      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00675-CV



                                    Anthony Fuller, Appellant

                                                  v.

                                   The State of Texas, Appellee


      FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
         NO. 226,310-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Anthony Fuller appeals a district court order denying his petition to expunge records

related to his arrests on two counts of possessing child pornography that were indicted but

ultimately dismissed. Fuller sought to establish his entitlement to expunction as a matter of right

under article 55.01(a)(2) of the code of criminal procedure. See Tex. Code Crim. Proc. Ann.

art. 55.01(a)(2) (West 2006); see also Heine v. Texas Dep’t of Pub. Safety, 92 S.W.3d 642, 648

(Tex. App.—Austin 2002, pet. denied) (explaining that if petitioner proves each condition for

expunction under article 55.01(a)(2), trial court has mandatory duty to grant that remedy). There is

no dispute that Fuller met his burden except with regard to the conditions set forth in paragraph (A)

of article 55.01(a)(2):


        (A) an indictment or information charging the person with commission of a felony
        has not been presented against the person for an offense arising out of the transaction
        for which the person was arrested or, if an indictment or information charging the
       person with commission of a felony was presented, the indictment or information has
       been dismissed or quashed, and:

               (i) the limitations period expired before the date on which a petition
               for expunction was filed under Article 55.02; or

               (ii) the court finds that the indictment or information was dismissed
               or quashed because the presentment had been made 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 because it was void;


See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(A). It is undisputed that, in district court

Cause Nos. 55,192 and 55,193, indictments were presented charging Fuller with possession of

child pornography, a felony, and that both indictments were dismissed on November 24, 2004,

for the reason that Fuller had been sentenced in another felony proceeding. Fuller has conceded

that he cannot satisfy the requirements in subparagraph (ii) of paragraph (A). However, he asserts

that he met his burden under subparagraph (i) to prove that the limitations periods for the alleged

child pornography possession offenses had expired and that this suffices to satisfy paragraph (A).

The State argues that Fuller could satisfy paragraph (A) only by proving the requirements of

subparagraph (ii) and that subparagraph (i) applies only in cases when no indictment or information

charging a felony offense is presented.

               In T. C.R. v. Bell Co. Dist. Attorney’s Office, No. 03-08-00627-CV, ___ S.W.3d ____,

2009 Tex. App. LEXIS ____ (Tex. App.—Austin Aug. 6, 2009, no pet. h.), we determined that in

cases where an indictment or information charging a felony has been presented in connection with

the petitioner’s arrest and later dismissed or quashed, the petitioner can satisfy paragraph (A) by

proving either the requirements of subparagraph (i) or (ii). Consequently, Fuller is entitled to

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expunction if he met his burden of proving that the limitations periods for his child pornography

possession offenses expired before his expunction petition was filed. The State disputes whether

Fuller met this burden. However, the record demonstrates conclusively that he did.

               The State acknowledges that the statute of limitations for possession of

child pornography is three years. See Tex. Code Crim. Proc. Ann. art. 12.01(6) (West Supp. 2008).

The district court found that both indictments charging Fuller with this offense were dismissed on

November 24, 2004. These findings have not been challenged by either party. Although Fuller did

not present evidence establishing when he allegedly committed the offenses or even when he

was indicted for them, the record reflects that the file-stamped date of his live expunction petition

is July 25, 2008. This date is more than three years after the date Fuller’s indictments for

child pornography possession were dismissed. Thus, Fuller necessarily filed this pleading after the

three-year limitations period for the offenses had expired. Consequently, Fuller has satisfied the

requirements of paragraph (A) as a matter of law.

               As there is no dispute that Fuller also satisfied article 55.01(a)(2)’s other conditions,1

the district court had a mandatory duty to grant his expunction petition, and, consequently, abused

its discretion in denying it. See Heine, 92 S.W.3d at 648. Accordingly, we reverse the district

court’s denial of Fuller’s expunction petition and remand to the district court for the entry of

appropriate orders expunging the files and records related to Cause Nos. 55,192 and 55,193. See

Tex. Code Crim. Proc. Ann. art. 55.02 (West Supp. 2008).


       1
          As in T.C.R., we express no opinion regarding whether the circumstances of Fuller’s
dismissals might implicate other conditions in article 55.01(a)(2), as that question is not before us.


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                                          _____________________________________________

                                          Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop

Reversed and Remanded

Filed: August 6, 2009




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