May 22, 2020

Texas Supreme Court

Ex Parte E.H.

No. 18-0932                            5/15/20


Is a petitioner—who pleaded guilty and completed court-ordered community supervision—entitled to an expunction because the statute under which he was indicted was declared unconstitutional five months after completion of his community supervision?


Yes. The Court held that “there was no court-ordered community supervision under Chapter 42A for the offense” in the petitioner’s case because the court order placing him on community supervision was void from its inception. Because the Texas Department of Public Safety (“DPS”) did not challenge the petition for expunction on any other ground, the petitioner was entitled to have records and files relating to the arrest expunged. Read Opinion.

Dissenting (Blackblock, J.):

“My disagreement is with the Court’s application of the expunction statute. As I read the legislative expunction rules, there is no difficulty applying them to this case. E.H. must show that ‘there was no court-ordered community supervision under Chapter 42A for the offense.’ Tex. Code of Criminal Procedure Art. 55.01(a)(2). There plainly was, so E.H. cannot show there was not, and his expunction petition must be denied.” Read Opinion.


The practical effect of this decision is to allow expunction of cases dismissed under Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013) and Ex parte Thompson, 442 S.W.3d 325 (Tex. Crim. App. 2014), even if those persons were convicted or placed on some form of probation. Some might view this as a fascinating battle involving competing “plain language” analyses. But most will not. Civil appellate practitioners get a new rule regarding “restricted appeals” that may make it easier to bring a restricted appeal—you may have heard the sounds of Bluebooks, Greenbooks, Modern Legal Usage tossed in the air in joy or disgust.

In Re Lester

No. 18-1041                            5/15/20


Is the petitioner entitled to wrongful-imprisonment compensation under the Tim Cole Act after the petitioner—unaware that his prosecution was illegal because the Court of Criminal Appeals had already ruled Penal Code §33.021(b) (Online Solicitation of a Minor) unconstitutional—pleaded guilty to the charge and received a five-year deferred adjudication sentence?


Yes. The Court concluded that the petitioner was entitled to Tim Cole Act compensation because the conduct for which he was imprisoned was not a crime at any time during his criminal proceedings—the Court of Criminal Appeals had already declared the online-solicitation statute unconstitutional. Therefore, the petitioner was “actually innocent in the same way that someone taking a stroll in the park is actually innocent of the crime of walking on a sidewalk. No such crime exists.” Read Opinion.

Dissenting (Blacklock, J., joined by Boyd, J., as to Part I only):

“As the Court interprets the Tim Cole Act, the Legislature has done something quite surprising. It has decided to pay people who admit to committing acts the Legislature itself deemed criminal. By invoking the ‘actual-innocence’ standard from habeas corpus law, however, the Legislature attempted to make sure this very outcome would not occur. The Court’s decision today skirts around the statutory text, deviates from prior decisions of this Court and the CCA, and misapprehends the effect of judicial declarations of a statute’s unconstitutionality. We should apply the statute exactly as written and deny Lester’s petition. I respectfully dissent.” Read Opinion.

Dissenting (Boyd, J.):

“I join Section I of Justice Blacklock’s dissenting opinion, concluding that Lester’s right to compensation depends not on whether we think Lester was ‘actually innocent’ of the crime for which he was sentenced, but on whether the Court of Criminal Appeals granted Lester habeas relief for that reason. And I agree with Justice Blacklock that the Court of Criminal Appeals did not grant Lester relief based on actual innocence. But I agree with that conclusion for a completely different reason.” Read Opinion.


For criminal practitioners, this case represents a failure of the trial court, the prosecution, and the defense, because the petitioner was convicted of a statutory offense that had been declared unconstitutional by the Court of Criminal Appeals before the defendant sent a minor the text that led to his prosecution. The petitioner succeeded in obtaining compensation under the Tim Cole Act because the statute was struck down prior to his conduct. The Court distinguished this case from Ex parte Fournier, 473 S.W.3d 789 (Tex. Crim. App. 2015), where the Court of Criminal Appeals held that a person convicted of online solicitation prior to the statute being struck down did not meet either of the standards for actual innocence.

In Re Bluitt

No. 18-1053                            5/15/20


Does Health and Safety Code §841.061(d)(1) grant a person alleged to be a sexually violent predator the right to physically appear in person at trial?


Yes. The “right to appear at the trial” under Health and Safety Code §841.061(d)(1) includes the right to appear in person. The videoconferencing provision applies only to certain post-commitment hearings: “a hearing on the modification of civil commitment requirements under §841.082 or a hearing under Subchapter F or G.” The videoconferencing provision does not mention the initial trial that determines whether the person is a sexually violent predator. Read Opinion.


This case seems particularly important in the era of COVID-19, although the trial took place before the pandemic. While it is not controlling on the issue of whether a defendant could be compelled to attend a criminal trial, it would certainly be cited as persuasive authority when an appellate court reverses a sexually violent predator ruling for compelling a defendant to appear at a criminal trial by video. It is well settled that a criminal defendant must be present at his trial unless he “voluntarily absents” himself from the trial.

In the Interest of Z.N.            

No. 19-0590                            5/15/20


Does a conviction for indecency with a child, by itself, support an inference that a child has suffered serious injury as a result of the offense and can thus constitute legally sufficient evidence supporting a finding to terminate a parent’s rights to a child under Family Code §161.001(b)(1)(L)?


Yes. The Court held that, under §161.001(b)(1)(L)(iv), a parent’s conviction for indecency with a child can constitute legally sufficient evidence that the parent was “criminally responsible” for the “serious injury of a child.” The Court reached this conclusion based on the plain language of Family Code §161.001(b)(1)(L) and Penal Code §21.11. Read Opinion.


While the Court found that the mere fact of conviction of indecency with a child was some evidence of serious injury, that does not mean it will be factually sufficient to sustain this ground for termination. Child welfare prosecutors relying on Ground L to terminate parental rights should put on as much evidence as they can regarding the effects of the sexual abuse on the child to survive the strict sufficiency review on appeal.