                         COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                              NO. 02-11-00500-CV


Bobby Joe Roberts                       §    From the 355th District Court

                                        §    of Hood County (7263)
v.
                                        §    February 7, 2013

The State of Texas                      §    Opinion by Justice McCoy

                                 JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s order. The trial court’s withdrawal order is

modified to delete the requirement that Bobby Joe Roberts pay court-appointed

attorney’s fees.   It is ordered that the order of the trial court is affirmed as

modified.

                                    SECOND DISTRICT COURT OF APPEALS



                                    By_________________________________

                                      Justice Bob McCoy
                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00500-CV


BOBBY JOE ROBERTS                                                     APPELLANT

                                         V.

THE STATE OF TEXAS                                                      APPELLEE


                                      ----------

          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

                                      ----------

                                    OPINION

                                      ----------

      In one issue, pro se Appellant Bobby Joe Roberts appeals the trial court’s

order requiring him to pay attorney’s fees for his court-appointed trial attorney.

We modify the trial court’s order to withdraw funds and affirm it as modified.1




      1
       See Tex. R. App. P. 43.2(b).




                                          2
      On October 14, 1996, Roberts pleaded guilty to intoxication manslaughter,

was sentenced to fifty years’ confinement, and was ordered to pay $126.50 in

court costs and $250.00 in attorney’s fees. The record indicates that Roberts

was represented by appointed counsel at trial. After the trial court ordered the

funds withdrawn from Roberts’s inmate trust account, Roberts filed a motion to

modify the trial court’s withdrawal order. In his motion, Roberts argued that there

had been no material change in his financial resources since the court found him

indigent and asked the trial court to delete the attorney’s fees from the order. 2

The trial court denied Roberts’s motion, and this appeal followed.

      Both parties have informed us that the Texas Department of Criminal

Justice (TDCJ) has released Roberts on parole.

      In his sole issue, Roberts complains that the trial court abused its

discretion by ordering him to pay court-appointed attorney’s fees despite finding

him indigent. The State agrees with Roberts, but as a threshold issue, it argues

that Roberts’s release may render his complaint moot because the trial court

ordered a withdrawal of funds from Roberts’s inmate account but Roberts is no

longer incarcerated.

      “An issue may become moot when a party seeks a ruling on some matter

that, when rendered, would not have any practical legal effect on a then-existing


      2
       Roberts acknowledged that section 501.014(e) of the government code
required him to pay the court costs regardless of his ability to pay. See Tex.
Gov’t Code Ann. § 501.014(e) (West 2012).


                                        3
controversy.” Meeker v. Tarrant Cnty. Coll. Dist., 317 S.W.3d 754, 759 (Tex.

App.—Fort Worth 2010, pet. denied).           We must set aside the judgment and

dismiss the case when an appeal is moot. Id.

         Although no longer incarcerated, Roberts remains in TDCJ custody while

on parole. See Tex. Gov’t Code Ann. §§ 508.001(6), 508.143(a) (West 2012).

Furthermore, section 501.014(e) of the government code, which permits

withdrawal of funds from an inmate’s trust account to pay court costs, does not

prohibit collecting court costs during a defendant’s subsequent prison stay. Id.

§ 501.014(e); In re Hart, 351 S.W.3d 71, 76 (Tex. App.—Texarkana 2011, no

pet.).

         Given that Roberts remains in TDCJ custody while on parole and that the

trial court’s order would still be effective to collect court costs from Roberts’s

inmate trust account should he return to prison, we hold that the issue is not

moot; therefore, we have jurisdiction to decide the issue.        See Meeker, 317

S.W.3d at 759.

         We review a trial court’s decision to deny a motion to modify a withdrawal

order for an abuse of discretion. Malone v. State, Nos. 02-10-00383-CV, 02–10–

00384–CV, 02–10–00385–CV, 02–10–00386–CV, 02–10–00387–CV, 02–10–

00388–CV, 02–10–00389–CV, 02–10–00390–CV, 2012 WL 579472, at *1 (Tex.

App.—Fort Worth Feb. 23, 2012, pet. denied) (mem. op. on reh’g). A trial court

abuses its discretion if it acts without reference to any guiding rules or principles,

that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,


                                          4
614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A trial

court also abuses its discretion by ruling without supporting evidence.      Ford

Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).           But an abuse of

discretion does not occur when the trial court bases its decision on conflicting

evidence and some evidence of substantive and probative character supports its

decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru

v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

      Before a trial court can require a defendant to repay court-appointed

attorney’s fees, it must first determine whether the defendant has the financial

resources and the ability to pay. Tex. Code Crim. Proc. Ann. art. 26.05(g) (West

Supp. 2012); Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010). “A

defendant who is determined by the court to be indigent is presumed to remain

indigent for the remainder of the proceedings in the case unless a material

change in the defendant’s financial circumstances occurs.”      Tex. Code Crim.

Proc. Ann. art. 26.04(p) (West Supp. 2012). When the trial court requires an

indigent defendant to pay court-appointed attorney’s fees in violation of article

26.05(g), the appellate court should modify the withdrawal order by removing the

attorney’s fees. See Mayer, 309 S.W.3d at 557.

      Nothing in the record indicates that Roberts’s financial resources changed

during the pendency of the trial court’s proceedings. Thus, we hold that the trial

court abused its discretion by requiring Roberts to pay court-appointed attorney’s

fees. See id. at 556.


                                        5
      Accordingly, we modify the trial court’s withdrawal order to delete the

requirement that Roberts pay court-appointed attorney’s fees and affirm the order

as modified. Tex. R. App. P. 43.2(b).



                                                 BOB MCCOY
                                                 JUSTICE


PANEL: LIVINGSTON, C.J.; DAUPHINOT and MCCOY, JJ.

DELIVERED: February 7, 2013




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