Thomas C. Retzlaff v. State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-00-00339-CV Thomas C. Retzlaff, Appellant v. State of Texas, Appellee FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT NO. 170,506-C, HONORABLE RICK MORRIS, JUDGE PRESIDING Appellant Thomas C. Retzlaff petitioned to have the records of several criminal charges expunged and the trial court denied his petition. On appeal, this Court held Retzlaff was entitled to the expunction of trial court cause numbers 2C97-1671, 2C97-1673, 2C97-1674, 2C97-1670, and CC2C97-39714C.(1) On remand, after the district court ordered the expunction of the arrest and court records in the five causes, Retzlaff filed a motion to modify the district court's expunction order, asserting the order: (1) should have granted him $100 for costs he incurred in prosecuting his appeal; (2) should direct that all records and files related to the expunged causes be returned to Retzlaff and not the district court; and (3) must be modified to include language and information mandated by article 55.02 of the Texas Code of Criminal Procedure. The district court did not rule on Retzlaff's motion to modify, and Retzlaff now appeals, alleging the order does not comply with the mandate issued by this Court. We will modify the order to include information required by article 55.02 and affirm as modified. Costs In our judgment, we assessed appellate costs against the Bell County Attorney's Office. Retzlaff contends the district court erred in refusing to modify the expunction order to award him $100 in costs he incurred in prosecuting his appeal, costs for "postage, postage supplied, typing paper, typewriter ribbon, note pads, and pens." We disagree. "Costs" assessed by our mandates do not include items that would be billed by an attorney to a client as part of attorney's fees for services provided, but "refer to '[f]ees and charges required by law to be paid to the courts or some of their officers, the amount of which is fixed by statute or the court's rules; e.g., filing and service fees.'" Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 206 (Tex. App.--Austin 1992, no writ) (quoting Black's Law Dictionary 312 (5th ed. 1979)); see Ward v. Worsham, 24 S.W. 843, 845 (Tex. Civ. App. 1894, writ denied) ("The court properly refused to tax as an item of cost incurred on the previous appeal the amount paid by the appellant for the printing of his brief."); 16 Tex. Jur. 3d Costs § 139 (1997) (expenses for preparation of brief not taxable). Costs include filing fees, charges for the clerk's record, and charges for the reporter's record, if any. Harris County Children's Protective Servs. v. Olvera, 971 S.W.2d 172, 177 (Tex. App.--Houston [14th Dist.] 1998, pet. denied); Tex. R. App. P. 20.1(m); 16 Tex. Jur. 3d Costs §§ 137-140; O'Connors Texas Civil Appeals 39-41 (Jessie A. Amos & Diane M. Guariglia eds., 2000-2001 ed.); 3 Texas Civil Trial and Appellate Procedure § 19-3(k) (Jeremy C. Wicker, ed., 1999). Retzlaff is not entitled to payment for miscellaneous costs incurred in preparing his appeal, such as postage, typing supplies, and pens. Such costs are of the sort that an attorney might include in assessing attorney's fees and do not qualify as appellate costs. We overrule Retzlaff's contention that the expunction order should be modified to award him $100 for appellate costs. Return of the Records Retzlaff contends that article 55.02 of the Code of Criminal Procedure entitles him to have records and files related to the expunged causes returned to him. An official, agency, or entity named in an expunction order must "return all records and files that are subject to the expunction order to the court or, if removal is impracticable, obliterate all portions of the record or file that identify the person who is the subject of the order and notify the court of its action." Tex. Code Crim. Proc. art. 55.02, § 5(a)(1) (West Supp. 2000) (emphasis added). Once such records are returned to the trial court, the court "may give the person who is the subject of the order all records and files returned to [the court] pursuant to its order." Id. § 5(b) (emphasis added). The district court's expunction order satisfied article 55.02 by ordering as follows: It is ORDERED that each official, agency, or other entity listed below return all records and files concerning the [expunged causes] to the court, or if removal is impracticable, to obliterate all references to [Retzlaff] as to the [expunged causes] and notify the court of its action. It is ORDERED that any official, agency, or other entity listed below that has sent information concerning the [expunged causes] to a central federal depository of criminal records request the agency to return the records to the court, or if removal is impracticable, to obliterate all references concerning [Retzlaff] as to the [expunged causes] and notify the court of its action. Article 55.02 does not give Retzlaff the right to have records returned to him; it simply gives the district court discretion to return the records if it so chooses. If the district court does not return the records, on the first anniversary of the expunction order the district clerk will destroy all records and files held. Id. § 5(d). We overrule Retzlaff's contention that he is entitled to have the expunction order modified to have his records and files returned to him. Article 55.02 Information Retzlaff contends the district court's expunction order is incorrect because it does not contain all of the information required by article 55.02. We agree. Under article 55.02, an expunction order must include specific information about the person and arrests that are the subjects of the order. Id. § 3(b). A comparison of the order in this cause to article 55.02 shows that the order should be amended to include Retzlaff's sex, race, driver's license number, and social security number. We modify the expunction order to indicate that Retzlaff is a white male whose Texas driver's license number is 09602603 and social security number is XXX-XX-XXXX. Conclusion We overrule Retzlaff's first two claims seeking $100 in miscellaneous costs and the return of all court records. We sustain Retzlaff's contention that the order lacks some of the information required by article 55.02 of the Texas Code of Criminal Procedure and we modify the expunction order to include the following information: Retzlaff is a white male whose Texas driver's license number is 09602603 and social security number is XXX-XX-XXXX. We affirm the order as modified. Bea Ann Smith, Justice Before Chief Justice Aboussie, Justices B. A. Smith and Patterson Modified and, as Modified, Affirmed Filed: October 26, 2000 Do Not Publish 1. See Retzlaff v. Bell County Attorney's Office, No. 03-98-00580-CV (Tex. App.--Austin October 14, 1999, no pet.) (not designated for publication). em>Harris County Children's Protective Servs. v. Olvera, 971 S.W.2d 172, 177 (Tex. App.--Houston [14th Dist.] 1998, pet. denied); Tex. R. App. P. 20.1(m); 16 Tex. Jur. 3d Costs §§ 137-140; O'Connors Texas Civil Appeals 39-41 (Jessie A. Amos & Diane M. Guariglia eds., 2000-2001 ed.); 3 Texas Civil Trial and Appellate Procedure § 19-3(k) (Jeremy C. Wicker, ed., 1999). Retzlaff is not entitled to payment for miscellaneous costs incurred in preparing his appeal, such as postage, typing supplies, and pens. Such costs are of the sort that an attorney might include in assessing attorney's fees and do not qualify as appellate costs. We overrule Retzlaff's contention that the expunction order should be modified to award him $100 for appellate costs. Return of the Records Retzlaff contends that article 55.02 of the Code of Criminal Procedure entitles him to have records and files related to the expunged causes returned to him. An official, agency, or entity named in an expunction order must "return all records and files that are subject to the expunction order to the court or, if removal is impracticable, obliterate all porti