                                  In The
                             Court of Appeals
                    Seventh District of Texas at Amarillo

                                  No. 07-14-00029-CV


                              DON SMITH, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 181st District Court
                                  Randall County, Texas
               Trial Court No. 11300-B, Honorable John B. Board, Presiding

                                     June 30, 2014

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

      Don Smith appeals from two withholding orders directed at his inmate trust

account. The orders specified that deductions be made from the trust account to pay

court costs and attorney’s fees. Payment of court costs was ordered via the judgment

convicting him of Aggravated Robbery with a Deadly Weapon. The first withholding

order, issued in 2010, was amended in 2012. Through the 2012 amendment, the trial

court rescinded the obligation to pay attorney’s fees. Furthermore, $350 taken from the

trust account for payment of such fees was returned to appellant. Thereafter, Smith
moved the trial court to rescind the orders in their entirety because he had not been

afforded prior notice of and opportunity to challenge the effort to withdraw funds from

the account.

      The trial court convened a telephonic hearing on Smith’s motion, and Smith

participated in it. While acknowledging his obligation to pay the costs involved, he

contended that he was entitled to due process (that is, notice and opportunity to be

heard) before the orders were issued.            After entertaining Smith’s testimony and

argument, the trial court denied the motion to rescind.

      Smith appealed the trial court’s decision and now contends that 1) he was

entitled to notice and opportunity to challenge the withdrawal orders before the trial

court issued them and 2) the procedures for effectuating a garnishment under Texas

Rules of Civil Procedure 657 et. seq. were not followed. Thus, both the original and

amended orders are void, in his view. We affirm the trial court’s decision.

      Regarding the argument about the failure to follow those Texas Rules of Civil

Procedure governing garnishments, we note that the argument was not raised at the

hearing below. So, it was not preserved. See TEX. R. APP. P. 33.1 (discussing the

manner in which to preserve complaints for review).          We also note that while the

proceeding at bar may be like a garnishment action, Harrell v. State, 286 S.W.3d 315,

319 (Tex. 2009), it arises under § 501.014 of the Texas Government Code, not Rules

657 et. seq. of the Texas Rules of Civil Procedure. So, the latter do not govern it. And,

as stated by our Supreme Court in Harrell,

      Nothing in Texas law requires the grafting of comprehensive garnishment
      procedures onto Government Code section 501.014. If TDCJ were
      required to conform strictly with full-blown statutory garnishment
      requirements as suggested by the Texarkana court of appeals in Abdullah


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       [v. State, 211 S.W.3d 938, 943 (Tex. App.—Texarkana 2007)], TDCJ
       would doubtless face expending more money than it would ever collect in
       many cases, since withdrawal orders typically seek modest sums. Faced
       with this cost-benefit tradeoff, TDCJ would likely opt not to seek
       recoupment at all, thus subverting the Legislature's goal of efficient cost-
       collection.


Id. at 320.

       As to the matter of due process, it is true that an inmate is entitled to notice and

opportunity to be heard when the State attempts to withdraw funds, without his

approval, from his inmate trust account. Harrell v. State, 286 S.W.3d at 321. But

“neither need occur before the funds are withdrawn.” Id.

       Here, the judgment memorializing Smith’s conviction contained a provision

obligating him to pay costs of court. Though the actual costs were not mentioned in the

decree, opportunity to address them was provided when the trial court convened its

hearing to entertain Smith’s motion to rescind. As previously mentioned, appellant did

not contest their amount. Instead, he told the trial court that “I understand that I owe

that.” He simply “wanted the opportunity to be heard before they just started taking my

money off my books . . . .” Yet, as held in Harrell, the opportunity for a hearing “before

the funds are withdrawn” need not have been afforded him.

       Given that Smith was informed about his duty to pay court costs through the

judgment under which he was convicted, acquired notice of the orders to withdraw

(though after withdrawals began), moved to rescind the orders, appeared at the hearing

on his motion, had the opportunity at the hearing to complain about the amount of costs

involved, and acknowledged that he owed them, we conclude that he received the due




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process contemplated under the Constitutions of Texas and the United States and by

Harrell. The orders are not void, as he asserts, due to the want of due process.

      Finally, and to the extent that Smith believes that the State is prevented from

collecting the court costs at issue since it waited for 13 years to do so, we refer him to

Sorsby v. State, 624 S.W.2d 227 (Tex. Civ. App.—Houston [1st Dist.] 1981, no writ)

where the court held that theories of adverse possession, estoppel, and laches do not

apply against the State.    Id. at 236.   In other words, the State’s delay in seeking

payment from the trust account posed no bar to it.

      We overrule appellant’s issues and affirm the trial court’s order refusing to

rescind the withholding orders.



                                                Brian Quinn
                                                Chief Justice




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