TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-06-00518-CV

Texas Department of Public Safety, Appellant

v.

Sam Sorrell, Appellee

FROM THE DISTRICT COURT OF MCCULLOCH COUNTY, 198TH JUDICIAL DISTRICT

NO. 2005069, HONORABLE V. MURRAY JORDAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

The Texas Department of Public Safety appeals the district court’s order granting

expunction of records concerning Sam Sorrell’s arrest for burglary of a building. See Tex. Penal

Code Ann. § 30.02 (West 2003). The DPS contends that Sorrell failed to produce evidence that he

had not been convicted of a felony in the five years previous to his arrest. We sustain the DPS’s

point on appeal, reverse the judgment of the district court, and render judgment denying expunction.

On April 26, 2005, Sorrell filed a petition for expunction of his criminal record

arising out of his March 18, 1985 arrest for burglary. The DPS answered with an affirmative

defense, special exceptions, and a general denial. A hearing was held on June 13, 2005, before

Judge Karl Prohl. The DPS appeared at this hearing, but the hearing was recessed to allow

Judge Murray Jordan to hear the matter because he had originally presided over the deferred

adjudication and plea agreement for the 1985 charge. On June 16, 2006, a second hearing on the
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expunction was held before Judge Jordan. However, neither the DPS nor any other respondent

appeared. The district court entered an order expunging all files and records concerning Sorrell’s

arrest from each named respondent.

A person is entitled to an expunction under article 55.01(a)(2) of the code of criminal

procedure only when all statutory requirements have been satisfied. See Heine v. Texas Dep’t

of Pub. Safety, 92 S.W.3d 642, 646 (Tex. App.—Austin 2002, pet. denied). Subsection (C) of

article 55.01(a)(2) requires that Sorrell not have been “convicted of a felony in the five years

preceding the date of the arrest.” Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(C) (West 2006).

Sorrell carries the burden of proving compliance with this statutory requirement. See Heine,

92 S.W.3d at 646. The DPS contends that Sorrell failed to produce any evidence that he had not

been convicted of a felony in the five years previous to his arrest. If more than a scintilla of evidence

exists to support the trial court’s finding of compliance with article 55.01(a)(2)(C), the DPS’s noevidence challenge fails. See Tarrant Reg’l Water Dist. v. Gragg, 151 S.W.3d 546, 552 (Tex. 2004).

Sorrell alleged in his petition that he had not been convicted of a felony in the

five years preceding the date of his arrest. However, the DPS answered with a general denial. When

a party files a general denial in the trial court, the plaintiff is put to proof on all issues alleged in his

petition. See Tex. R. Civ. P. 92; Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001). Accordingly,

Sorrell was required to prove compliance with subsection (C) of article 55.01(a)(2). See In re

Expunction of A.R., 225 S.W.3d 643, 646 (Tex. App.—El Paso 2006, no pet.). Sorrell introduced

no evidence on this issue at the June 16, 2006 hearing. Therefore, the record discloses a complete

absence of evidence of a vital fact, and Sorrell has not met his burden of proving compliance with
The DPS asserts two additional points on appeal: (1) Sorrell failed to prove that there was

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no court ordered probation, in accordance with subsection (B) of article 55.01(a)(2); and (2) the court

failed to give reasonable notice of the June 16, 2006 expunction hearing. Because the absence of

evidence on subsection (C) of article 55.01(a)(2) is dispositive, we need not reach the remaining

points on appeal.

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article 55.01(a)(2). See id. at 646-47 (holding that petition for expunction should be denied where

petitioner alleged compliance with article 55.01(a)(2)(C) in his petition, State filed a general denial,

and petitioner failed to introduce evidence demonstrating compliance with article 55.01(a)(2)(C));

Ex parte Jackson, 132 S.W.3d 713, 716 (Tex. App.—Dallas 2004, no pet.); Texas Dep’t of Pub.

Safety v. Claudio, 133 S.W.3d 630, 632-33 (Tex. App.—Corpus Christi 2002, no pet.); State

v. Herron, 53 S.W.3d 843, 847-48 (Tex. App.—Fort Worth 2001, no pet.); Ex parte Myers,

24 S.W.3d 477, 481 (Tex. App.—Texarkana 2000, no pet.).

The district court erred in granting Sorrell’s petition for expunction on this record.

We reverse the district court’s order granting expunction and render judgment denying Sorrell’s

petition for expunction.1

__________________________________________

G. Alan Waldrop, Justice

Before Chief Justice Law, Justices Waldrop and Henson

Reversed and Rendered

Filed: December 19, 2008