                            NUMBER 13-08-00521-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


TEXAS DEPARTMENT OF PUBLIC SAFETY,                                           Appellant,

                                            v.

ALFONSO MATA, III,                                                            Appellee.


  On appeal from the 197th District Court of Cameron County, Texas.


                        MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
               Memorandum Opinion by Justice Yañez

      By one issue, appellant, the Texas Department of Public Safety ("the Department"),

appeals from the trial court’s order granting a petition for expunction filed by appellee,

Alfonso Mata, III. We reverse and render.

                                    I. BACKGROUND

      According to appellee's petition for expunction, on November 10, 2007, he was
arrested for misdemeanor "Assault Causing Bodily Injuries [sic] Family Violence."1 On

November 28, 2007, the alleged victim recanted her allegations in an affidavit stating that

she lied to police when she stated that appellee had caused her injuries.

        On May 28, 2008, appellee filed a petition for expunction of all records and files

relating to his arrest pursuant to article 55.01(a)(2) of the Texas Code of Criminal

Procedure.2 In his petition, appellee alleged that he was entitled to an expunction because

"no indictment or information was presented against [him] for said offense arising out of

the transaction for which [he] was arrested." The Department filed an answer arguing that

appellee was not entitled to an expunction because the statute of limitations for the

misdemeanor offense had not expired before the petition had been filed. After conducting

a hearing, the trial court granted appellee's petition for expunction. This appeal ensued.

                               II. APPLICABLE LAW AND STANDARD OF REVIEW

        To be entitled to an expunction, the petitioner has the burden of proving that all

statutory requirements of article 55.01 of the code of criminal procedure have been

satisfied.3 Article 55.01, in pertinent part, requires that a person seeking expunction must

show:

        (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:


        1
          A person com m its an assault if he intentionally, knowingly, or recklessly causes bodily injury to
another; the offense is a Class A m isdem eanor. T EX . P EN AL C OD E A N N . § 22.01 (a)(1), (b)(1) (Vernon Supp.
2008); T EX . F AM . C OD E A N N . §§ 71.004 (3); 71.0021(b) (Vernon Supp. 2008).

        2
            See T EX . C OD E C R IM . P R O C . A N N . art. 55.01(a)(2) (Vernon 2006).

        3
            See id. art. 55.01.

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                    (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.4

In construing article 55.01, the supreme court concluded:

         Paragraph (2)(A) first requires that an indictment or information charging the
         person with committing a felony must not have been presented, or if
         presented, it must have been dismissed or quashed. This condition will
         always be satisfied in a misdemeanor case. But (2)(A) contains an additional
         requirement: the limitations period must have expired before the petition was
         filed. The statute uses the word "and" to connect paragraph (2)(A) and
         (2)(A)(i), meaning that both requirements must be met before a party is
         entitled to expunction.5

         Courts have no inherent or equitable power to expunge criminal records.6 The trial

court must strictly comply with the statutory requirements for expunction.7 A trial court’s

ruling on an expunction is reviewed under an abuse of discretion standard.8 A trial court

abuses its discretion when it acts without reference to guiding rules and principles.9

                                                III. DISCUSSION

         At the expunction hearing, the Department argued that the statute of limitations had

not expired, and appellee argued that he was entitled to expunction if "the case [had] been

         4
             Id. art. 55.01(a)(2)(A).

         5
             State v. Beam, 226 S.W .3d 392, 395 (Tex. 2007) (internal citations om itted).

         6
             Tex. Dep't of Pub. Safety v. W oods, 68 S.W .3d 179, 182 (Tex. App.–Houston [1st Dist.] 2002, no
pet.).

         7
             State v. Echeverry, 267 S.W .3d 423, 424 (Tex. App.–Corpus Christi 2008, pet. denied).

         8
             Id.

         9
             Id.

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dismissed for lack of probable cause." Apparently, appellee was referring to subsection

(ii) of 55.01.10 After admitting the complainant's affidavit into evidence, the trial court

granted appellee's expunction.

        In order to grant an expunction under subsection (ii), the trial court is required to find

that the indictment or information charging the person with commission of a felony was

dismissed or quashed because the presentment had been made because of mistake, false

information, or other similar reason indicating a lack of probable cause.11 However, in this

case, presentment of an information or indictment had not been made; therefore,

expunction may not have been based on subsection (ii).12

        Because appellee was not entitled to an expunction pursuant to subsection (ii), he

was required under subsection (i) to show that the statute of limitations had expired before

the date of the petition for expunction.13 The statute of limitations for a misdemeanor is two

years.14 The date of appellee's arrest was November 10, 2007, and he filed his petition on

May 28, 2008. The limitations period had not expired before the date on which appellee


        10
             See T EX . C OD E C R IM . P R O C . A N N . art. 55.01(a)(2)(A)(ii).

        11
             Id.

        12
           See Collin County Criminal Dist. Attorney's Office v. Dobson, 167 S.W .3d 625, 627 (Tex.
App.–Dallas 2005, no pet.); Bhat v. State, 127 S.W .3d 435, 436 (Tex. App.–Dallas 2004, no pet.) (concluding
that because there had been no presentation of an indictm ent or inform ation, subsection (ii) was inapplicable
and that petitioner was required to prove that the statute of lim itations for the offense for which he was
arrested had expired before the date he filed his petition); Heine v. Tex. Dep't of Pub. Safety, 92 S.W .3d 643,
649 n.4 (Tex. App.–Austin 2002, pet. denied) ("In cases where an inform ation or indictm ent has been
presented, the petitioner m ust prove that the indictm ent/inform ation was dism issed or quashed because the
presentm ent was m ade due to m istake, false inform ation, or other sim ilar reason indicating absence of
probable cause.").

        13
            See Beam, 226 S.W .3d at 395; Heine, 92 S.W .3d at 649 n.4 ("[I]n cases where an inform ation or
indictm ent was not presented, the petitioner m ust now prove that the lim itations period for the offense expired
before the filing of the petition for expunction.").

        14
         T    EX .   C OD E C R IM . P R O C . A N N . art. 12.04 (Vernon 2005).

                                                                 4
filed his petition. Therefore, because appellee has not proven that all the statutory

requirements have been satisfied, he is not entitled to expunction of records related to his

arrest.15 We conclude that the trial court abused its discretion by granting appellee's

expunction, and sustain the Department's sole issue.

                                            IV. CONCLUSION

        Accordingly, we reverse the judgment of the trial court and render judgment denying

the expunction. Pursuant to the Department's prayer for relief, we order all documents that

were turned over to the trial court or to appellee to be returned to the submitting agencies.16




                                                          ______________________________
                                                          LINDA REYNA YAÑEZ,
                                                          Justice



Memorandum Opinion delivered and
filed this the 20th day of August, 2009.




        15
             See id. art. 55.01.

        16
          See Ex parte Elliot, 815 S.W .2d 251, 252 (Tex. 1991) (per curiam ) (providing that reversal of the
expunction applies to all respondents, even if they did not participate in the appeal).

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