EX PARTE E.H. v. the State of Texas, 602 S.W.3d 486

Background

E.H. pleaded guilty to felony online solicitation of a minor and was placed on court-ordered community supervision under Chapter 42A.
Texas Code Crim. Proc. § 55.01(a)(2) bars expunction if “there was court-ordered community supervision under Chapter 42A for the offense.”
The Court of Criminal Appeals later held the online-solicitation statute unconstitutional (Ex parte Lo), and petitioners including E.H. sought expunction of arrest records.
The Supreme Court majority concluded that because the underlying statute was declared unconstitutional the community supervision did not qualify as “court-ordered community supervision under Chapter 42A for the offense,” allowing expunction.
Justice Blacklock dissenting: he argues the historical fact remains that a court ordered community supervision and the statute’s later invalidation does not erase past orders; therefore E.H. fails § 55.01(a)(2) and is not entitled to expunction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 55.01(a)(2)’s bar applies when supervision was imposed under a statute later declared unconstitutional	E.H.: Because the statute was declared unconstitutional, there was no valid “court-ordered community supervision under Chapter 42A for the offense,” so expunction is available	State: The court-ordered supervision actually occurred; the statute’s later invalidation does not erase that historical fact, so § 55.01(a)(2) bars expunction	Majority: Held expunction available because the invalidated statute means there was no qualifying court-ordered supervision for the offense; dissent would deny relief
Whether a judicial declaration of unconstitutionality renders past orders/judgments nonexistent (“void ab initio” for all purposes)	E.H.: A statute declared unconstitutional is void ab initio, so orders entered under it cannot be treated as legitimate bases to deny expunction	State: Declarations of unconstitutionality curtail prospective enforcement but do not retroactively erase historical orders and judgments	Majority: Treats the statute as void such that the supervision does not qualify for § 55.01(a)(2); dissent rejects erasure of historical orders
Whether there was an “offense” for purposes of § 55.01 when the underlying statute was later invalidated	E.H.: Because the statute was voided, no offense ever existed, so supervision was not “for the offense”	State: The offense existed at the time; the fact of arrest, plea, and supervision are historical facts independent of later constitutional rulings	Majority: Concludes no qualifying offense existed for § 55.01 purposes; dissent says the offense and supervision occurred and statute’s invalidation does not change that fact

Key Cases Cited

Marbury v. Madison, 5 U.S. 137 (1803) (establishes judicial power to say what the law is)
Whitman v. American Trucking Ass'ns, 531 U.S. 457 (2001) (canon against importing major changes via ancillary or surplusage text)
In re State Bar of Texas, 440 S.W.3d 621 (Tex. 2014) (expunction is statutory grace, not a constitutional right)
Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132 (Tex. 1994) (plain-meaning rule; avoid extrinsic aids when statute is clear)
Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2014) (decision invalidating online-solicitation statute)
Reyes v. State, 753 S.W.2d 382 (Tex. Crim. App. 1988) (discusses language that a statute may be considered "void ab initio")
Pidgeon v. Turner, 538 S.W.3d 73 (Tex. 2017) (court opinion noting that a law remains on the books until repealed even after a judicial invalidation)
Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006) (observes no procedure for courts to purge statutes from law books)