Appeals court upholds expunction request by former teacher who pleaded guilty to online solicitation of a minor

By Takesha Thomas | Jan 8, 2019

HOUSTON – A state appeals court affirmed a request by a former teacher that his arrest records be expunged after he pleaded guilty to online solicitation of a minor.

On Dec. 28, 2018, the Court of Appeals for the 1st District of Texas opined that the 268th District Court of Fort Bend County didn't err when it granted S.E.H. a petition for expunction. 

"...TEA has not preserved any challenge to the form or scope of the expunction order as entered, nor to any question of whether any particular document must be expunged," Justice Michael Massengale wrote in the opinion.

S.E.H. pleaded guilty to online solicitation of a minor after he solicited sex online from a person he believed to be a 13-year-old girl over the course of several months, according to the opinion. Instead, S.E.H. was communicating with an officer as part of a sting operation.

S.E.H. eventually received deferred adjudication in the case and, according to the opinion, "as a condition of his community supervision, he surrendered his educator certification to Texas Education Agency (TEA)." 

However, after an amendment filed to the state's expunction statute the Texas Court of Criminal Appeals found Penal Code section 33.021(b) to be facially unconstitutional in Ex parte Lo. The amendment opened the door for S.E.H. to file a new claim for habeas corpus relief, dismissal of the charges against him and expunction. 

In a dissenting opinion, Justice Russell Lloyd found that S.E.H. should be ineligible for expunction.

"If the legislature had wanted to include an exception for persons like S.E.H. who were on court-ordered community supervision for violating a statute that was determined to be unconstitutional or otherwise void, it could have done so," Lloyd wrote.

According Massengale's opinion"In Ex parte Lo, the court of Criminal Appeals held that the statute under which S.E.H. was convicted, Section 33.021(b) of the Penal Code, was unconstitutionally overbroad because it prohibited a wide array of constitutionally protected speech and was not narrowly drawn to achieve only the legitimate objective of protecting children from sexual abuse."

TEA had argued against expunction in part because S.E.H. had served court-ordered community supervision and the scope of the expunction order is "overbroad to the extent it is prohibited from maintaining records memorializing S.E.H.’s conduct," the opinion states.

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