HOUSTON -- A former Texas teacher who fought for the expunction of his arrest for soliciting a minor online won his case in a lower court and in the Texas First District Court of Appeals on Feb. 28.
Justice Richard Hightower authored the opinion. Justice Peter Kelly concurred, and Justice Russell Lloyd concurred in part and dissented in part.
The teacher, whose identity only comes as his initials, H.C.V., asked the Harris County District Court to expunge from his record the arrest and prosecution for the state-jail felony offense that came from his solicitation. He pleaded guilty to soliciting whom he thought was a 13-year-old girl online. The lower court granted the request and the Texas Education Agency appealed, challenging the lower court’s granting the order and its scope in general.
“We hold that the trial court properly granted the petition for expunction but erred in failing to modify the order’s scope,” the appeals court determined.
TEA first said that H.C.V. wasn’t owed expunction because he was initially put on community supervision before getting jail time for failing to register as a sex offender. TEA also argued that if H.C.V. was entitled to expunction, the lower court’s order is too broad since the judge’s five-page proposal for decision (PFD) didn’t even have information that was owed expunction.
TEA’s first issue was overruled as the appeals court looked at one of its previous cases concerning TEA. For that case the appeals court found that “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.” Considering this, the prosecution was considered “void,” according to the lawsuit.
As for the second issue, the appeals court ultimately had to decide if the entire PFD should be expunged or if redaction of some of the information is more fitting.
“We conclude that portions of the PFD that describe H.C.V.’s underlying conduct are not subject to expunction because they are not ‘records and files relating to the arrest,’” the appeals court determined. It modified the lower court’s order concerning this part of the case.
H.C.V. only had to serve jail time when he failed to register as a sex offender. HIs previous sentence to community supervision was revoked and he, instead, was given nine months in state jail. The TEA also revoked his state-educator certification for Texas.
Still, the prosecution’s argument was later found to be unconstitutional, and H.C.V. was granted habeas corpus relief for his conviction. He also asked that his records concerning his arrest be expunged, which the lower court granted and TEA appealed.
Although Lloyd agreed with the decision to expunge the record and retain a redacted portion of the PFD, Lloyd disagreed and said H.C.V. wasn’t eligible for expunction, just as he said he disagreed in the case the appeals court referenced to back its decision.