Tex. Educ. Agency v. H.C.V.

575 S.W.3d 30

TEXAS EDUCATION AGENCY, Appellant

v.H.C.V., Appellee

NO. 01-17-00210-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued February 28, 2019

Richard Hightower, Justice

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was placed on community supervision, but after H.C.V. failed to register as a sex offender, her community supervision was revoked and she was sentenced to nine months in state jail.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 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.

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, 571 S.W.3d 372, 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 376, 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 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 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 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 182^nd 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 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...