EX PARTE E.H. v. the State of Texas

IN THE SUPREME COURT OF TEXAS
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No. 18-0932
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EX PARTE E.H.

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ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
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Argued January 29, 2020

JUSTICE BOYD delivered the opinion of the Court, in which CHIEF JUSTICE HECHT, JUSTICE
GREEN, JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE DEVINE, JUSTICE BUSBY, and JUSTICE
BLAND joined.

JUSTICE BLACKLOCK filed a dissenting opinion.

The Texas Department of Public Safety filed this restricted appeal from a trial-court order

granting E.H.’s petition for expunction of arrest records under article 55.01 of the Code of Criminal

Procedure. The court of appeals agreed with the trial court and dismissed the Department’s appeal,

holding that the lack of any error on the face of the record deprived the court of jurisdiction. We

agree with both courts that E.H. qualifies for expunction, but we disagree with the court of appeals’

conclusion that the facial-error requirement is jurisdictional. We therefore reverse the court of

appeals’ judgment and reinstate the trial court’s judgment.
I.
Background

In August 2007, E.H. was indicted on two counts of felony online solicitation of a minor

under former penal code section 33.021(b).1 E.H. pleaded guilty to both counts in exchange for

five years’ deferred adjudication community supervision and a $2,000 fine. See TEX. CODE CRIM.

PROC. art. 42A.101–.111 (addressing deferred adjudication community supervision). E.H.

completed his community supervision in May 2013. Five months later, the Court of Criminal

Appeals declared former section 33.021(b) facially unconstitutional because it prohibited

constitutionally protected speech and was not narrowly drawn to impose the least restrictive means

to achieve the government’s compelling interest in protecting children from sexual abuse. Ex parte

Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013).

After Lo, E.H. applied for a writ of habeas corpus seeking relief from the order that placed

him on community supervision. See TEX. CODE CRIM. PROC. art. 11.072 (addressing procedure for

habeas applications in community-supervision cases).2 The trial court granted E.H.’s application,

1
At the time, the code provided:

A person who is 17 years of age or older commits an offense if, with the intent to
arouse or gratify the sexual desire of any person, the person, over the Internet, by
electronic mail or text message or other electronic message service or system, or
through a commercial online service, intentionally:
(1) communicates in a sexually explicit manner with a minor; or
(2) distributes sexually explicit material to a minor.

See Act of May 21, 2007, 80th Leg., R.S., ch. 610, § 2, 2007 Tex. Gen. Laws 1167, 1167–68 (current version at TEX.
PENAL CODE § 33.021(b)).
2
Others who were indicted under former section 33.021(b) have also sought habeas relief. See, e.g., Tex.
Educ. Agency v. S.E.H., 571 S.W.3d 372, 373 (Tex. App.—Houston [1st Dist.] 2018, pet. pending); Ex parte C.D.,
No. 12-17-00309-CV, 2018 WL 3569838, at *1 (Tex. App. —Tyler July 25, 2018, pet. pending) (mem. op.); Ex parte
J.H., No. 02-17-003338-CV, 2018 WL 4024757, at *1 (Tex. App.—Fort Worth Aug. 23, 2018, pet. pending) (mem.
op.).
2
dismissed the indictment against him, and declared the community-supervision order void. E.H.

then filed a petition for expunction, which the court granted.

Nearly six months after the court granted expunction, the Department filed this restricted

appeal arguing that E.H. does not qualify for expunction because the criminal court had entered an

order placing him on deferred adjudication community supervision. Ex parte E.H., 582 S.W.3d

445, 446–47 (Tex. App.—Fort Worth 2018). The court of appeals disagreed, holding that E.H. is

entitled to expunction because the statute under which he was indicted and the indictment itself

were void and the community-supervision conditions imposed on him “disappeared as a result of

the trial court’s grant of habeas corpus relief.” Id. at 453–54. Finding no error apparent on the face

of the record, the court dismissed the Department’s restricted appeal for want of jurisdiction. Id.

at 454. We granted the Department’s petition for review.

II.
Expunction

We agree with the trial court and the court of appeals that E.H. established his eligibility

for expunction of his arrest records. An expunction order requires governmental agencies to return,

remove, delete, or destroy all records of a person’s arrest and generally permits the person to deny

the occurrence of the arrest and the existence of the expunction order. See TEX. CODE CRIM. PROC.

art. 55.02–.03. Although the expunction statute appears within the code of criminal procedure, an

expunction proceeding is civil in nature. State v. T.S.N., 547 S.W.3d 617, 619 (Tex. 2018). Because

expunction is a statutory privilege and not a constitutional or common law right, In re State Bar of

Tex., 440 S.W.3d 621, 624 (Tex. 2014), courts must enforce the statutory requirements and “cannot

add equitable or practical exceptions . . . that the legislature did not see fit to enact,” In re Geomet

Recycling LLC, 578 S.W.3d 82, 87 (Tex. 2019). We review a trial court’s ruling on an expunction
3
petition under an abuse-of-discretion standard. But to the extent the ruling depends on a question

of law, we review it de novo because a “trial court has no ‘discretion’ in determining what the law

is or applying the law to the facts.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).

At the time of E.H.’s expunction hearing in 2017, article 55.01(a)(2) provided that a person

who is arrested but not tried for an offense3 is entitled to an expunction order if

(1) “the person has been released”;
(2) “the charge, if any, has not resulted in a final conviction and is no longer pending”; and
(3) “there was no court-ordered community supervision under Chapter 42A for the offense,
unless the offense is a Class C misdemeanor”;

“provided that”

(4) the indictment or information charging the person with the offense either
a. was not timely presented within particular deadlines following the arrest, or
b. was timely presented but was dismissed or quashed for particular reasons,
including that it “was void”; or
(5) “prosecution of the person for the offense for which the person was arrested is no longer
possible because the limitations period has expired.”

Act of May 29, 2015, 85th Leg., R.S., ch. 770, § 2.23, 2015 Tex. Gen. Laws 2321, 2373 (amended

2017, 2019) (current version at TEX. CODE CRIM. PROC. art. 55.01(a)(2)).4

The Department argues that E.H. cannot satisfy the statute’s third requirement—that “there

was no court-ordered community supervision under Chapter 42A for the offense”—because the

criminal court had, in fact, ordered E.H. to community supervision. E.H. does not dispute that the

criminal court entered an order placing him on community supervision under chapter 42A for the

3
A person who is tried for the offense is generally entitled to expunction if the person was acquitted or, if
convicted, was subsequently pardoned “or otherwise granted relief on the basis of actual innocence with respect to
that offense.” TEX. CODE CRIM. PROC. art. 55.01(a)(1); see T.S.N., 547 S.W.3d at 622 (“Under (a)(1), the acquittal or
pardon is the only prerequisite to expunction.”).
4
The legislature has amended the expunction statute numerous times. The Department argues that the trial
court and court of appeals applied the incorrect version of the statute, but it concedes that the substantive requirements
have not changed and the particular applicable version does not alter our analysis.
4
offense, but he argues that order was void from the time it was entered because the statute under

which he was indicted was unconstitutional. The Department does not dispute that the order was

void, but argues that, nevertheless, as a matter of historical fact, “there was court-ordered

community supervision” for E.H.’s offense. See Ex parte Fournier, 473 S.W.3d 789, 793 (Tex.

Crim. App. 2015) (holding that persons convicted under former section 33.021(b) could not

establish “actual innocence” because the “conduct on which the criminal prosecution was based

still exists as a matter of historical fact”).5 We must decide whether the historical reality that a

court ordered E.H. to community supervision disqualifies him for expunction when, as a legal

reality, that order was a nullity from inception.6

The Department offers several arguments in support of its proposed construction. It notes

that to obtain habeas relief from a community-supervision order, as E.H. did here, the applicant

“must be, or have been, on community supervision.” TEX. CODE CRIM. PROC. art. 11.072 § 2(b).

By requesting and obtaining habeas relief, the Department reasons, E.H. conceded that he had been

on community supervision and thus that “there was court-ordered community supervision for his

offense.” E.H. concedes that he had been on community supervision, but the very purpose of his

request for habeas relief under article 11.072 was to challenge the legal validity of the order that

5
In another case decided today, we address the issue the Court of Criminal Appeals addressed in Fournier:
whether a person who was convicted under former section 33.021(b) was later granted habeas relief on the ground
that he was “actually innocent.” See In re Lester, – S.W.3d – (Tex. 2020). Here, the issue is not whether E.H. was
actually innocent, but whether “there was no court-ordered community supervision under Chapter 42A” for his
offense.
6
The dissent believes that “whether a court order was valid or constitutional has nothing to do with whether
it was ordered by a court” because “all court orders are ‘court-ordered,’ both the valid and the invalid.” Post at __.
But the court order sentencing E.H. to community supervision was null and void because the underlying criminal
statute was void ab initio. Because the law treats unconstitutional statutes and all proceedings thereunder as if they
never existed, there was no court-ordered community supervision as a matter of law.
5
placed him there. See id. (noting that the habeas application “must challenge the legal validity” of

the conviction, the order imposing community supervision, or the conditions of community

supervision). Article 11.072, in other words, requires the historical reality of community

supervision as a basis for challenging the legal validity of the order that imposed it. But unlike

article 11.072, he argues, the expunction statute ties the legal reality to the historical reality by

requiring that “there was no court-ordered community supervision.” Id. art. 55.01(a)(2) (emphasis

added). We agree with E.H. that article 11.072 does not support the Department’s proposed

construction of article 55.01(a)(2).

The Department also notes that the expunction statute does not expressly except

community-supervision orders that are based on offenses charged under an unconstitutional statute

or are otherwise null and void. Instead, it turns simply on whether “there was” court-ordered

community supervision. Id. Citing numerous other Texas statutes,7 the Department argues that the

7
See, e.g., TEX. CIV. PRAC. & REM. CODE §§ 74.106(a)(2) (stating that a health care provider’s failure to
disclose risks may not be negligent if “there was an emergency”), 82.005(a)(1) (requiring product-liability plaintiff to
prove “there was a safer alternative design”), 171.088(a)(4) (requiring court to vacate arbitration award if “there was
no agreement to arbitrate”); TEX. CODE CRIM. PROC. arts. 11.24 (entitling person to habeas relief if petition states
“there was no sufficient cause for requiring bail”), 18.13 (requiring magistrate to discharge defendant if magistrate is
not satisfied “that there was good ground for the issuance of the warrant”), 18A.358(c)(1) (requiring suppression
motion be made before hearing unless “there was not an opportunity to make the motion”), 42.01 § 1(12) (requiring
judgment to reflect county where prosecution originated if “there was a change of venue”); TEX. EDUC. CODE
§ 51.236(a) (requiring finding that “there was reasonable cause to believe that the person has willfully disrupted the
orderly operation of the campus or facility”); TEX. EST. CODE §§ 306.002(a)(2)(B)(iii) (requiring court to grant estate
administration if “there was no good cause” for executor’s failure to timely present will for probate), 405.005(2)
(permitting executor’s closing report verifying that “there was property remaining on hand after payment of debts”);
TEX. FAM. CODE §§ 2.302(1) (providing that marriage’s validity is not affected by officiant’s lack of authority if “there
was a reasonable appearance of authority”), 58.0052(b-3)(4) (referring to investigation concluding that “there was a
reason to believe that abuse or neglect occurred”), 155.004(a)(3) (providing that court loses jurisdiction if another
court incorrectly understood that “there was no court of continuing, exclusive jurisdiction”), 262.105(b)(1)(A)
(requiring evidence that “there was an immediate danger to the physical health or safety of the child”), (2)(B)
(requiring evidence that “there was not time . . . for a full adversary hearing”), .201(g)(1) (requiring court to find that
“there was a danger to the physical health or safety of the child”), 264.5032(a)(3) (referring to investigation concluding
that “there was reason to believe that abuse or neglect occurred”); TEX. GOV’T CODE §§ 531.993(c) (requiring
ombudsman’s report to determine whether “there was wrongdoing or negligence”), 2001.175(c) (permitting court to

6
phrase “there was” necessarily refers to factual as opposed to legal realities. But some of those

statutes appear to disprove the Department’s point. For example, one statute requires courts to

vacate an arbitration award if “there was no agreement to arbitrate.” TEX. CIV. PRAC. & REM. CODE

§ 171.088(a)(4). A second entitles a person to habeas relief if the person’s petition states that “there

was no sufficient cause for requiring bail.” TEX. CODE CRIM. PROC. art. 11.24. And a third enables

a person to avoid suspension of the person’s driver’s license by showing that “there was a motor

vehicle liability insurance policy covering the motor vehicle.” TEX. TRANSP. CODE

§ 601.333(a)(1). Although we need not and do not decide the issues here, we could certainly

question the Department’s assumption that these statutes would be satisfied even if the “agreement

to arbitrate” was illegal or otherwise void, the petition challenging sufficient cause for bail had

been stricken on legal grounds, or the liability insurance policy was for some reason legally invalid

and unenforceable.8 In any event, it is one thing to require that “there was” something that may be

completely factual in nature, such as “an emergency,” “good cause,” or “an error in payment,” but

allow additional evidence if “there were good reasons for the failure to present” the evidence earlier); TEX. HEALTH
& SAFETY CODE §§ 81.050(g) (permitting court to assess costs if “there was not reasonable cause” for request to order
testing), 171.006(a)(1)(D)(ii) (requiring physician to report if “there was “insufficient time to obtain consent”); TEX.
HUM. RES. CODE § 44.003(c)(2) (requiring contractor to substantiate that “there were sufficient preparations in the
development of the services offered”); TEX. INS. CODE §§ 34.002(d) (defining “substantially justified” to mean “there
was a reasonable basis in law or fact”), 843.3385(e) (permitting HMO to recover overpayment if it determines “that
there was an error in payment of the claim”), 1106.002(a)(2) (permitting reinstatement of insurance policy if “there
was not a default in the payment of premiums”), 1111A.004(a)(1) (permitting commissioner to revoke license if “there
was a material misrepresentation in the application for the license”), 4002.008(d) (requiring report to indicate whether
“there was any disparity” in examination pass rate); TEX. LAB. CODE § 407A.404(b)(2) (permitting revocation of
approval if “there was a material misrepresentation” in application); TEX. TRANSP. CODE § 601.333(a)(1) (permitting
driver whose license was suspended to provide evidence that “there was a motor vehicle liability insurance policy
covering the motor vehicle”).
8
See, e.g., Kreit v. Brewer & Pritchard, P.C., 530 S.W.3d 231, 242 (Tex. App.—Houston [14th Dist.] 2017,
pet. denied) (holding that section 171.088(a)(4) applies when arbitration agreement existed but party seeking to vacate
arbitration award argued he did not enter into agreement in his individual capacity); Women’s Reg’l Healthcare, P.A.
v. FemPartners of N. Tex., Inc., 175 S.W.3d 365, 368 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (holding that
section 171.088(a)(4) would apply when party seeking to vacate arbitration award challenges legality of arbitration
agreement, although not when it challenges legality of entire contract).
7
quite another to require that “there was” something “court-ordered,” which necessarily raises both

factual and legal implications. In short, we cannot agree with the Department that the phrase “there

was” necessarily refers solely to a factual reality regardless of the legal reality of that fact.

The Department also argues that the statute’s structure confirms the Department’s proposed

construction. As noted, a person cannot obtain expunction under article 55.01(a)(2) simply by

making the initial showing that (1) the person has been released; (2) the charge, if any, has not

resulted in a final conviction and is no longer pending; and (3) there was no court-ordered

community supervision under Chapter 42A for the offense. Instead, a person who makes that initial

showing is entitled to expunction “provided that” the person also shows that the indictment or

information either was not timely presented or, if presented, “was dismissed or quashed” for one

of several reasons, including that “the indictment or information was void.” TEX. CODE CRIM.

PROC. art. 55.01(a)(2)(A)(i)–(ii) (emphasis added). As the Department explains, the requirement

“that the indictment or information was void” is separate and independent from the requirement

that “there was no court-ordered community supervision,” and the person seeking expunction must

show both. According to the Department, the requirement that “there was no court-ordered

community supervision” would be meaningless and superfluous if it did not include legally invalid

court orders because a showing that the indictment or information was void necessarily also shows

that “there was no [legally valid] court-ordered community supervision.” So, the Department

contends, to give meaning to both requirements we must construe the statute to require that “there

was no court-ordered community supervision” regardless of whether the court order was valid or

void.

8
We agree with the Department that when a court orders community supervision based on

a void indictment, the community-supervision order is itself necessarily also void. So under E.H.’s

and the court of appeals’ construction, a person who seeks expunction under article 55.02(a)(2) on

the ground that the indictment was void will necessarily also establish that “there was no court-

ordered community supervision.” But we do not agree that this construction renders either

requirement wholly superfluous. The statute permits a person who makes the initial showing to

obtain expunction on several grounds other than that the indictment or information was void,

including that (1) the indictment or information was not timely presented, (2) the person completed

a veterans treatment court program, a mental health court program, or a pretrial intervention

program, (3) the indictment was presented “because of mistake, false information, or other similar

reason indicating absence of probable cause at the time of the dismissal to believe the person

committed the offense,” or (4) “prosecution of the person for the offense for which the person was

arrested is no longer possible because the limitations period has expired.” Id. art. 55.01(a)(2)(d) &

(e). Under E.H.’s and the court of appeals’ construction, a person who seeks expunction on any of

these grounds must still show that “there was no court-ordered community supervision,” and may

do so by showing that the order was void for some reason other than that the indictment itself was

void.

The Department’s construction, by contrast, renders the phrase “court-ordered”

superfluous in all circumstances. Under the Department’s approach, the statute requires only that

“there was no . . . community supervision under Chapter 42A,” deleting the phrase “court-ordered”

as if it meant nothing at all. Yet under Chapter 42A, community supervision is “the placement of

a defendant by a court under a continuum of programs and sanctions, with conditions imposed by

9
the court for a specified period.” Id. art. 42A.001(1) (emphases added). By definition, community

supervision under Chapter 42A must be court-ordered. See City of Rockwall v. Hughes, 246

S.W.3d 621, 625 (Tex. 2008) (“We use definitions prescribed by the Legislature and any technical

or particular meaning the words have acquired.”) (citing TEX. GOV’T CODE § 311.011(b)). E.H.

contends that “for something to be court ordered, there must be a valid court order,” and in the

absence of a valid community-supervision order, “there was no court-ordered community

supervision.”

We agree. Article 55.01(a)(2) required E.H. to show not just that “there was no community

supervision,” but that “there was no court-ordered community supervision under Chapter 42A for

the offense.” TEX. CODE CRIM. PROC. art. 55.01(a)(2) (emphases added). Giving effect as we must

to all of the statute’s words, we read the statute to require a showing not just that E.H. did not serve

under community supervision, but that no court order placed E.H. in community supervision for

committing a criminal offense.9 By including the references to a court order and an offense, the

statute necessarily incorporates legal realities as well as historical facts.

As the Department itself agrees, those legal realities do not exist in E.H.’s case. The statute

under which E.H. was arrested has been declared unconstitutional, the indictment against him has

9
The dissent argues that “community supervision” and “court-ordered community supervision” mean the
“exact same thing.” Post at __. That statement of course is true (as explained, all community supervision must be
court-ordered), but its truth begs the question of why the legislature would expressly refer to “court-ordered”
community supervision when it could have referred only to community supervision. We cannot just write off the
legislature’s chosen language as “linguistic redundancy.” Post at __. As the dissent highlights, and as our opinion
thoroughly explains, “we presume the Legislature says what it means and means what it says.” Post at __ (citing
Cadena Comercial USA Corp. v. Tex. Alcoholic Bev. Comm’n, 518 S.W.3d 318, 337 (Tex. 2017)). Because the statute
expressly refers to “court-ordered” community supervision, we must give that language meaning, as we do here by
requiring that the court order be valid and effective.

10
been dismissed, and the court order placing him in community supervision has been vacated. As a

matter of law, the statute was “‘void from its inception . . . as if it had never been,’” and “is to be

considered no statute at all.” Smith v. State, 463 S.W.3d 890, 895 (Tex. Crim. App. 2015) (quoting

Reyes v. State, 753 S.W.2d 382, 383 (Tex. Crim. App. 1998)). In the absence of the statute, no

“offense” ever occurred.10 See Offense, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A violation

of the law; a crime . . . .”). And like the statute, both the indictment and the court order imposing

community supervision were void ab initio and as a legal reality, never existed at all. See Fournier,

473 S.W.3d at 790 (setting aside judgments in light of Lo); Ex parte Chance, 439 S.W.3d 918,

918(Tex. Crim. App. 2014) (per curiam) (same); Lo, 424 S.W.3d at 27 (“We remand the case to

the trial court to dismiss the indictment.”); Nix v. State, 65 S.W.3d 664, 667–68 (Tex. Crim. App.

2001) (explaining that a “trial court’s judgment is accorded no respect” if the court lacked power

to render it because it is a “void judgment” and a “‘nullity’”) (quoting Ex parte Patterson, 969

S.W.2d 16, 19 (Tex. Crim. App. 1998)); Reyes, 753 S.W.2d at 383 (“An unconstitutional statute

is void from its inception and cannot provide a basis for any right or relief.”); Sharber v. Florence,

115 S.W.2d 604, 607 (Tex. 1938) (“The general rule is that a void statute is no law, and therefore

cannot confer any rights, bestows no power on any one, and justifies no acts performed under it.”)

(citations omitted); see also Vacate, BLACK’S LAW DICTIONARY (11th ed. 2019) (“To nullify or

cancel; make void; invalidate . . . .”). As the United States Supreme Court explained long ago, an

10
The dissent quotes our previous explanation that “when a court declares a law unconstitutional, the law
remains in place unless and until the body that enacted it repeals it, even though the government may no longer
constitutionally enforce it” to support its argument that the statute should not be treated as void ab initio. Post at __
(quoting Pidgeon v. Turner, 538 S.W.3d 73, 88 n.21 (Tex. 2017)). But the dissent ignores the context of this quote—
the full footnote merely explains that the petitioners had standing to seek judicial review because the laws were still
in the books. We do not deny that laws declared unconstitutional by a court remain in the books until repealed by the
legislature. Indeed, written laws do not simply vanish from existence once declared unconstitutional. But an
unconstitutional law that is factually still in the books is nevertheless legally unenforceable as if it never existed at all.
11
“unconstitutional law is void, and is no law. An offense created by it is not a crime. A conviction

under it is not merely erroneous, but is illegal and void.” Ex parte Siebold, 100 U.S. 371, 376

(1880).

We conclude that the trial court did not err by granting E.H.’s petition for expunction

because, as a matter of law, “there was no court-ordered community supervision under Chapter

42A for the offense” for which he was arrested.

III.
Restricted Appeal

Having reached the same conclusion, the court of appeals dismissed the Department’s

restricted appeal, holding that lack of error on the face of the record deprived the court of

jurisdiction. 582 S.W.3d at 448. We do not agree.

An agency protesting an expunction order “may appeal the court’s decision in the same

manner as in other civil cases.” TEX. CODE CRIM. PROC. 55.02, § 3(a). Generally, a party who

desires to appeal a trial court judgment must file a notice of appeal within thirty days after the

judgment is signed. TEX. R. APP. P. 26.1. A timely filed motion for new trial, motion to modify the

judgment, motion to reinstate, or a proper request for findings of fact and conclusions of law

extends the deadline to ninety days after the judgment is signed. TEX. R. APP. P. 26.1(a). But if the

party “did not participate—either in person or through counsel—in the hearing that resulted in the

judgment complained of” and did not timely file a post-judgment motion, request for findings of

fact and conclusions of law, or file a notice of appeal within ninety days, the party may pursue a

restricted appeal by filing a notice of appeal within six months after the judgment or order is signed.

TEX. R. APP. P. 30. A notice of restricted appeal must state that these requirements are met. TEX.

R. APP. P. 25.1(d)(7).
12
Restricted appeals under rule 30 replaced the former writ-of-error practice. TEX. R. APP. P.

30 cmt.; see Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 849 (Tex. 2004) (“The writ of error

procedure is now the restricted appeal procedure in Texas Rules of Appellate Procedure 25.1,

26.1(c), and 30.”). Review by restricted appeal affords an appellant the same scope of review as

an ordinary appeal. Norman Commc’ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)

(per curiam) (discussing writ-of-error review). To “sustain” a restricted appeal, the filing party

must show that:

(1) he filed notice of the restricted appeal within six months after
the judgment was signed;
(2) he was a party to the underlying lawsuit;
(3) he did not participate in the hearing that resulted in the judgment
complained of, and did not timely file any post-judgment
motions or requests for findings of fact and conclusions of law;
and
(4) error is apparent on the face of the record.

Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam).

The fourth requirement derives from case law and is not included within the rule’s

requirements. See Gen. Elec. Co. v. Falcon Ridge Apartments, Joint Venture, 811 S.W.2d 942, 943

(Tex. 1991) (citing Brown v. McLennan Cty. Children’s Protective Servs., 627 S.W.2d 390, 392

(Tex. 1982), as authority for fourth requirement). Its history is murky, but it generally derived from

both English and Spanish appellate practices. See Sequin v. Maverick, 24 Tex. 526, 533–35 (1859)

(explaining the error must appear on the face of the decree or pleadings and that the “evidence at

large[] cannot be ‘gone into’”); see also Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586,

588–89 (Tex. 1996) (discussing history of “anachronistic” writ-of-error practice).

We have specifically recognized that the first requirement (that the party timely file a notice

of appeal within six months) and the third (that the party did not participate in the hearing) are
13
jurisdictional. Pike-Grant, 447 S.W.3d at 887 (Tex. 2014) (treating no-participation requirement

as jurisdictional); Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999) (“The

six-month time limit is mandatory and jurisdictional.”); Texaco, 925 S.W.2d at 588 (treating no-

participation requirement as jurisdictional). But we have been less clear about the fourth

requirement. We have suggested in some cases that all four requirements are jurisdictional, broadly

stating that a restricted appeal is “available” only if all four are met, Gold v. Gold, 145 S.W.3d

212, 213 (Tex. 2004) (per curiam), and that all four are “necessary for review by writ of error,”

Quaestor, 997 S.W.2d at 227; see also Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985); Brown,

627 S.W.2d at 392. In other cases, however, we have stated that the four requirements are

necessary to “sustain” or “prevail on” a restricted appeal, suggesting that the requirements

ultimately involve the appeals’ merits, as opposed to the court’s jurisdiction. See Pike-Grant, 447

S.W.3d at 886 (stating requirements are necessary to “sustain” a restricted appeal); Ins. Co. of

State of Penn. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (per curiam) (stating requirements are

necessary to “prevail” on restricted appeal); Alexander, 134 S.W.3d at 848 (listing elements

required to “prevail” on a restricted appeal); Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152

(Tex. 1994) (per curiam) (“In order to be entitled to reversal by writ of error, a party who did not

participate at trial has six months in which to show error on the face of the record.”).

By contrast, several courts of appeals have expressly stated that all four requirements are

“mandatory and jurisdictional.” See, e.g., Osteen v. Osteen, 38 S.W.3d 809, 812 (Tex. App.—

Houston [14th Dist.] 2001, no pet.) (“Each element is mandatory and jurisdictional and cannot be

waived.”) (citing C & V. Club v. Gonzalez, 953 S.W.2d 755, 757 (Tex. App.—Corpus Christi

1997, no pet.)); Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.—San Antonio 1995, no writ)

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(“Each of these elements is mandatory and jurisdictional.”) (citing Robertson v. Hide–A–Way Lake

Club, Inc., 856 S.W.2d 841, 843 (Tex. App.—Tyler 1993, no writ) (“Each of the four requisites of

an appeal by writ of error are mandatory and jurisdictional.”)). These decisions ultimately rely,

however, on court of appeals decisions that held only that the no-participation requirement is

jurisdictional. See Lambda Constr. Co. v. Chamberlin Waterproofing & Roofing Sys., Inc., 784

S.W.2d 122, 124 (Tex. App.—Austin 1990, writ denied)) (holding only that the no-participation

requirement “is mandatory, jurisdictional, and cannot be waived.”) (citing Nutter v. Phares, 523

S.W.2d 292, 293 (Tex. Civ. App.—Beaumont 1975, writ ref’d n.r.e.) (stating that no-participation

requirement is “mandatory, jurisdictional and cannot be waived”)).

Despite our mixed messages regarding the four requirements as a whole, we have pretty

clearly suggested in several cases that the fourth requirement—that error be apparent on the face

of the record—goes to the merits of the appeal and is not jurisdictional. See, e.g., Sweed v. Nye,

323 S.W.3d 873, 875 (Tex. 2010) (per curiam) ( “We do not agree that the merits of Sweed’s case

are a consideration in determining whether he procedurally invoked the court of appeals’

jurisdiction.”); Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009) (per curiam) (stating that a

record that is “silent” on the asserted error is “insufficient to establish reversible error in

a restricted appeal”) (emphasis added); Brown, 627 S.W.2d at 392 (“The question first confronted

is not whether Brown can obtain review by writ of error, but whether, assuming such review, there

were any grounds before the court of civil appeals warranting reversal of the trial court’s

judgment.”).

We confirm today that the error-on-the-face-of-the-record requirement is not jurisdictional.

The task of determining error on the face of the record ultimately requires an analysis of the merits

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of the appellant’s grounds for appeal. Generally, at least, courts should avoid inquiring into the

merits of an appeal when deciding whether the appellant “procedurally invoked the court of

appeals’ jurisdiction.” Sweed, 323 S.W.3d at 875; State Bar of Tex. v. Gomez, 891 S.W.2d 243,

245 (Tex. 1994) (explaining that courts must generally determine their jurisdiction before

addressing “the merits of any case”). A party is “entitled to proper application of the appellate

rules regardless of the merits of his underlying case.” Sweed, 323 S.W.3d at 875.

We hold that although the first three requirements for a restricted appeal are jurisdictional,

the fourth is not. An appellant who satisfies the first three requirements establishes the court’s

jurisdiction and must then establish error from the face of the record to prevail in the restricted

appeal. See Texaco, 925 S.W.2d at 591 (rejecting finding that appellant participated in the hearing,

reversing jurisdictional dismissal, and remanding for consideration of the merits). Here, the

Department satisfied the three jurisdictional requirements but failed to demonstrate error on the

face of the record. Because that requirement is not jurisdictional, the court of appeals should have

affirmed the trial court’s judgment instead of dismissing the case for want of jurisdiction.

IV.
Conclusion

We hold that “there was no court-ordered community supervision under Chapter 42A for

the offense” in E.H.’s case because the court order placing him on community supervision was

void from its inception. Because the Department does not challenge E.H.’s petition for expunction

on any other ground, the trial court correctly held that E.H. is entitled to have records and files

relating to the arrest expunged. The Department’s failure to show error on the face of the record,

however, did not deprive the court of appeals of jurisdiction over this restricted appeal. We reverse

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the court of appeals’ judgment dismissing the Department’s appeal for want of jurisdiction and

reinstate the trial court’s judgment.

_____________________
Jeffrey S. Boyd
Justice

Opinion delivered: May 15, 2020

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