                                   IN THE
                           TENTH COURT OF APPEALS

                                   No. 10-10-00195-CV
                                   No. 10-10-00196-CV

GERARDO BAZALDUA,
                                                               Appellant
v.

THE STATE OF TEXAS,
                                                               Appellee


                          From the 54th District Court
                           McLennan County, Texas
                  Trial Court Nos. 1997-662-C2 and 1999-420-C2


                             DISSENTING OPINION


       Bazaldua has invoked this Court’s jurisdiction in each appeal by timely filing a

notice of appeal. Because the Court dismisses the appeals upon the basis that we lack

jurisdiction, I respectfully dissent.

       The Court errs in determining the event to which the notice of appeal filing

deadline is tied. Further, the Court errs in determining that, if it is tied to the event they

have identified, we do not have jurisdiction of the appeal. The Court ties the appellate

timetable, in particular the time within which a notice of appeal must be filed, to the
date the trial court signed the notice which advises TDCJ that a judgment has been

rendered against Bazaldua. The Court is led into this error because the trial court

applied a label to the document identifying it as an order. But as the Texas Supreme

Court and this Court have both noted, it is only a notice; not really an order. Harrell v.

State, 286 S.W.3d 315, 316 fn.1 (Tex. 2009); Ramirez v. State, ___ S.W.3d ___, No. 10-10-

00157-CV, 2010 Tex. App. LEXIS 3837, *2 (Tex. App.—Waco May 19, 2010, no pet. h.).

In reference to its own opinion, the Supreme Court stated: “This opinion uses the term

‘withdrawal order’ since that is what the trial court entered in this case. However, the

controlling statute describes the trigger as ‘notification by a court’—something that

informs prison officials of an inmate’s obligations and directs officials to withdraw

funds. See Tex. Gov’t Code Sec. 501.014.(e).” Harrell, 286 S.W.3d at 316 fn.1. Such a

notice, though called an “order,” is precisely what the trial court signed on January 13,

2010.

        The underlying judgments are not in the record before us, but they appear to

have been rendered in 1997 and 1999 based on the cause numbers of the underlying

proceedings. And if Bazaldua were complaining about the fact that costs had been

assessed against him in the judgment and sentence as part of his criminal conviction,

that complaint must be made on direct appeal; and the notice of appeal must be filed in

relation to the date sentence was imposed in open court. But, except as discussed

below, that is not what Bazaldua is complaining about. Bazaldua does not appear to be

appealing the fact that costs have been assessed against him as part of his judgment of

conviction; rather, he is complaining that the notice the trial court has sent to TDCJ to

Bazaldua v. State                                                                   Page 2
put TDCJ on notice of the judgment and the amount to be withdrawn from Bazaldua’s

inmate account is erroneous because the cost have already been paid, not once but

twice.1

          There is, however, one part or portion of the motion to rescind that could be

construed as an attack on the trial court’s decision to assess cost against Bazaldua. That

portion of the motion is set out below. All emphasis, spelling, and grammar are as

presented in the motion.

                 Defendant is relying on Texas Code of Criminal Procedure, Article
          26.05 to show the Court that these charges were levied upon in violation
          of this of this statutory procedure. In order to impose attorney or other
          fees on the Defendant, there must be some factual basis illustrating not
          only that Defendant is capable of paying an attorney fee, but also that he
          can pay the fee levied.

                 Article 26.05 of the Texas Code of Criminal Procedure provides:
                        “If the Court determines that a defendant has financial
                 resources that enable him to offset in part or in whole the
                 costs of the legal services provided, including any expenses
                 and costs, the court shall order the defendant to pay during
                 the pendency of the charges or, if convicted, as court costs
                 the amount that it finds the defendant is able to pay.”

                 A fair and plain reading of the statute leads us to conclude that
          there must be some factual basis illustrating not only that the defendant is
          capable of paying an attorney’s fee but also that he can pay the fee levied.
          The only data touching upon this topic appears to be the form the
          defendant completed to secure a court-appointed attorney, and that form
          shows him to be unemployed and living with a relative. Therefore the
          Court should recognize that no evidentiary basis exists supporting the


1
  See Harrell v. State, 286 S.W.3d 315, 318 (Tex. 2009) (“Harrell is not contesting the convicting court’s
authority to assess cost but its authority to collect cost.” (emphasis in original)). See also Chudej v. State, 255
S.W.3d 273, 273-275 (Tex. App.—Waco 2008, pet. denied) (Gray, C.J., dissenting). While subsequent
development of the law in this area has resolved some of the issues discussed in the dissenting opinion in
Chudej, I believe that the importance of the need to understand the specific nature of the appellant’s
complaint remains essential to a proper analysis of the issues.

Bazaldua v. State                                                                                          Page 3
        trial court’s decision to levy any fees upon the Defendant. For these
        reasons the Order of the Court should be rescinded and dismissed.

Appellant’s Motion to Rescind and Dismiss Order, pp. 1-2, CR at 8-9.

        Because the judgments of convictions, sentence, and assessment of cost are not in

the record currently available to me, I can only assume those judgments have an

assessment in each of court cost against Bazaldua. Further, as is most typical of all trial

court judgments, the determination of the actual amount of cost assessed is, at the time

the judgment is rendered by the trial court, unknown because the certified bill of cost is

not available. It is not available because the trial court clerk normally has not been

advised of all the cost to be included in the certified bill of cost. Some expenses which

the clerk may ultimately include in a certified bill of cost, such as cost for the motion for

new trial, appellate attorney fees, and for the appellate record, have obviously not been

incurred at the time the trial court renders a final judgment. Thus, a generic assessment

of court cost in the judgment is all that is possible.

        So to the extent that Bazaldua’s complaint is that there is no evidence in the

record to support his ability to pay any cost and therefore, under Texas Code of

Criminal Procedure article 26.05, the trial court erred in assessing any cost against him,

Bazaldua’s complaint is too late.         That complaint, if that is what Bazaldua is

complaining about, goes to the fact of assessment of cost. See Mayer v. State, 309 S.W.3d

552 (Tex. Crim. App. 2010) (A direct appeal of a criminal conviction in which the court

of appeals first affirmed the conviction and then addressed the assessment of cost; and

on the State Prosecuting Attorney’s petition for discretionary review, the Court of


Bazaldua v. State                                                                      Page 4
Criminal Appeals addressed the propriety of the trial court’s judgment assessing cost as

part of the judgment of conviction.). And as discussed above, because that complaint is

about the fact of assessing cost, as opposed to the amount assessed, the notice of appeal

would be due within 30 days of the date sentence was imposed in open court, or as

extended by a timely filed motion for new trial, to have invested this Court with

jurisdiction to review it. But because I am unable to confirm or negate the assumptions

described on the partial record available to me, I am unable to conduct a proper review

of the Court’s jurisdiction of this complaint. This is yet another reason to allow these

appeals to proceed on their merits until we are able to conduct a proper review of our

jurisdiction and the issues raised by the parties.

        But, the Court has simply ignored that the procedure Bazaldua used, a post

notice motion to rescind the trial court’s notice of judgment sent to TDCJ, is the

procedure essentially ratified and approved by the Texas Supreme Court in Harrell v.

State, 286 S.W.3d 315 (Tex. 2009). The trial court notified TDCJ of the judgments and the

amount to be taken from Bazaldua’s account on January 13, 2010. Thereafter, Bazaldua

filed motions to rescind the notices on April 28, 2010, challenging the amount to be

withdrawn. The trial court denied the motions to rescind in separate written orders on

May 6, 2010. Bazaldua filed his notices of appeal timely, on May 27, 2010, after the trial

court denied Bazaldua’s motion in each proceeding to rescind the trial court’s notice of

judgment which had been sent to TDCJ. See TEX. R. APP. P. 26.1.

        Thus, Bazaldua is complaining about the procedure which is “substantively akin

to a garnishment action or an action to obtain a turnover order,” Harrell, 286 S.W.3d at

Bazaldua v. State                                                                   Page 5
318, used by the State to collect the cost assessed against him in the criminal judgments,

and is also complaining about the amount that has been assessed and taken from his

inmate account.2 The notice sent by the trial court to TDCJ is substantively akin to the

petition for a writ of garnishment filed in a typical garnishment proceeding and the

motion to rescind could be equated to either an answer or a motion to dismiss

challenging the issuance of the writ of garnishment for the amount sought. Thus, as in

a garnishment proceeding, the opponent does not get to reopen the original case, in this

proceeding the criminal conviction, but the person whose money is about to be taken

has the opportunity to show that either the procedure being used or the amount to be

taken is erroneous. See Harrell, 286 S.W.3d at 321.

        In this post judgment procedure to collect judgments from inmates, which is

being constructed on an ad hoc basis via case law, Bazaldua has utilized the proper

process at the trial court level, received an adverse determination on his request from

the trial court, and has properly and timely invoked this Court’s jurisdiction for a

review of the trial court’s adverse ruling by filing his notice of appeal within 30 days of

the date the order which rejected his challenge to the amount to be taken from his

account was signed. See TEX. R. APP. P. 26.1. Even if the notices of appeal were not

timely for a regular direct appeal, it is beyond question that they were filed in time to



2
  Courts, including this one, have frequently referred to these as inmate “trust” accounts. The term
“trust” has been removed from their statutory references. Act of 1989, 71st Leg., ch. 212, § 2.01, eff. Sept.
1, 1989, amended by Act of 1999, 76th Leg., ch. 62, §§ 8.10, 19.02(8), eff. Sept. 1, 1999 (current version at TEX.
GOV’T CODE ANN. § 501.014 (Vernon Supp. 2009)). They are simply inmate accounts. While there may be
a custodial relationship between the Department and the inmate as to the money in the account, an issue
not decided by us today, there is certainly no trustee/beneficiary relationship wherein the Department is
burdened with all the duties of a trustee with regard to the inmate’s money.

Bazaldua v. State                                                                                         Page 6
invoke our jurisdiction as a restricted appeal. See TEX. R. APP. P. 26.1(c). I would allow

the appeals to proceed on the merits. Because the Court dismisses the appeals upon the

basis that we have no jurisdiction, I respectfully dissent.



                                          TOM GRAY
                                          Chief Justice

Dissenting opinion delivered and filed September 1, 2010




Bazaldua v. State                                                                   Page 7
