                      NO. 07-10-00120-CV, 07-10-00121-CV
                                       
                            IN THE COURT OF APPEALS
                                       
                       FOR THE SEVENTH DISTRICT OF TEXAS
                                       
                                  AT AMARILLO
                                       
                                    PANEL A
                                       
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JUNE 17, 2010
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                         HARVEY FLOYD HODO, APPELLANT
                                       
                                      v.
                                       
                         THE STATE OF TEXAS, APPELLEE 
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                FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;
                                       
               NO. 18700-A, 18765-A; HONORABLE HAL MINER, JUDGE
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Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                                       
                             OPINION ON ABATEMENT
	On March 23, 2010, in each referenced cause, pursuant to section 501.014(e) of the Texas Government Code, the trial court signed and entered an Order to Withdraw Inmate Funds.  By the withdrawal notifications entered in each cause, the trial court directed the Texas Department of Criminal Justice, Institutional Division, to withhold from Hodo's inmate trust account the following amounts: (1) $1,586.50 in cause number 18700-A; and (2) $486.50 in cause number 18765-A.  Hodo filed pro se notices of appeal on April 6, 2010, challenging the withdrawal notifications.  While both of the judgments upon which the withdrawal notifications were based include an order that the State recover "all court costs," the judgments do not assess these costs.  
In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate trust account pursuant to section 501.014(e) is a civil matter akin to a garnishment action or an action to obtain a turnover order.  Id. at 317-19; see also Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App. 2008) (holding that orders directing withdrawal of funds from inmate trust accounts is not a criminal matter).  In determining whether Harrell was accorded constitutional due process in that proceeding, the Court balanced three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and noted that Harrell had "already received some measure of due process."  Harrell, 286 S.W.3d at 320.
	The three Eldridge factors considered in Harrell are: (1) the private interest affected by the official action, (2) the risk of an erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, and (3) the government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail.  Id. at 319-20 (citing Mathews, 424 U.S. at 335).  The Court found the private interest to be affected to be easily ascertainable by reference to the amount identified in a prior court document, which could be "stated with exactness" as "the costs assessed when the convicting court sentenced him."  Id. at 320.  Regarding the risk of erroneous deprivation, the Court identified the risk as modest where withdrawal notifications under the statute are based on an amount identified in a previous court document.  See Tex. Gov't Code Ann. § 501.014(e)(1)-(6) (Vernon Supp. 2009).  The Court noted that "Harrell was . . . notified of the costs assessed when the convicting court sentenced him" and he was free to contest them at the time they were assessed.  Harrell, 286 S.W.3d at 320.  However, the Court went on to recognize there could be a greater risk of erroneous deprivation in instances in which the amount in the withdrawal notification varied from the amount in the underlying judgment or those instances where there were clerical or other errors.  Id.  In assessing the final factor, the government's interest, the Court addressed the fiscal and administrative burdens of added or alternative procedures and concluded that the Texas Department of Criminal Justice would face expending more money than it would collect if it were required to conform to "full-blown" statutory garnishment requirements.  Id.  In the Court's opinion, such a drawn-out procedure might subvert the Legislature's goal of efficient cost-collection.  Id.
Harrell had been convicted of drug charges in 1997 and 2003.  In 2006, the convicting trial court signed an order authorizing the Texas Department of Criminal Justice, Institutional Division, to withdraw funds from his inmate trust account to pay for court costs and fees for appointed counsel.  Harrell was provided with copies of the withdrawal notifications.  He then moved to rescind the withdrawal notifications alleging denial of due process.  His motion was denied, and his direct appeal to this Court was dismissed for want of jurisdiction on the ground that no statutory mechanism was available for appealing a withdrawal notification.  See Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex.App. LEXIS 6416, at *3 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2008). 
	In reversing this Court and rendering judgment affirming the trial court's Order Denying Harrell's Motion to Rescind, the Supreme Court held that due process entitles an inmate to receive notice and an opportunity to be heard, even though those requirements might be accorded the inmate after funds are withdrawn.  Harrell, 286 S.W.3d at 321.  It concluded that because Harrell had received notice (a copy of the withdrawal notification) and an opportunity to be heard (the motion to rescind), he had received all that due process required.  Id.  The Court added, "[t]he Constitution does not require pre-withdrawal notice or a comprehensive civil garnishment proceeding."  Id.
	 On the limited record before this Court, we are unable to determine if Hodo has been given all that due process requires.  Specifically, we are unable to determine whether Hodo has been (1) provided the necessary underlying documentation, and (2) afforded an adequate opportunity "to compare the amounts assessed by the trial court [in the underlying criminal proceedings] to the amount[s] withdrawn and alert the court of any alleged errors."  See id.  
	If an appellate court is uncertain about the intent of an order to finally dispose of all claims, it can abate the appeal to permit clarification by the trial court.  See Tex. R. App. P. 27.2.  Because the trial court has not entered an appealable order either granting or denying a motion to confirm, modify, correct, or rescind the prior withdrawal notification, we find Hodo's notices of appeal to be premature.  See Williams v. State, Nos. 07-10-0091-CV, 07-10-0100-CV, 07-10-0101, 2010 Tex.App. LEXIS 2998, at *8-9, (Tex.App.--Amarillo April 22, 2010, no pet. h.).  
	Accordingly, this Court sua sponte abates this appeal for 180 days from the date of this order to allow Hodo time to take such action as is necessary to (1) obtain the necessary documentation of the underlying court order; (2) compare the underlying court order to the withdrawal notification; (3) file an appropriate motion to modify, correct, or rescind the withdrawal notification; (4) present that motion to the trial court; (5) schedule any necessary hearing; and (6) obtain from the trial court a final appealable order addressing that motion.  See Tex. R. App. P. 27.2; see also Iacono v. Lyons, 6 S.W.3d 715 (Tex.App.--Houston [1st Dist.] 1999, no pet.) (finding appeal prematurely filed and abating and remanding to permit the jurisdictional defect to be cured).  All appellate timetables will begin to run from the date a final, appealable order is signed.
	It is so ordered.
							Per Curiam



