      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00164-CV



                                  The State of Texas, Appellant

                                                  v.

                                          M. R., Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
      NO. D-1-EX-09-000652, HONORABLE CHARLES F. BAIRD, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellee M. R. filed a petition seeking the expunction of all records related to his

2003 arrest for driving while intoxicated. The State filed a general denial and special exceptions,

and M. R. filed an amended petition in response. After a hearing, the trial court signed an order

granting M. R.’s expunction request. The State appeals, arguing in three issues that the trial court’s

order was erroneous. We reverse the trial court’s order and render judgment denying M. R.’s

petition for expunction.


                                       Standard of Review

               In the State’s first issue, it asserts there is no evidence to support the trial court’s

expunction order, raising a challenge to the legal sufficiency of the evidence. See Houston Police

Dep’t v. Berkowitz, 95 S.W.3d 457, 460 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). We

conduct a legal-sufficiency review by viewing the evidence in the light most favorable to the trial
court’s findings, crediting favorable evidence if a reasonable fact-finder could have done so and

disregarding contrary evidence unless a reasonable fact-finder could not have done so. City of Keller

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); In re Expunction of A.R., 225 S.W.3d 643, 645

(Tex. App.—El Paso 2006, no pet.). A person who has been arrested for a crime may seek to have

the records of his arrest and any charges expunged if he meets the statutory requirements set out

in the code of criminal procedure. See Act of May 31, 2009, 81st Leg., R.S., ch. 1103, §17(b), 2009

Tex. Gen. Laws 3010, 3019-20 (amended 2011) (current version at Tex. Code Crim. Proc. Ann.

art. 55.01(a)(2) (West Supp. 2011)).1 Expunction is a statutory privilege, and the person seeking

expunction bears the burden of showing he has satisfied all necessary statutory conditions. A.R.,

225 S.W.3d at 646; see Berkowitz, 95 S.W.3d at 460-61; Texas Dep’t of Pub. Safety v. Wallace,

63 S.W.3d 805, 806 (Tex. App.—Austin 2001, no pet.). The statute requires strict compliance, and

courts do not have the equitable power to expunge records. Berkowitz, 95 S.W.3d at 460.


                                              Discussion

                In its first issue, the State argues that M. R. did not prove that he had not been

convicted of a felony within the five years before his arrest, one of the elements required to be

proven before he can show himself entitled to expunction.2 See Act of May 31, 2009, 81st Leg., R.S.,

ch. 1103, §17(b), 2009 Tex. Gen. Laws at 3019-20 (amended 2011) (if indictment or information

is presented and later quashed or dismissed, petitioner must prove (1) charge dismissed or quashed



       1
          M. R.’s arrest took place in 2003, and the statute has since been amended. We will cite to
the version of the statute that was applicable to M. R.’s arrest.
       2
           M. R. did not respond to this issue in his appellate brief.

                                                   2
because of lack of probable cause or because indictment or information was void; (2) person was

released, charge did not result in final conviction, charge no longer pending, and no community

supervision was ordered for offense other than Class C misdemeanor; and (3) person was not

convicted of felony within five years before arrest). We agree.

                In his verified petition, M. R. stated that he had not been convicted of a felony in the

five years before the arrest. In response, the State entered a general denial, stating that it denied

“each and every allegation in the petition and respectfully demand[ed] strict proof thereof.” The

State also specially excepted that M. R.’s petition “does not plead all elements of the cause of

action,” specifically arguing that M. R. had not alleged that he had not been placed on community

supervision. M. R. then filed an amended petition, in which he again stated he had “not been

convicted of a felony in the five years preceding the date of the arrest.”

                Although M. R. filed a verified petition alleging he had not been convicted within

the five years before his arrest, the State filed a general denial, requiring M. R. to prove each

element of his expunction claim. See A.R., 225 S.W.3d at 646; State v. Herron, 53 S.W.3d 843, 847

(Tex. App.—Fort Worth 2001, no pet.); Ex parte Myers, 24 S.W.3d 477, 481 (Tex. App.—Texarkana

2000, no pet.); Texas Dep’t of Pub. Safety v. Moran, 949 S.W.2d 523, 526 (Tex. App.—San Antonio

1997, no writ).3 At the hearing on his petition, M. R. did not present any testimony or other evidence.




        3
          See also Texas Dep’t of Pub. Safety v. Sorrell, No. 03-06-00518-CV, 2008 Tex. App.
LEXIS 9488, at *3 (Tex. App.—Austin Dec. 19., 2008, no pet.) (mem. op.) (“When a party files a
general denial in the trial court, the plaintiff is put to proof on all issues alleged in his petition.”);
Texas Dep’t of Pub. Safety v. Borhani, No. 03-08-00142-CV, 2008 Tex. App. LEXIS 7509, at *9-10
(Tex. App.—Austin Oct. 3, 2008, no pet.) (mem. op.) (“The allegations alone in a verified petition,
after being put in issue by a general denial, do not constitute proof of those allegations.”).

                                                    3
The only evidence admitted was four documents presented by the State. Therefore, M. R. did not

present any evidence to support his assertion that he had not been convicted of a felony within the

five years before he was arrested. See A.R., 225 S.W.3d at 646-47; Herron, 53 S.W.3d at 847-48;

Myers, 24 S.W.3d at 481. Because “[t]he record discloses a complete absence of evidence of a vital

fact,” the trial court erred in granting M. R.’s expunction request. See Herron, 53 S.W.2d at 848.


                                            Conclusion

               We sustain the State’s first issue. We reverse the trial court’s order of expunction

and render judgment denying M. R.’s petition for expunction. See A.R., 225 S.W.3d at 647; Herron,

53 S.W.2d at 845, 848; Myers, 24 S.W.3d at 481; Moran, 949 S.W.2d at 527. Because the State’s

first issue is dispositive of the case, we need not decide the other two issues.



                                               __________________________________________

                                               David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Pemberton

Reversed and Rendered

Filed: March 27, 2012




                                                  4
