

NO. 07-10-00120-CV, 07-10-00121-CV
 
IN THE COURT OF APPEALS
 
FOR THE
SEVENTH DISTRICT OF TEXAS
 
AT
AMARILLO
 
PANEL A
 

JUNE
17, 2010
 

 
HARVEY FLOYD HODO, APPELLANT
 
v.
 
THE STATE OF TEXAS, APPELLEE 

 

 
 FROM THE 47TH DISTRICT COURT OF RANDALL
COUNTY;
 
NO. 18700-A, 18765-A; HONORABLE HAL MINER, JUDGE

 

 
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.[1]  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[2]
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[3] (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
 
 
 




[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 section 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]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 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, No. PD-0069-09,
2010 Tex.Crim.App. LEXIS 100, at *11  (Tex.Crim.App. March 24, 2010).


[3]While the court of appeals's opinion is silent on whether a hearing was held
on Harrell's motion to rescind, Harrell, 2007 Tex.App. LEXIS 6416, at *3, 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.
 


