Google, Inc. v. Expunction Order , 2014 Tex. App. LEXIS 6126 ( 2014 )

Opinion issued June 5, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00228-CV
———————————
GOOGLE, INC., Appellant
V.
EXPUNCTION ORDER, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Case No. 12CV1370
OPINION
The Commission for Lawyer Discipline filed a notice to nonsuit an action it
had brought against Calvin Jackson. Jackson filed a motion to expunge all records
related to the action. The trial court nonsuited the action and granted the motion to
expunge. The order of expunction required appellant, Google, Inc., to take certain
action, even though it had never been a party to the suit. Google filed a notice of
appeal and now argues that (1) the expunction order violates the Communications
Decency Act, (2) the expunction order violates Google’s due process rights, (3) the
statute on which the expunction order purports to draw its authority for expunction
does not apply to Google specifically or to the action in general, (4) the
proceedings were required to be public, and (5) the expunction order is an
unconstitutional prior restraint on Google’s right to free speech.
We reverse and vacate the trial court’s order as it applies to Google.
Background
A county court at law judge from Galveston County filed a grievance against
Jackson, alleging certain improper actions in a proceeding before his court. The
Commission issued a complaint, and Jackson elected to proceed in district court.
Some time later, the Commission filed a motion to nonsuit the action it had
brought against Jackson. The same day, the trial court signed an order nonsuiting
the action with prejudice.
Two days later, Jackson filed a motion for expunction of all records relating
to the disciplinary action. Jackson identified the motion as “unopposed.” The
motion identified Google, among others, as an entity that “may have records
pertaining to Jackson in connection with the disciplinary action and which are
2
subject to expunction.” The motion asked the trial court to require all parties that
he had identified to have relevant records to expunge those records.
The trial court signed the proposed expunction order. The order identified
Google as an entity to whom the order must be sent. The order further required all
identified recipients to expunge or destroy all records relating to the action other
than certain, specifically identified records. After receiving notice of the order,
Google timely filed a notice of appeal.
Personal Jurisdiction
We must first resolve Google’s second issue, whether the expunction order
violates its due process rights. In its reply brief, Google urges us to resolve this
appeal based on its first issue, whether the expunction order violates the
Communications Decency Act. Google argues that courts only resolve matters on
constitutional grounds if the matters cannot be resolved on non-constitutional
grounds. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003). Even so, we must
resolve jurisdictional issues before we review issues based on the merits of the
dispute. See Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228
(Tex. 2004) (recognizing “fundamental precept that a court must not proceed on
the merits of a case until legitimate challenges to its jurisdiction have been
decided”). Google’s due process claim implicates the trial court’s jurisdiction to
enter orders against Google. See TEX. R. CIV. P. 124 (requiring service, acceptance
3
or waiver of process, or appearance before judgment can be rendered against
party); PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 273 (Tex. 2012) (holding
jurisdictional defect voids judgment when defect “exposes such personal
jurisdictional deficiencies as to violate due process”).
Constitutional due process requires a party to be served with process and to
receive notice of an action to which it is an interested party. See Fehlhaber v.
Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. 1982). A judgment rendered in violation
of due process is void. Id.; PNS Stores, 379 S.W.3d at 273. As a corollary to this
rule, “[i]t is a basic tenet of American jurisprudence that before a court can affect a
person’s interest in in personam litigation, that person must either be a party to
litigation before the court or in privity to a party in litigation before the court.”
AVCO Corp. v. Interstate Sw., Ltd., 145 S.W.3d 257, 263 (Tex. App.—Houston
[14th Dist.] 2004, no pet.) (citing Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100, 110, 89 S. Ct. 1562 (1969)).
It is clear from the record that Google was never named as a party to the suit,
was never served with process, never waived or accepted process, and never made
an appearance in the suit before the expunction order was entered. Nothing in the
record establishes that Google stands in privity to the Commission or to Jackson.
Accordingly, we hold that Google was not a party to the suit and that the trial court
lacked jurisdiction to enter orders against Google. Id.
4
When a party is served but there are technical defects in the judgment, the
judgment is voidable. PNS Stores, 379 S.W.3d at 275. However, when “the
defects in service are so substantial that the defendant was not afforded due
process,” the judgment is void. Id. Here, there was no identification of Google as
a party or attempt to serve it with process. Accordingly, the judgment against it is
void and must be vacated. See id. at 272 (holding void judgment must be vacated).
We sustain Google’s second issue. Because this issue is dispositive of the
appeal, we do not need to reach the remainder of Google’s issues.
Conclusion
We reverse and vacate the portions of the trial court’s expunction order
affecting Google, Inc.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
5