The purpose of article 55.01 is to enable persons who are wrongfully arrested to expunge their arrest record. San Antonio 1987, no writ) Texas Dep t of Pub. The petitioner bears the burden of proving compliance with all of the statutory requirements. 2004-2005) (emphasis added).Ī statutory expunction proceeding is civil rather than criminal in nature. To be entitled to expunction when criminal charges are dismissed, the petitioner must show that each of the following conditions exists: (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 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 (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 under Article 42.12 for any offense other than a Class C misdemeanor and (C) the person had not been convicted of a felony in the five years proceeding the date of the arrest. Thus, we turn to whether any error is apparent on the face of the record. Here, DPS filed a notice of restricted appeal within six months of the date of judgment, was a party to the lawsuit, and did not participate in the hearing that resulted in the order of expunction. Each one of these elements is mandatory and jurisdictional. To obtain reversal of an underlying judgment by restricted appeal, a party must satisfy the following elements: (1) a notice of restricted appeal must be filed within six months of the date of judgment (2) by a party to the lawsuit (3) who neither participated in the hearing that resulted in the judgment of which the party complains nor filed a timely post-judgment motion and (4) error must be apparent on the face of the record. At the Aughearing, the trial court granted Solis s petition and ordered his arrest and related indictment be expunged. DPS was not notified of the rescheduled date. On July 21, 2004, Solis s attorney and a Webb County assistant district attorney entered into a Rule 11 agreement resetting the hearing for August 30, 2004. DPS filed an affirmative defense and original answer on July 12, 2004. Solis then filed a petition for expunction and set the matter for a hearing before the trial court for July 22, 2004. The indictment was dismissed after Solis completed a pre-trial diversion program. Solis was arrested and indicted for the felony offense of accident involving injury/death. Because we find DPS s first issue to be dispositive on appeal, we do not address the remaining issues. We reverse the judgment of the trial court and render judgment denying Solis s expunction request. On appeal, DPS asserts: (1) Solis produced no evidence that the charges against him had been dismissed for a reason indicating a lack of probable cause to believe he committed the offense (2) Solis failed to produce evidence that he had not been convicted of a felony in the five years prior to his arrest and (3) the trial court abused its discretion in setting a hearing without proper notice to all of the respondents listed in the petition. The Texas Department of Public Safety (DPS) brings this restricted appeal from an order expunging the criminal record of Oscar Manuel Solis, Jr. From the 341st Judicial District Court, Webb County, Texas
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