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Click here for the full text of this decision FACTS:On May 11, 2005, K.E.L. filed a verified petition to expunge all records and files pertaining to and in connection with her arrest and charge on Feb. 17, 2005 for the misdemeanor offense of violation of the Texas Open Meeting Act. Appellant filed a general denial on July 15, 2005. The trial court conducted a hearing on the petition on Aug. 19, 2005. At the hearing, the trial court took judicial notice of the proceedings in the underlying case, including the order granting the state’s motion to dismiss the indictment. The motion recites that the state sought dismissal of the indictment in the case because a witness had changed his testimony concerning the receipt of an e-mail in contradiction to his testimony before the grand jury which returned the indictment. The underlying cause was dismissed on May 3, 2005. At the hearing, K.E.L.’s counsel asserted that K.E.L.’s request for expunction was based on the ground that the reason for the dismissal included absence of probable cause at the time of the dismissal to believe K.E.L. had committed the offense. Besides the record from the underlying case, K.E.L. testified that she had never been convicted of a felony. After the hearing, the trial court granted the expunction order. The state requested finding of facts and conclusions of law. The trial court filed its finding of facts and conclusions of law on Sept. 8, 2005, in which it found the following conditions existed: “(1) There was no probable cause to support the indictment in Cause No. 3744 at the time it was presented; (2) There was no probable cause to support the indictment in Cause No. 3744 at the time it was dismissed; (3) An indictment or information charging [K.E.L.] with commission of a felony has not been presented; (4) [K.E.L.] has been released and the charge did not result in a final conviction and there was no court ordered community supervision; (5) [K.E.L.] has not been convicted of a felony in the five years preceding the date of arrest herein; (6) [K.E.L.] is entitled to expunction pursuant to Art. 55.01, Code of Criminal Procedure, and pursuant to Art. 55.01 Code of Criminal Procedure, Sec. (a)(2), (A.B.C.).” HOLDING:Affirmed. The appellant, the state, argues that the evidence in the record is legally insufficient to show strict compliance with Article 55.01(a)(2) because K.E.L. presented no evidence that the limitations period expired before the date the expunction petition was filed. Further, the state asserts that K.E.L. presented no evidence that she had not been convicted of a felony in the five years preceding the date of arrest. The statute clearly provides that in cases where the underlying offense is a felony, a petitioner must satisfy either Subsection (2)(A)(i) or Subsection (2)(A)(ii). However, by its plain reading, Subsection (2)(A) does not apply where the underlying offense is a misdemeanor. Although the court recognizes that the Dallas Court of Appeals in State v. Bhat, 127 S.W.3d 435 (Tex.App. – Dallas 2004, no pet.) applied Subsection (2)(A) where the underlying charge was a misdemeanor, the court declines to follow that interpretation of the statute. Because the underlying criminal charge in this case was a misdemeanor, the court concludes that K.E.L. was not required to show either requirement contained in Subsection (2)(A). With regard to K.E.L.’s evidence to satisfy Subsection (2)(C), the record shows that K.E.L.’s counsel admitted the entire file of K.E.L.’s criminal case into evidence. K.E.L.’s indictment was before the trial court. In her testimony, K.E.L. unequivocally stated that she had never been arrested or convicted of a felony. Her statement clearly included the five years preceding the date of the arrest for the underlying misdemeanor charge. The court concludes there was legally sufficient evidence to support the trial court’s finding that K.E.L. had not been convicted of a felony in the five years preceding the date of arrest. OPINION:David Wellington Chew, J.; McClure, Chew, and Guaderrama, J.J.

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