                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo
                             ________________________

                                  No. 07-13-0072-CV
                             ________________________

                       IN RE PAUL THOMAS GERIK, RELATOR



        Original Proceeding Arising From Proceedings Before the 181st District Court
                                   Randall County, Texas
                Trial Court No. 22,925-B, Honorable John Board, Presiding


                                    March 22, 2013

                            MEMORANDUM OPINION
                   Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


      Relator, Paul Thomas Gerik, proceeding pro se and in forma pauperis, seeks a

writ of mandamus to compel the Honorable John Board to enforce this Court’s Order of

Abatement issued December 20, 2012, in Gerik v. State, 2012 Tex. App. LEXIS 10591

Tex.App.—Amarillo Dec. 20, 2012, no pet.).       For reasons expressed herein, we deny

mandamus relief.
                                  BACKGROUND FACTS


      Relator was convicted of burglary of a habitation, enhanced, and on August 8,

2012, he was sentenced to ninety-nine years confinement.           An appeal from that

conviction is pending in this Court in Gerik v. State, No. 07-12-0360-CR.   Per the Bill of

Costs, he was assessed $299 in legislatively mandated costs and fees. On November

6, 2012, the trial court signed an Order to Withdraw Funds authorizing the Texas

Department of Criminal Justice to begin withdrawing funds from Relator’s inmate

account to satisfy the costs and fees owed. Relator appealed the Order to Withdraw

Funds and that appeal is pending in Gerik v. State, No. 07-12-0452-CV. By the Order

of Abatement issued on December 20th, this Court abated that appeal for 180 days to

allow Relator an opportunity to challenge the statutory basis and amount of sums

assessed in the Bill of Costs to satisfy the due process requirements discussed in

Harrell v. State, 286 S.W.3d 315 (Tex. 2009).


                            MANDAMUS STANDARD OF REVIEW


      Mandamus relief is extraordinary.         In re Braswell, 310 S.W.3d 165, 166

(Tex.App.--Amarillo 2010, orig. proceeding) (citing In re Southwestern Bell Telephone

Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding)). A mandamus issues

only to correct a clear abuse of discretion or the violation of a duty imposed by law when

there is no other adequate remedy by law. Walker v. Packer, 827 S.W.2d 833, 839

(Tex. 1992) (orig. proceeding), quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d

916, 917 (Tex. 1985) (orig. proceeding). To show entitlement to mandamus relief, a

relator must satisfy three requirements: (1) a legal duty to perform; (2) a demand for


                                            2
performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.

1979).


                                            ANALYSIS


           An Order to Withdraw Funds may be challenged by way of a motion to modify,

correct or rescind the order. See Snelson v. State, 326 S.W.3d 754, 756 (Tex.App.—

Amarillo 2010, no pet.); Williams v. State, 322 S.W.3d 301 (Tex.App.—Amarillo 2010,

no pet.). According to Relator’s petition, the only motion he has filed in the trial court is

a motion to enforce our abatement order. Relator misunderstands the purpose of our

order. As stated above, the abatement order merely suspends the appeal for 180 days

to allow Relator the opportunity to challenge the withdrawal order. Our abatement order

in no way directs the Texas Department of Criminal Justice to cease withdrawing funds

from Relator’s inmate account.


           From the limited documents filed in this proceeding, it does not appear that there

is a pending motion in the trial court challenging the Order to Withdraw Funds. Thus,

Judge Board has no legal duty to perform at this time. Consequently, mandamus will

not lie.


           Accordingly, the petition for writ of mandamus is denied.


                                                           Per Curiam




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