EX PARTE MATTHEW KENNON MERCER v. << (2016)

OPINION

We grant rehearing on our own motion. We withdraw our opinion on original submission and substitute this opinion.¹ Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). In two cause numbers, Applicant was convicted of three counts of online solicitation of a minor. Tex. Penal Code § 33.021(b). He was sentenced to five years' imprisonment for each conviction. He did not appeal his convictions.

This Court, in Ex parte Lo, held unconstitutional the online solicitation of a minor statute for which Applicant was convicted. Ex parte Lo, 424 S.W.3d 10 (Tex. Crim. App. 2013). Applicant filed this habeas application based on the Lo decision and asks that his conviction be set aside. The State recommends that relief be granted in this cause. We agree.

Relief is granted. The judgments in Cause Nos. 380-80046-10 & 380-80047-10 in the 380th District Court of Collin County are set aside and Applicant is remanded to the custody of the Sheriff of Collin County to answer the charges as set out in the indictments so that the indictments may be disposed of in accordance with this Court's opinion in Ex parte Lo. The trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

FOOTNOTES

1.   We also recall our mandate issued February 8, 2016.