In Re SD
349 S.W.3d 76
| Tex. App. | 2010Background
- In April 2006, S.D. was indicted on four counts of aggravated sexual assault of a child and one count of indecency with a child, all involving the same complaining witness.
- The charges were dismissed and S.D. petitioned for expunction of the records.
- S.D. testified he mentored the complaining witness, who was his cousin, and that the witness was in a juvenile probation facility for sexual offenders when the allegations were made.
- S.D. denied all allegations and claimed he had never been convicted of a felony.
- The dismissal order stated the case was dismissed for 'prosecutor's discretion' and did not check other listed reasons for dismissal.
- The trial court granted expunction, and the County appeals asserting lack of evidence that S.D. was not placed on community supervision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expunction granted under Art. 55.01(a) is discretionary or guaranteed entitlement. | S.D. is entitled under Art. 55.01(a) if requirements met. | County contends lack of evidence on community supervision requirements. | Entitlement under Art. 55.01(a) applies; no abuse of discretion required. |
| Whether there is sufficient evidence that S.D. was not placed on community supervision. | No direct evidence needed; entitlement does not require magic words. | Evidence lacking on community supervision undermines entitlement. | No direct evidence required; record supports entitlement based on statute and facts. |
| Whether the dismissal basis (prosecutor's discretion) defeats expunction rights given statutory prerequisites. | Dismissal basis does not negate statutory entitlement. | Dismissal for prosecutor's discretion undermines eligibility. | Dismissal rationale does not control entitlement under Art. 55.01(a). |
Key Cases Cited
- In re E.R.W., 281 S.W.3d 572 (Tex.App.-El Paso 2008) (Expunction standard and burden on petitioner; statutory requirements are mandatory.)
- Ex parte Current, 877 S.W.2d 833 (Tex.App.-Waco 1994) (Two-section expunction statute: entitlement vs discretion; grant under §55.01(a) is not discretionary.)
- Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998) (Attacks on discretionary aspects of fee rules; relevance to standard of review.)
- In re M.R., 327 S.W.3d 306 (Tex.App.-El Paso 2010) (Abuse-of-discretion standard discussed in expunction review.)
- Ex parte Guajardo, 70 S.W.3d 202 (Tex.App.-San Antonio 2001) (Abuse-of-discretion framework cited as authority for expunction review.)
- In re Expunction of J.A., 186 S.W.3d 592 (Tex.App.-El Paso 2006) (Affirms use of legal sufficiency review in expunction context.)