DocketNumber： 03-98-00580-CV
Filed Date： 10/14/1999
Status： Precedential
Modified Date： 9/5/2015
Retzlaff filed a verified petition requesting that the district court expunge the records and files in six causes against him numbered: (1) 2C97-1670, evading arrest using vehicle; (2) 2C97-1671, display of harmful material to a minor; (3) 2C97-1673, display of harmful material to a minor; (4) 2C97-1674, violation of a protective order; (5) CC97-39714C, theft by check in an amount greater than $20 and less than $200; and (6) 2C95-5198, a class C criminal attempt of harassment. The district court denied his request.
In his third issue, Retzlaff contends that the district court abused its discretion in denying his request for expunction. The State concedes that Retzlaff was entitled to have the records related to causes one through five expunged. Accordingly, we will sustain the portion of Retzlaff's third issue related to the first five causes, reverse the portion of the district court's judgment related to cause numbers 2C97-1670, 2C97-1671, 2C97-1673, 2C97-1674, and CC97-39714C, and remand that portion of the cause to the district court for entry of an order expunging the files and records related to these causes.
Cause Number 2C95-5198
What remains at issue is whether the trial court erred in denying Retzlaff's request to expunge the records in cause number 2C95-5198, the class C criminal attempt of harassment. See Tex. Penal Code Ann. §§ 15.01, 42.07(a) (West 1994 & Supp. 1999). We conclude that it did not.
The right to expunction is a statutory privilege. State v. Autumn Hills Center, Inc., 705 S.W.2d 181, 182 (Tex. App.--Houston [14th Dist.] 1985, no writ). In a statutory cause of action, all provisions are mandatory and exclusive, and a person is entitled to expunction only when all of the conditions have been met. Harris County Dist. Attorney's Office v. Burns, 825 S.W.2d 198, 202 (Tex. App.--Houston [14th Dist.] 1992, writ denied). Texas Code of Criminal Procedure article 55.01(a) provides two sets of conditions for mandatory expunction and article 55.01(b) provides conditions for discretionary expunction. Retzlaff contends that he is entitled to mandatory expunction based on the provisions of article 55.01(a)(2). The State responds that Retzlaff is not entitled to expunction because he cannot meet the condition that "there was no court ordered [community supervision] under Article 42.12." See Tex. Code Crim. Proc. Ann. art. 55.01(a)(2)(B) (West Supp. 1999).
In 1996, in the Bell County Court At Law, Retzlaff pleaded nolo contendere to the misdemeanor offense of criminal attempt of harassment. The county court placed Retzlaff on deferred adjudication community supervision for six months and ordered him to pay a $500 fine and court costs. The court probated $400 of the fine and attached the conditions that there would be no early release from community supervision and that Retzlaff was not to have any contact with the victim.
Retzlaff contends that because criminal attempt is a class C misdemeanor offense, punishable by a fine only, the county court at law assessed deferred adjudication community supervision under Texas Code of Criminal Procedure article 45.54 or 42.111 rather than article 42.12, the more general community supervision provision. Retzlaff contends that he is, therefore, entitled to expunction of all related files and records. We disagree.
Article 45.54 applies only to convictions in justice courts. See Act of May 18, 1987, 70th Leg., R.S., ch. 226, § 2, 1987 Tex. Gen. Laws 1523. Article 42.111 applies only when a defendant convicted in justice court of a misdemeanor, punishable by a fine only, appeals the conviction to a county court. See Tex. Code Crim. Proc. Ann. art. 42.111 (West Supp. 1999) (emphasis added). The 1996 order placing Retzlaff under community supervision was a county court at law order. Retzlaff was not convicted in justice court nor did he appeal a justice court decision de novo to the county court at law.
Article 42.12 defines "community supervision" as "the placement of a defendant by a court under a continuum of programs and sanctions, with conditions imposed by the court for a specified period during which criminal proceedings are deferred without an adjudication of guilt." See id. at art. 42.12 § 2(2)(A) (West Supp. 1999). Upon receiving a plea of nolo contendere to a misdemeanor offense, a judge may defer further proceedings without entering an adjudication of guilt and place the defendant on community supervision. See id. at art. 42.12 § 5(a) (West Supp. 1999). For purposes of the expunction statute, misdemeanor deferred adjudication community supervision constitutes "court ordered supervision" under article 42.12. See Harris County Dist. Attorney's Office v. D.W.B., 860 S.W.2d 719, 721 (Tex. App.--Houston [1st Dist.] 1993, no writ).
We hold that neither article 42.111 or 45.54 applies because Retzlaff was not convicted in justice court and did not appeal a justice court conviction de novo to a county court with a resulting order of community supervision. The district court therefore did not err in denying Retzlaff's request for expunction of the records related to the criminal attempt of harassment because he received court ordered community supervision under article 42.12. We overrule Retzlaff's third issue as it relates to cause number 2C95-5198.
Finding the Expunction Petition Frivolous
In his fourth issue, Retzlaff contends that the trial court erred by declaring his petition frivolous. We agree. The State conceded that Retzlaff was entitled to have the records and files of five of the six causes expunged. Although we have determined that Retzlaff is not entitled to expunction of the records and files related to the sixth cause, his petition was not based upon an indisputably meritless legal theory. The petition was not frivolous. We sustain Retzlaff's fourth issue. We reverse the portion of the district court's judgment declaring that Retzlaff's expunction petition was frivolous and render judgment that it was not.
Because of our disposition of the third and fourth issues, we need not address the other issues raised on appeal. We reverse the portion of the district court's judgment denying the expunction of records and files related to 2C97-1670, 2C97-1671, 2C97-1673, 2C97-1674, and CC97-39714C, and remand the related portion of the cause to the district court for entry of an order expunging the files and records related to those five causes. We reverse the district court's declaration that Retzlaff's expunction petition was frivolous and render judgment that it was not. We affirm the remaining portions of the district court's judgment.
J. Woodfin Jones, Justice
Before Justices Jones, B. A. Smith and Yeakel
Reversed and Remanded in Part; Reversed and Rendered in Part; Affirmed in Part
Filed: October 14, 1999
Do Not Publish
unty Court At Law, Retzlaff pleaded nolo contendere to the misdemeanor offense of criminal attempt of harassment. The county court placed Retzlaff on deferred adjudication community supervision for six months and ordered him to pay a $500 fine