In Re the Expunction of Retzlaff
2011 Tex. App. LEXIS 5731
| Tex. App. | 2011Background
- Retzlaff was arrested in San Antonio for six counts of misdemeanor harassment (Aug–Dec 2008).
- Charges were filed in Nueces County Court at Law No. Four and dismissed Jan 28, 2010 because the complaining witness could not be located.
- Retzlaff filed a petition for expunction on Feb 9, 2010; the State opposed, arguing limitations had not expired before filing.
- Retzlaff claimed the dismissal was with prejudice, sought a continuance to obtain testimony, and the district court heard evidence Mar 25, 2010.
- The State submitted certified dismissal documents that did not indicate the charges were dismissed with prejudice; the trial court denied expunction.
- Appellant appeals two issues: (1) entitlement to expunction based on statutory requirements; (2) abuse of discretion denying continuance; the court affirms.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether expunction was proper under Article 55.01(a)(2)(A)(i) | Retzlaff: limitations expired before filing. | State: limitations had not expired; burden on petitioner. | Issue One overruled; limitations not shown expired; no entitlement. |
| Whether the denial of continuance was an abuse of discretion | Retzlaff: continuance needed to prove prejudice/dismissal | State: no abuse; evidence supports judgment; collateral attack not allowed | Issue Two overruled; continuance denial not an abuse of discretion. |
Key Cases Cited
- Wilborn v. GE Marquette Med. Sys., Inc., 163 S.W.3d 264 (Tex.App.-El Paso 2005) (continuance decisions rest in trial court's discretion; not reversed absent abuse)
- Adams v. State, 222 S.W.3d 37 (Tex.App.-Austin 2005) (collateral attacks in criminal context limited to void judgments)
- Nix v. State, 65 S.W.3d 664 (Tex.Crim.App.2001) (collateral attacks generally limited to void judgments)
- In re J.A., 186 S.W.3d 592 (Tex.App.-El Paso 2006) (legal sufficiency review for expunction; burden to show compliance with statute)
- In re E.R.W., 281 S.W.3d 572 (Tex.App.-El Paso 2008) (expunction requires all statutory conditions to be met; burden on petitioner)
- State v. Beam, 226 S.W.3d 392 (Tex. 2007) (limitations period applies to expunction; misdemeanor two-year limit)