                              NUMBER 13-09-00611-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                              Appellant,

                                              v.

NORMA ZUNIGA,                                                                   Appellee.


                       On appeal from 92nd District Court
                           of Hidalgo County, Texas.


                           MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Garza
                Memorandum Opinion by Justice Rodriguez

       This is an appeal of an order of expunction. Appellee Norma Zuniga petitioned the

trial court to expunge records of her arrest for theft. The trial court granted the expunction.

Appellant Texas Department of Public Safety (Department) appeals from that order. By

two issues, the Department contends the trial court erred in ordering expunction because
(1) there is no evidence that the indictment presented against Zuniga was dismissed in

accordance with the statutory requirements of article 55.01(a)(2)(A) of the Texas Code of

Criminal Procedure, and (2) the Department did not receive notice of the hearing as

required by article 55.02, section 2(c) of the code. See TEX . CODE CRIM . PROC . ANN . arts.

55.01(a)(2)(A), 55.02, § 2(c) (Vernon Supp. 2009). We reverse and render.

                                               I. BACKGROUND 1

        Zuniga was arrested for theft and charged by indictment. After the indictment was

dismissed, Zuniga filed an original petition for expunction and an amended petition. The

Department received notice of the hearing set for August 26, 2009, and filed an answer.

See id. at art. 55.02. Zuniga then filed a second amended petition, and the Department

received notice of the hearing set for September 30, 2009. The trial court then ordered the

hearing reset for October 8, 2009, but the Department did not receive notice and therefore

did not appear. The trial court ordered an expunction, and this appeal ensued.

                                               II. NO EVIDENCE

        In its first issue, the Department contends that Zuniga failed to meet condition (A)

of article 55.01(a)(2) of the Texas Code of Criminal Procedure because she produced no

evidence showing that the charges against her were dismissed for a reason indicating the

absence of probable cause to believe she had committed the offense. See id. art.

55.01(a)(2)(A). We agree.




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           The statem ent of facts set out in appellant's brief, if supported by record references, will be accepted
as true unless another party contradicts them . T EX . R. A PP . P. 38.1(g). Because Zuniga filed no brief, we will
take as true the Departm ent's fact statem ent that is supported by record references. Furtherm ore, because
this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite them here except
as necessary to advise the parties of the Court's decision and the basic reasons for it. See id. at rule 47.4.

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A. Standard of Review

       A trial court's order in an expunction proceeding is reviewed under an abuse of

discretion standard. Heine v. Tex. Dep't of Pub. Safety, 92 S.W.3d 642, 646 (Tex.

App.–Austin 2002, pet. denied). The trial court must strictly comply with the statutory

procedures for expunction, and it commits reversible error when it fails to do so. Ex parte

Stiles, 958 S.W.2d 414, 418 (Tex. App.–Waco 1997, pet. denied); see also Tex. Dep't of

Pub. Safety v. Olivares, No. 13-06-035-CV, 2007 Tex. App. LEXIS 5904, *3-*4 (Tex.

App.–Corpus Christi July 26, 2007, no pet.) (mem. op.).

B. Applicable Law

       Expunction is only available when all statutory conditions have been met. Williams,

76 S.W.3d at 650 (citing Tex. Dep't of Pub. Safety v. Butler, 941 S.W.2d 318, 321 (Tex.

App.–Corpus Christi 1997, no writ)). The petitioner has the burden of proving that all

statutory requirements have been satisfied in order to be entitled to expunction. Id. (citing

Butler, 941 S.W.2d at 321; Ex parte Scott, 818 S.W.2d 226, 227 (Tex. App.–Corpus Christi

1991, no writ)). To be entitled to expunction, a petitioner, such as Zuniga, who has neither

been acquitted of the offense in the petition, nor convicted and subsequently pardoned,

must show that the indictment presented against her has been 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 . . . ." TEX . CODE CRIM . PROC . ANN . art. 55.01(a)(2)(A)(ii).

C. Analysis

       Zuniga had not been acquitted of the offense identified in the petition, and she had

not been convicted and subsequently pardoned for that offense. Therefore, under the


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facts of this case, Zuniga was required to prove that she satisfied the conditions set out in

article 55.01(a)(2)(A)(ii) of code of criminal procedure.2 See TEX . CODE CRIM . PROC . ANN .

at art. 55.01(a)(2)(A)(ii). However, the record does not reflect that Zuniga presented any

evidence to satisfy these requirements. See id. Because there is no evidence to support

Zuniga's expunction, the trial court abused its discretion in ordering Zuniga's records

expunged. See Heine, 92 S.W.3d at 646. We sustain the Department's first issue.

         Having sustained the Department's first issue, we need not address its second issue

regarding proper notice of the hearing. See TEX . R. APP. P. 47.1.

                                                III. CONCLUSION

         We reverse the trial court's order and render judgment denying the expunction.

Pursuant to the Department's prayer for relief, we order any documents surrendered to the

trial court or to Zuniga returned to the submitting agencies. See Ex parte Elliot, 815

S.W.2d 251, 252 (Tex. 1991) (per curiam) (providing that reversal of the order of

expunction applies to all respondents, even if they did not participate in the appeal).


                                                                        NELDA V. RODRIGUEZ
                                                                        Justice

Delivered and filed the
24th day of June, 2010.




         2
         As the statute of lim itations for theft is five years and Zuniga filed her various petitions for expunction
less than two years after the date of the alleged com m ission of the offense, she was not eligible for relief
under article 55.01(a)(2)(A)(i) which provides for expunction when an indictm ent presented against the person
has been dism issed or quashed because the lim itations period expired before the date on which a petition for
expunction was filed. See T EX . C O D E C R IM . P R O C . A N N . arts. 12.01(4)(A), 55.01(a)(2)(A)(i) (Vernon Supp.
2009).

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