                                NO. 07-10-0181-CV
                                NO. 07-10-0182-CV
                                NO. 07-10-0183-CV

                           IN THE COURT OF APPEALS

                    FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL C

                                   MAY 19, 2010

                       ______________________________


                        BENNY JOE PALOMO, APPELLANT

                                         V.

                        THE STATE OF TEXAS, APPELLEE


                      _________________________________

          FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

   NOS. 18,223-B, 18,368-B, & 18,369-B; HONORABLE JOHN B. BOARD, JUDGE

                       _______________________________

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


                            OPINION ON ABATEMENT


      On February 25, 2010, in each referenced cause, pursuant to § 501.014(e) of the

Texas Government Code, the trial court signed and entered an Order to Withdraw
Inmate Funds.1 By the withdrawal notifications entered in each cause, the trial court

directed the Texas Department of Criminal Justice Institutional Division to withhold the

following amounts: (1) $1,810.31 in cause number 18,223-B; (2) $616.50 in cause

number 18,368-B; and (3) $616.50 in cause number 18,369-B. Appellant filed pro se

notices of appeal on May 5, 2010, challenging the withdrawal notifications. While each

withdrawal notification contained the statement that "court costs, fines and fees have

been incurred as represented in the certified Bill of Cost/Judgment attached hereto,"

none contained an attachment of any kind. Furthermore, while the judgment entered in

each case provides that "the State of Texas do have and recover of said [Appellant] all

court costs in this prosecution expended . . . ," the summary portion of each judgment

leaves costs blank.


        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



        1
           This document is not an "order" in the traditional sense of a court order, judgment, or decree
issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, Tex. Gov't
Code Ann. § 501.014(e) (Vernon Supp. 2009), describes the process as a "notification by a court"
directing prison officials to withdraw sums from an inmate's trust account, in accordance with a schedule
of priorities set by the statute, for the payment of "any amount the inmate is ordered to pay by order of the
court." See id. at § 501.014(e)(1)-(6). See also Harrell v. State, 286 S.W.3d 315, 316, n.1 (Tex. 2009).
This document is more akin to a judgment nisi. A judgment nisi, commonly used in bond forfeiture
proceedings, is a provisional judgment entered when an accused fails to appear for trial. A judgment nisi
triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding.
It is not final or absolute, but may become final. See Safety Nat'l Cas. Corp. v. State, 273 S.W.3d 157,
163 (Tex.Crim.App. 2008). Nisi means "unless," so a judgment nisi is valid unless a party takes action
causing it to be withdrawn. Id. Similarly, a withdrawal notification issued pursuant to § 501.014(e),
triggers a trust fund withdrawal, serves as notice of the collection proceeding, and continues to operate
unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to
that document as an order, we prefer to use the term "withdrawal notification" to avoid confusion with an
underlying court order or judgment ordering the payment of a sum falling within at least one of the six
priority categories listed in the statute.



                                                     2
trust account pursuant to § 501.014(e) is a civil matter2 akin to a garnishment action or

an action to obtain a turnover order. Harrell, 286 S.W.3d at 317-19. 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. The Court found that private interest to be easily

ascertainable--"the amount identified in a prior court document", i.e., "the costs

assessed when the convicting court sentenced him."                   Harrell, 286 S.W.3d 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



        2
         See 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).



                                                   3
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. 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 and 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

                                            4
inmate to receive notice3 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 heard4 (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 Appellant

has been given all that due process requires. Specifically, we are unable to determine

whether Appellant has been (1) provided with 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



        3
          In assessing the risk of erroneous deprivation of property, the Supreme Court in Harrell
considered the risk to be "modest" because notice under the statute is "based on an amount identified in
a prior court document." Harrell, 286 S.W.3d at 320 (emphasis added). The Court went on to comment
that the risk would be minimized if the trial court included a copy of the underlying order or judgment that
assessed costs when it issues a withdrawal notification. We wholeheartedly adopt the Supreme Court's
recommendation in this regard. We express no opinion as to whether a clerk issued bill of costs or a
statement in an underlying court document which merely assesses "costs of court" against the defendant
without stating the basis or amount of those costs constitutes adequate notice for purposes of due
process. We further note that the mere assessment of attorney fees does not make them collectable
through this process. Under article 26.05(g) of the Texas Code of Criminal Procedure, the trial court has
authority to order reimbursement of appointed attorney fees only if the court makes a fact-specific
determination that a defendant has financial resources that enable him to offset, in part or in whole, the
costs of the legal services provided. See Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon Supp. 2009).
See also Mayer v. State, ___ S.W.3d ___, No. PD-0069-09, 2010 Tex. Crim. App. LEXIS 100, at *11
(Tex.Crim.App. March 24, 2010).
        4
         While the court of appeals's opinion is silent on whether a hearing was held on Harrell's motion
to rescind, 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), the trial court did enter a specific
order denying his motion to rescind the withdrawal notification. We read the Supreme Court's opinion as
assuming that, by this process, Harrell was given "an opportunity to be heard." Harrell, 286 S.W.3d at
321.



                                                     5
court of any alleged errors." Id. 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 Appellant's notices of appeal to be premature. See

Williams v. State, __ S.W.3d __, Nos. 07-10-0091-CV, 07-10-0100-CV, and 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 Appellant 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.).            All appellate

timetables will begin to run from the date a final, appealable order is signed.


       It is so ordered.


                                                 Per Curiam




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