higley.
Justice Caughey, concurring, joined by Justices Keyes and Brown.
Justice Lloyd, dissenting.
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