dissenting.
Finding myself in disagreement with the majority members of the panel, I respectfully file my dissent. I would affirm the judgment of the trial court.
In 1986 the appellee was indicted in the 180th District Court of Harris County, Texas for possession of a controlled substance, namely lysergic acid diethylamide (LSD). The indictment followed appellee’s search and arrest at Westbury High School by Leo Brimmer, a security officer at the school, who found seventeen “squares” of LSD in a small jewelry box he took from appellee. Appellee filed a motion to suppress evidence which was seized from his person, specifically the suspected LSD. Before that motion was considered by the trial court, an assistant district attorney in the Harris County District Attorney’s Office filed a motion in the 180th District Court, requesting the trial court to dismiss the indictment. The motion set forth two grounds. First, the prosecutor checked a box indicating “Insufficient Evidence.” He also checked a box for “Other” and made the following notation:
There was no probable cause for the search and arrest of the defendant. A Houston Independent School District Security Officer approached the Defendant because the officer thought a drug deal was in progress. The defendant’s actions were as consistent with legal activities as they were with illegal activities. The only probable cause is the mere suspicion of the officer. There are no legal justifications for the search.
The trial court signed the order dismissing the indictment on June 15, 1987.
On January 8, 1992 the appellee filed a petition in the 165th District Court to have his arrest expunged from the records of law *800enforcement entities, including the Harris County District Attorney’s Office, the Harris County Sheriffs Department, the City of Houston, the Texas Department of Public Safety, and the Federal Bureau of Investigation’s National Crime Information Center. All of those defendants were duly served, and answers were filed.
At a hearing on June 1, 1992 before the judge of the 165th District Court, appellant and other trial court defendants maintained that the appellee was not entitled to expunction of the records. After hearing the arguments and receiving evidence, the trial court held that the records should be expunged. An order was entered on June 16, 1992.
The Harris County District Attorney’s Office, thereafter gave notice of appeal. Appellant requested findings of fact and conclusions of law. Appellant and the appellee both submitted proposed findings of fact and conclusions of law. The trial court signed the findings of fact and conclusions of law prepared by appellant.
Appellant presents two points of error in this cause, one a “no evidence” argument and the other an “insufficient evidence” argument, each claiming the trial court lacked an adequate evidentiary basis for granting the appellee’s petition for an expunction.
The issue in this cause centers on the statute which allows, in limited circumstances, the expunction of records of a citizen’s arrest. Tex.Code Crim.PROC.Ann. art. 55.01 authorizes expunction as a matter of right if three conditions exist. Even though the governing law is part of the Code of Criminal Procedure, the relief of expunction is obtained by filing a civil lawsuit. That is what appellee in this cause, M.G.G., did on January 8,1992. The condition at issue here is the second alternative in subsection (1), which states that a person may have his records expunged:
... if an indictment or information charging him with commission of a felony was presented, it has been dismissed and the court finds that it was dismissed 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; ...
At the hearing the applicability of the second and third paragraphs of Article 55.01 was resolved by agreement of the parties. The basic clash came over whether, at the time of the dismissal, there was probable cause to believe the appellee committed the offense.
Appellant reasons that, even if suppression of evidence was inevitable, it still was true that the appellee in fact was in possession of LSD. The appellant relies heavily on Ex parte Kilberg, 802 S.W.2d 17 (Tex.App.—El Paso 1990, no writ), which utilized such reasoning when it stated “A showing that the evidence against [Kilberg] was excluded based on procedural grounds is not the same as showing that the fact of his possession was incorrect.” Id. at 19. Appellee submits that such a view, though plausible, distorts the intended purpose of the expunction statute, which is “to enable persons who are wrongfully arrested to expunge their arrest records.” State v. Knight, 813 S.W.2d 210, 212 (Tex.App.—Houston [14th Dist.] 1992, no writ); see also Harris County District Attorney’s Office v. J.T.S., 807 S.W.2d 572, 574 (Tex.1991) (stating “the Legislature intended article 55.01 to permit the expunction of records of wrongful arrests”).
Article 55.01 is not couched in terms of “guilt in fact,” but rather in terms of “probable cause,” a concept which always is associated with evidence. Probable cause is a reason to believe that something is true, based on credible facts. A grand jury’s only factual basis for finding probable cause is the evidence which is presented to them. The trial court rationally could have found, under the circumstances of this cause, that the appellee was wrongfully arrested, the search and arrest situation was misrepresented to the prosecutors and grand jury, and there would have been no indictment if the prosecutors and grand jurors had been aware of the same information relating to probable cause that was available to the prosecutor who dismissed indictment.
I would affirm the trial court’s judgment.