                                     NO. 07-12-0132-CV
                                     NO. 07-12-0133-CV

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL A

                                    MAY 14, 2012
                           ______________________________


                         WESLEY WREN MASSEY, APPELLANT

                                               V.

                           THE STATE OF TEXAS, APPELLEE


                         _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

         NOS. B17187-0704 & B17992-0904; HONORABLE ED SELF, JUDGE

                          _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                               ABATEMENT AND REMAND


      Appellant, Wesley Wren Massey, was convicted of the state jail felony offenses

of theft1 and forgery2 and assessed sentences of one year and two years respectively.

Both sentences commenced on May 27, 2009, and the trial court ordered that the

sentences be served concurrently. Almost three years later, on March 16, 2012, after
1
Trial Court Cause No. B17187-0704; Tex. Penal Code Ann. § 31.03 (West Supp. 2011).
2
Trial Court Cause No. B17992-0904; Tex. Penal Code Ann. § 32.21 (West 2011).
Appellant had fully served both sentences, the trial court entered an Order to Withdraw

Funds in each cause.3 Both orders direct the Texas Department of Criminal Justice to

withhold sums for "court costs, fees and/or fines and/or restitution" related to the

respective underlying proceedings. While the judgment in Cause No. B17187-0704

orders Appellant to pay $1,000.00 in fines, $217.00 in court costs, $353.00 in restitution,

and $800.00 in attorney's fees (totaling $2,370.00), the withdrawal order in that cause

directs the withholding of $1,804.50 from his inmate account. And, while the judgment

in Cause No. B17992-0904 orders Appellant to pay $750.00 in fines, $275.00 in court

costs and $1,141.37 in restitution (totaling $2,166.37), the withdrawal order in that

cause directs the withholding of $817.89. Furthermore, while neither order contains an

attached Bill of Costs or other explanation as to what the respective withholding

amounts were for or how the dollar amounts were derived, both orders were apparently

entered sua sponte and without notice or hearing. Proceeding pro se and in forma

pauperis, Appellant appeals both orders.


                   Orders to Withdraw Inmate Funds and Due Process


        In Harrell v. State, 286 S.W.3d 315 (Tex. 2009), the Texas Supreme Court held

that a withdrawal order directing prison officials to withdraw money from an inmate

account pursuant to section 501.014(e) does not violate due process and is, therefore,

constitutional when the inmate has "received some measure of due process." Id. at

320. In determining whether Harrell was accorded constitutional due process, the Court

balanced the three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96
3
 Although the statutory basis for the Order to Withdraw Funds was not recited in the order, we presume
the trial court was attempting to order the withdrawal of funds from an inmate's account pursuant to Tex.
Gov't Code Ann. § 501.014(e) (West Supp. 2011).


                                                   2
S.Ct. 893, 47 L.Ed.2d 18 (1976).4              The Court concluded that because Harrell had

received notice of the withdrawal (a copy of the withdrawal order) and an opportunity to

contest the dollar amount and statutory basis of the withdrawal (a motion to rescind or

modify the withdrawal order subsequently filed by Harrell),5 he received all that due

process required.        Id. at 321.       The Court also added that neither notice nor an

opportunity to be heard need occur before the issuance of a withdrawal order. Id. This

Court has interpreted Harrell as saying that due process requires that an inmate have

an opportunity to contest the dollar amount and statutory basis of the withdrawal by way

of a motion to modify, correct or rescind the withdrawal 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.); and Bryant v. State, No. 07-10-00358-CV, 2010

Tex. App. LEXIS 8059, at *4-5 (Tex.App.--Amarillo Oct. 5, 2010, no pet.) (mem. op.).


        The limited documents before this Court do not demonstrate whether Appellant

has had the opportunity to challenge the amounts assessed and the statutory basis for

those amounts, which are the principal components supporting a withdrawal order. At

this stage of the proceeding, this Court is unable to evaluate whether Appellant has

received all that due process requires. Consequently, we sua sponte abate this appeal




4
 The three Eldridge factors 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.
5
 The trial court denied Harrell's Motion to Rescind. See Harrell v. State, Nos. 07-06-0469-CR, 07-06-
0470-CR, 2007 Tex. App. LEXIS 6416, at *2 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315
(Tex. 2009).


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for 180 days and remand the cause to the trial court to give Appellant the opportunity to

file a challenge to the withdrawal orders and develop a record for meaningful review.


      Upon remand, Appellant is entitled to file a motion to modify, correct or rescind

the withdrawal notifications, present the motion to the trial court and have it considered

by the trial court by whatever means necessary. Additionally, should Appellant file a

motion in the trial court challenging the withdrawal order, and should attorney's fees

constitute all or any portion of the withholding amount, the trial court shall confirm

whether there is a factual basis to support the trial court's finding in Cause No. B17187-

0704 that Appellant is able to pay $800 in attorney's fees. See Mayer v. State, 309

S.W.3d 552 (Tex. 2010) (holding that an order to reimburse court-appointed attorney's

fees must be supported by evidence of the defendant's ability to pay). See also Perez

v. State, 323 S.W.3d 298, 307 (Tex.App.--Amarillo 2010, pet. ref'd).


      Should Appellant challenge the withdrawal orders, any ruling resulting from that

challenge shall be included in either the clerk's record or a supplemental clerk's record

to be filed with the Clerk of this Court on or before November 30, 2012. Should the

period of abatement expire without any action being taken by Appellant, these appeals

will be reinstated and dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).


      It is so ordered.


                                                Per Curiam




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