
                           NO. 07-10-0215-CV

                        IN THE COURT OF APPEALS

                   FOR THE SEVENTH DISTRICT OF TEXAS

                              AT AMARILLO

                                PANEL C

                               MAY 5, 2011








                         EX PARTE AJMAN A. ADIL





             FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

           NO. 98,039-E; HONORABLE DOUGLAS R. WOODBURN, JUDGE





Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                           MEMORANDUM OPINION

      The State of Texas appeals an order by the trial court  expunging
the arrest records of Appellee, Ajman A. Adil.  In a single issue,  the
State asserts the trial court erred by entering an order of  expunction
because the  evidence  was  legally  and  factually  insufficient.   We
affirm.

                               Background

      On February 10, 2004,  Appellee  was  arrested  and  subsequently
indicted by a  Potter  County  Grand  Jury  for  felony  possession  of
marijuana in an amount of two thousand pounds or  less  but  more  than
fifty  pounds.[1]   On  September   1,   2004,   the   indictment   was
dismissed.[2]

      More than five years later, on October 22, 2009,  Appellee  filed
a verified  petition  for  expunction,  requesting  that  all  criminal
records and files  pertaining  to  her  February  10,  2004  arrest  be
expunged.  See Tex. Code Crim. Proc.  Ann.  articles  55.01  and  55.02
(West Supp. 2010).[3]  On November 5, 2009, the State filed its  answer
wherein the  State  generally  denied  the  allegations  in  Appellee's
petition, while specifically asserting that Appellee did not  meet  the
requirements of article 55.01(a)(2)(A)(ii),  to-wit:  dismissal  of  an
indictment due to mistake, false information, or other  similar  reason
indicating an absence of probable cause to believe  that  Appellee  had
committed the offense or because it  was  void.   In  response  to  the
State's averments, Appellee asserted the reason for the  dismissal  was
irrelevant to her petition because she  was  relying  solely  upon  the
provisions  of  article  55.01(a)(2)(A)(i),  to-wit:   lapse   of   the
applicable period of limitations.[4]

      On December 21, 2009, the trial court conducted  a  hearing.   At
that hearing, counsel for the State appeared  and  announced  that  the
"crux" of the dispute was whether the statute of  limitations  had  run
or not.  See Tex. Code Crim. Proc. Ann. art. 12.01 (West  Supp.  2010).
Specifically, the State asserted that the time  during  which  Appellee
had resided outside the state  should  not  be  included  in  computing
whether or not the applicable  limitations  period  had  expired.   See
Tex. Code Crim. Proc. Ann.  article  12.05  (West  2005).   The  State,
therefore, sought to establish that Appellee had  resided  outside  the
State of Texas during the period in question.

       Receiving  no  objection  from  Appellee's  counsel,  the  State
proceeded with the burden  of  persuasion  by  calling  Appellee  as  a
witness.  The State offered evidence  that,  since  Appellee's  arrest,
she had been a resident of Rhode Island and, with the exception of  the
three to four days she spent in Texas at the time of  her  arrest,  had
not returned to Texas.  Based on this evidence, the State  argued  that
the applicable period of limitation was tolled  by  the  provisions  of
article 12.05.[5]  No other evidence was presented and the trial  court
took the matter under advisement.  On May 19,  2010,  the  trial  court
granted Appellee's petition for expunction.   Neither  party  requested
findings of fact or conclusions of law and this appeal followed.


                               Expunction

      The right to expunction is neither a  constitutional  nor  common
law right but, rather, a statutory privilege.   Quertermous  v.  State,
52 S.W.3d 862, 864 (Tex.App.--Fort Worth 2001,  no  pet.).   Therefore,
in expunction proceedings, trial courts "have no inherent or  equitable
power to expunge criminal records"; Ex parte M. R. R., 223 S.W.3d  499,
500 (Tex.App.--Amarillo 2006, pet. denied), overruled in part on  other
grounds, State v. Beam, 226 S.W.3d 392, 394-95 (Tex. 2007), and,  if  a
trial  court  fails  to  comply  with  the  statutory  procedures   for
expunction, it commits  reversible  error.   State  v.  Echeverry,  267
S.W.3d  423,  425  (Tex.App.--Corpus  Christi   2008,   pet.   denied).
However, because the statute is remedial  in  nature,  those  statutory
provisions should be liberally  construed.   Ex  parte  E.  E.  H.  869
S.W.2d 496, 497 (Tex.App.--Houston [1st Dist.] 1993, writ denied).

      Expunction proceedings are authorized by Chapter 55 of the  Texas
Code of Criminal Procedure and are considered civil causes  of  action,
not criminal.   Ex  parte  Wilson,  224  S.W.3d  860,  861  (Tex.App.--
Texarkana  2007,  no  pet.);  Pitts  v.  State,  113  S.W.3d  393,  395
(Tex.App.--Houston  [1st  Dist.]  2003,  no   pet.).    Article   55.01
provides, in pertinent part, as follows:

(a)   A person who has been placed under a  custodial  or  noncustodial
      arrest for commission  of  either  a  felony  or  misdemeanor  is
      entitled to have all records and files  relating  to  the  arrest
      expunged if:

                               *   *   *

      (2)   each of the following conditions exist:

           (A)   An indictment or information charging the person with
                 the 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
                       presentment had been made  because  of  mistake,
                       false  information,  or  other  similar   reason
                       indicating an absence of probable cause  at  the
                       time of the  dismissal  to  believe  the  person
                       committed the offense or because it was void;

           (B)   the person has been released and the charge, if  any,
                 has not resulted in  a  final  conviction  and  is  no
                 longer  pending  and  there  was  no   court   ordered
                 community supervision . . . and

           (C)   the person has not been convicted of a felony in  the
                 five years preceding the date of the arrest.







      Even though the burden of proving compliance with each  statutory
condition rests with the petitioner, Taylor v. State, 266  S.W.3d  553,
556 (Tex.App.--Tyler 2008,  pet.  denied);  Heine  v.  Texas  Dep't  of
Public  Safety,  92  S.W.3d  642,  646  (Tex.App.--Austin  2002,   pet.
denied), the trial court may rule  on  the  verified  petition  without
conducting a formal hearing  and  without  the  consideration  of  live
testimony if it has at its disposal all the  information  it  needs  to
resolve the issues raised  by  the  petition.   Ex  parte  Wilson,  224
S.W.3d 860, 863 (Tex.App.--Texarkana 2007, no pet.).


                           Standard of Review

      A trial court's ruling on an  expunction  is  reviewed  under  an
abuse of discretion standard; Ingram v. Tex. Bd. of Pardons  &  Parole,
No. 01-08-00973-CV, 2011 Tex.App. LEXIS 663, at  *3  (Tex.App.--Houston
[1st Dist.] Jan. 27, 2011, no pet. h.) (mem. op.), and  a  trial  court
abuses its discretion when it acts without reference to  guiding  rules
and principles or  if  its  actions  are  arbitrary  and  unreasonable.
Downer v. Aquamarine Operators, Inc.,  701  S.W.2d  238,  241-42  (Tex.
1985).

                               Discussion

      At the outset, we note that the State's sole argument on  appeal,
that the trial court abused its discretion  by  entering  an  order  of
expunction when  the  evidence  presented  at  trial  was  legally  and
factually insufficient, does not conform to the argument  presented  to
the trial court.  On appeal, the State asserts Appellee  wholly  failed
to meet her burden of proof as to any  of  the  statutory  requirements
for an order of expunction because she failed  to  offer  any  evidence
whatsoever;  whereas,  before  the  trial  court,  the   State's   only
contention was that the provisions of  article  55.01(a)(2)(A)(i)  were
not met because Appellee  failed  to  present  evidence  that  she  was
present in the state for more than  three  years.   Therefore,  to  the
extent the State contends that Appellee failed to meet  her  burden  of
proof on any of the statutory requirements other  than  the  provisions
of article 55.01(a)(2)(A)(i), the State has waived those issues.  Moser
v. Davis, 79 S.W.3d 162, 169 (Tex.App.--Amarillo 2002,  no  pet.).   In
other  words,  by  appearing  before  the  trial  court  and  expressly
limiting the contested issue to Appellee's presence within  the  state,
the parties effectively stipulated to the other statutory conditions.

      Because the trial court  could  take  judicial  notice  that  the
period of limitations, to-wit: three years,  had  elapsed  between  the
dismissal of Appellee's indictment and the filing of her  petition  for
expunction, the trial court had at its disposal all the information  it
needed to resolve the issues raised by the  petition.   Based  on  that
information, the trial  court  could  have  reasonably  concluded  that
Appellee's  compliance  with  the  statutory  requirement  of   article
55.01(a)(2)(A)(i) was sufficiently established.

      Furthermore, to the extent the State’s issue can be construed  as
contending that the trial court erred by misapplying the provisions  of
article 12.05 to the undisputed facts, we note that not  only  did  the
State fail to provide this Court with a succinct,  clear  and  accurate
statement of that argument as required  by  Texas  Rules  of  Appellate
Procedure  38.1(h),  she  also  failed  to  provide  any  argument   or
authority that the provisions of article 12.05 applied to  the  unusual
facts of this case where accusations against Appellee had been  dropped
for more than the statutory  period  of  limitations.[6]   Accordingly,
the State also waived this argument.  Id.  Because we  cannot  say  the
trial court acted without reference to guiding rules and principles  or
that its actions were arbitrary  and  unreasonable,  the  State’s  sole
issue is overruled.


                               Conclusion

      The trial court's order of expunction is affirmed.



                                             Patrick A. Pirtle
                                                   Justice

Quinn, C.J., concurring.

-----------------------
[1]See Tex. Health & Safety Code Ann. § 481.121(b)(5) (West 2010).

[2]The State's Motion to Dismiss recites as grounds for  the  dismissal
that the "[o]fficer failed to show for suppression hearing."

[3]Throughout the remainder of this opinion, provisions  of  the  Texas
Code of Criminal Procedure will be cited as either  "article  ____"  or
"art. ____."

[4]The applicable  statute  of  limitations  for  an  offense  under  §
481.121(b)(5) of the Texas Health & Safety Code, the offense for  which
Appellee was arrested, is three years.  See Tex. Code Crim. Proc.  Ann.
art. 12.01(7) (West Supp. 2010).

[5]Article 12.05 provides, in pertinent part:

     a) The time during which the accused is absent from the state
        shall not be computed in the period of limitation.

(Emphasis added).

[6]Tolling provisions of article 12.05(a) only apply when  the  citizen
has been effectively accused of an offense.   Ex  parte  Matthews,  892
S.W.2d 208, 210-11 (Tex.App.--Houston [1st Dist.] 1995)(op. on  reh'g),
affd, 933 S.W.2d 134 (Tex.Crim.App. 1996), overruled in part  on  other
grounds by Proctor v. State, 967 S.W.2d 840, 844 (Tex.Crim.App. 1998).



