NO. 12-08-00040-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

THE STATE OF TEXAS, § APPEAL FROM THE 411TH

APPELLANT

V. § JUDICIAL DISTRICT COURT OF

MARSHALL SCOTT TAYLOR,

APPELLEE § TRINITY COUNTY, TEXAS

 

OPINION

The State of Texas appeals the trial court’s order of expunction following the dismissal of

charges of official oppression against Marshall Scott Taylor. In one issue, the State argues that

Taylor is not entitled to an expunction because he did not meet his burden of proof under Texas

Code of Criminal Procedure, article 55.01. We reverse and render.

BACKGROUND

Taylor was charged by indictment with official oppression alleged to have occurred on

March 26, 2005. Taylor was twice tried on this misdemeanor offense. Both trials ended in a

mistrial. Thereafter, the District Attorney of Trinity County, Texas filed a motion to dismiss the

prosecution against Taylor. The motion to dismiss was granted on July 31, 2007. 

On September 24, 2007, Taylor filed a petition for expunction. The trial court conducted a

hearing on Taylor’s petition on October 16, 2007. At the hearing, the State objected to Taylor’s

petition contending that the statute of limitations had not yet run. Ultimately, the trial court granted

the order of expunction. This appeal followed.
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EXPUNCTION AND LIMITATIONS

In his sole issue, the State argues that Taylor is not entitled to an expunction because he did

not meet his burden of proof under Texas Code of Criminal Procedure, article 55.01 since the term

of limitations had not run when Taylor filed his petition. Specifically, the State argues that the

period of limitations was tolled for the time that the indictment was pending.

Standard of Review

The person who is the subject of an expunction order or an agency protesting the expunction

may appeal the trial court’s decision in the same manner as in other civil cases. See TEX. CODE

CRIM. PROC. ANN. art. 55.02 § 3a (Vernon Supp. 2008). Thus, each law enforcement agency listed

in the petition who has records that are subject to expunction may appeal the trial court’s decision

in the same manner as in other civil cases. Ex parte Stiles, 958 S.W.2d 414, 417 (Tex. App.–Waco

1997, pet. denied). 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 muststrictly complywith the statutory procedures for expunction,

and it commits reversible error when it fails to do so. Ex parte Stiles, 958 S.W.2d at 418.

In conducting a legal sufficiency review, we “view the evidence in the light favorable to the

verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence

unless reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We

will sustain a no evidence challenge when the record shows that (1) there is a complete absence of

a vital fact, (2) the court is barred from considering the only evidence offered to prove a vital fact,

(3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence

conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert W. Calvert, “No

Evidence” and “Insufficient Evidence” Points of Error, 38 TEX.L.REV. 361, 362-63 (1960)); Tex.

Dep’t of Pub. Safety v. Williams, 76 S.W.3d 647, 649 (Tex. App.–Corpus Christi 2002, no pet.).

Expunction

A person is entitled to have all records of an arrest expunged only when all statutory

conditions have been met. Harris County Dist. Attorney’s Office v. Pennington, 882 S.W.2d 529,

530 (Tex. App.–Houston [1st Dist.] 1994, no writ). The nature of the expunction statute is remedial,

and it should be construed liberally. Id. The purpose of Article 55.01 is to allow those persons who
Although the indictment is not part of the clerk’s record, neither party disputes that Taylor was indicted 1

for official oppression on April 20, 2005.

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are wrongfully arrested to expunge their records. Id. The petitioner in an expunction proceeding

has the burden of proving compliance with the statutory conditions. Wilkomirski v. Texas Criminal

Info. Ctr., 845 S.W.2d 424, 426 (Tex. App.–Houston [1st Dist.] 1992, no writ). Article 55.01

requires strict compliance with conditions imposed by the statute; courts have no equitable power

to expunge criminal records. Collin County Criminal Dist. Attorney’s Office v. Dobson, 167

S.W.3d 625, 626 (Tex. App.–Dallas 2007, no pet.).

In order to satisfy his burden of proof, Taylor was required to demonstrate, among other

things, that the limitations period for the offense with which he was charged expired before the date

on which his petition for expunction was filed. See TEX.CODE CRIM. PROC.ANN. 55.01(a)(2)(A)(i)

(Vernon 2006). 

Taylor was charged with misdemeanor official oppression. See TEX. PENAL CODE ANN.

§ 39.03 (Vernon 2003). The period of limitations for a misdemeanor is two years from the date of

the commission of the offense. See TEX. CODE CRIM. PROC. ANN. art. 12.02 (Vernon 2005).

However, in determining the period of limitations, the time during the pendency of an indictment,

information, or complaint shall not be computed. See TEX. CODE CRIM. PROC. ANN. art 12.05(b)

(Vernon 2005). The term “during the pendency,” as used in Article 12.05(b), means that period of

time beginning with the day the indictment, information, or complaint is filed in a court of competent

jurisdiction, and ending with the day such accusation is, by an order of a trial court having

jurisdiction thereof, determined to be invalid for any reason. See TEX.CODE CRIM. PROC. ANN. art

12.05(c) (Vernon 2005).

In the case at hand, the record reflects that the offense in question is alleged to have been

committed on March 26, 2005. In his brief, Taylor states that he was indicted on April 20, 2005.1

The prosecution was dismissed on July 31, 2007. As such, the period of limitations for the offense

allegedly committed by Taylor began on March 27, 2005. See TEX. CODE CRIM. PROC. ANN.

art. 12.04 (Vernon 2005). The period of limitations was tolled from April 20, 2005 until July 31,

2007. See id.; Al Haj v. State, 916 S.W.2d 660, 662 n.3 (Tex. App.–Houston [14th Dist.] 1996), pet.

dism’d, 932 S.W.2d 519 (Tex. Crim. App. 1996) (The period of time beginning with the day the
See, e.g., TEX. CODE CRIM. PROC. ANN. art. 12.05(a) (Vernon 2005). 2

Our sustaining in part of the State’s sole issue is dispositive of this matter. Thus, we do not reach the 3

State’s other contentions relating to Texas Code of Criminal Procedure, article 12.05(a).

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indictment is filed in a court of competent jurisdiction, and ending with the day such accusation is,

by an order of a trial court having jurisdiction thereof, determined to be invalid for any reason, shall

not be computed in the period of limitation.). As such, assuming that the statute was not tolled for

any other reason, the period of limitations in question does not expire until on or about July 7, 2009. 2

Therefore, since Taylor filed his petition for expunction before the expiration of the period of

limitations for the offense with which he was charged, he failed to satisfy his burden of proof. See

TEX. CODE CRIM. PROC. ANN. 55.01(a)(2)(A)(i). 

Citing Beam v. State, 226 S.W.3d 392 (Tex. 2007), Taylor argues that the current

jurisprudence sets forth that the limitations period with regard to the expunction of misdemeanors

under Article 55.01 is a simple two year period with no account taken for tolling. However, in

Beam, the court was not presented with the issue of whether the limitations period had been tolled.

Id. at 395. In fact, the court specifically noted that no indictment or information was presented

against Beam. Id. Taylor further cites Dobson, 167 S.W.3d at 626 (no presentment of indictment

or information), Dallas County Dist. Atty’s Office v. Hoogerwerf, No. 02-05-034-CV, 2005 WL

3436557, at *1 (Tex. App.–Fort Worth Dec. 15, 2005, no pet.) (mem. op., not designated for

publication) (no presentment of indictment), and Ex parte McLendon, No. 14-05-00651-CV, 2006

WL 221724, at *1 (Tex. App.–Houston [14th Dist.] Jan. 31, 2006, pet. denied) (petition filed within

five year period of limitations; no reference made to presentation of charging instrument or tolling),

none of which addressed the issue before us.

We conclude that since Taylor filed his petition for expunction prior to the expiration of the

period of limitations, he failed to show strict compliance with Article 55.01. Thus, we hold that the

trial court erred in granting Taylor’s petition for expunction. To the extent that the State’s sole issue

related to Taylor’s failure to comply with Article 55.01(a)(2)(A)(i), it is sustained. 

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DISPOSITION

Having sustained the State’s sole issue in part, we reverse the trial court’s order of
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expunction and render judgment denying Taylor’s petition for expunction.

 SAM GRIFFITH 

 Justice

Opinion delivered September 3, 2008.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)