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Click here for the full text of this decision FACTS:On May 19, 2005, A.R. filed a verified petition to expunge all records and files pertaining to and in connection with his arrest and charge on Feb. 17, 2005 for the misdemeanor offense of violation of the Texas Open Meetings Act. Appellant filed a general denial on Aug. 1, 2005. The trial court conducted a hearing on the petition on Aug. 5, 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. That motion recites that the state sought dismissal of the indictment in the case because a witness had changed his testimony concerning his 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 9, 2005. At the hearing, A.R.’s counsel asserted that A.R.’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 A.R. had committed the offense. Besides the record from the underlying case of which the trial court had taken judicial notice, A.R.’s counsel offered no other evidence at the hearing, but rather informed the court that A.R. would rely on his petition to satisfy the other elements to show entitlement to expunction. After the hearing, the trial court granted the expunction order on the same date. On Aug. 15, 2005, the state requested findings of fact and conclusions of law. The trial court filed its findings of facts and conclusions of law on Aug. 31, 2005, in which it found that each of the following conditions existed: “(A) An indictment or information charging [A.R.] with commission of a felony has not been presented; (B) [A.R] has been released and the charge did not result in a final conviction and is no longer pending and there was no court ordered community supervision; and (C) [A.R.] has not been convicted of a felony in the five years preceding the date of the arrest herein.” The trial court concluded that A.R. was entitled to expunction pursuant to Texas Code of Criminal Procedure Article 55.01(a)(2)(A), (B) and (C). According to the record, after the trial court entered its findings of fact and conclusions of law, A.R. filed a sworn affidavit, attesting that he had never been convicted of any crime in Texas or any other state and had not been convicted of a felony in the five years preceding the filing of the underlying cause. On Sept. 2, 2005, A.R. filed a motion requesting that the trial court admit into evidence his affidavit attesting to his lack of a criminal record. No ruling on A.R.’s motion to reopen evidence appears in the record. HOLDING:The court reverses the trial court’s order and renders judgment denying A.R.’s petition for expunction. A.R. introduced no evidence at the hearing to show that he had not been convicted of a felony in the five years preceding the date of arrest. Rather, he relied on his verified petition, in which he stated “he has never ever been convicted of a felony in the five (5) years preceding the date of the filing of this complaint, which was on or about June 5, 2003.” Appellant, however, filed a general denial pursuant to Texas Rule of Civil Procedure 92. Consequently, Appellant’s general denial put into issue the allegations in A.R.’s petition and A.R. was required to prove he met the statutory conditions required under Article 55.01(a)(2). A.R. asserts that the affidavit he filed after the expunction order was granted, established that he had never been convicted of a felony. A.R. claims that his affidavit was evidence in support of Article 55.01(a)(2)(C) because it was filed on the same day that the trial court entered its findings of fact and conclusions of law, which were entered while the court still possessed plenary power, and that on appeal, the court presumes that the trial court reopened the evidence to allow the admission of his affidavit. During oral argument, A.R.’s counsel explained that the affidavit and proposed findings and conclusions were mailed together on Friday August 26 and were to be signed on August 29. Inexplicably, the findings and conclusions were file-stamped before the affidavit, even though the documents were filed the same day on Aug. 31. However, the record indicates that the trial court entered its findings of fact and conclusions of law before A.R. filed his affidavit and two days before A.R. filed his motion to reopen the evidence. There is nothing in the record that indicates the trial court considered A.R.’s motion to admit his affidavit into evidence and granted the same. A.R. cites no authority that supports his contention that on appeal, this Court must presume the trial court reopened the evidence after granting the expunction order and admitted A.R.’s affidavit concerning the lack of a criminal record. Because the affidavit was not admitted into evidence, the court cannot consider it on appeal. The court concludes there is no evidence to support the trial court’s finding that A.R. had not been convicted of a felony in the five years preceding the date of arrest. Thus, the evidence before the trial court was legally insufficient to support the expungement order based on A.R.’s failure to prove that he satisfied the statutory requirements pursuant to Article 55.01(a)(2)(C). OPINION:David Wellington Chew, J.; McClure, J., Chew and Guaderrama, J.J.

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