                                 NO. 07-10-0259-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                      PANEL A

                                NOVEMBER 10, 2010

                        ______________________________


                   RICHARD DEWAYNE SNELSON, APPELLANT

                                          V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________


            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

               NO. 16,447-B; HONORABLE JOHN B. BOARD , JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                      OPINION


      On March 9, 2005, Appellant was convicted of possession of a controlled

substance with intent to deliver in a drug-free zone, enhanced, and sentenced to sixty

years confinement. Although the judgment of conviction recited "that the State of Texas

do have and recover of the said defendant all costs in this proceeding incurred," the
summary portion of the judgment left blank the amount of those costs. That judgment

became final and mandate issued on October 5, 2007.


         More than two years later, using the same cause number, the trial court signed

and entered an Order to Withdraw Inmate Funds (Pursuant to TX. GOV'T. CODE, Sec.

501.014(c)). Appellant attempts to appeal this "order." 1 Appellant's notice of appeal

also asked the trial court to rescind or modify the withdrawal notification. On April 12,

2010, Appellant filed a Second Motion To The Court Requesting It To Rescind Its Order

Based Upon No Subject Matter Jurisdiction. Finding that the withdrawal notification is

not an appealable order, we abate this appeal pending the trial court's disposition of

Appellant's request for rescission or modification.


                                               Background


        By the withdrawal notification at issue, the trial court directed the Texas

Department of Criminal Justice Institutional Division to withhold from Appellant's




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. 2010), describes the process as a "notification by a court" directing prison
officials to withdraw sums from an inmate's 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 the
withdrawal from an inmate account, 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 actually ordering the payment of a sum certain, falling within at
least one of the six priority categories listed in the statute.


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account 2 the sum of $2,228.50, consisting of $1,950 for attorney's fees 3 and other

miscellaneous court costs. A Bill of Costs, generated the same date that the withdrawal

notification was entered, was attached.


        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

account pursuant to § 501.014(e) is a civil matter 4 akin to a garnishment action or an

action to obtain a turnover order. Harrell, 286 S.W.3d at 317-19. Discussing the due

process accorded to the appellant, the Court balanced the three factors discussed in

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and found

that Harrell had "already received some measure of due process." Harrell, 286 S.W.3d

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

Court concluded that because Harrell had received notice of the withdrawal (a copy of

the withdrawal notification) and an opportunity to contest the dollar amount and

statutory basis of the withdrawal (a motion to rescind or modify the withdrawal

notification), he received all that due process required. Id. at 321. The Court added




2
 Several courts, including this Court, have frequently referred to these inmate accounts as "trust"
accounts. The term "trust" has been removed from their statutory references. Act of May 11, 1989, 71st
Leg., R.S., ch. 212, § 2.01 1989 Tex. Gen. Laws 918, 958, amended by, Act of May 17, 1999, 76th Leg.,
R.S., ch. 326, §1 1999 Tex. Gen. Laws 1235, 1236 (current version at Tex. Gov't Code Ann. § 501.014
(Vernon Supp. 2010)). Accordingly, they are simply inmate accounts.
3
 Attorney's fees for court-appointed counsel are not properly includable as a cost of court without a
judicial determination that the defendant has financial resources that enable him to offset in part or in
whole the costs of the legal services provided. Tex. Code Crim. Proc. Ann. art. 26.05(g) (Vernon 2010);
Mayer v. State, 309 S.W.3d 552, 556 (Tex.Crim.App. 2010).
4
 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 are not a criminal
matter).


                                                   3
that neither notice nor an opportunity to be heard need occur before the funds are

withdrawn. Id.


       By his pro se brief, Appellant asserts the withdrawal notification violates his due

process rights, attacks the notification as void due to lack of subject matter jurisdiction,

and contends that if the notification is valid, then section 501.014(e) of the Texas

Government Code is unconstitutional. By its brief, the State questions the finality of the

withdrawal notification asserting that no final, appealable order has been entered.


       We agree with the State that no final, appealable order has been entered by the

trial court. Because the trial court has yet to rule on Appellant's motion to rescind or

modify the withdrawal notification, we are unable to determine if Appellant has been

given all that due process requires and, accordingly, we find Appellant's notice of appeal

to be premature. See Tex. R. App. P. 27.1(a) and 27.2.


       Accordingly, this Court abates this appeal for 90 days from the date of this order

to allow Appellant time to take such action as is necessary to (1) present his motion to

the trial court; (2) schedule any necessary hearing; and (3) obtain from the trial court a

final, appealable order addressing that motion. See Iacono v. Lyons, 6 S.W.3d 715

(Tex.App.--Houston [1st Dist.] 1999, no pet.).


       If the trial court enters an appealable order addressing Appellant's motion to

rescind or modify the withdrawal notification, all appellate briefing deadlines shall

proceed in accordance with Rule 38.6 of the Texas Rules of Appellate Procedure. If the

trial court does not enter an appealable order within the time frame allowed, this appeal

will be subject to dismissal or further abatement. See Ramirez v. State, 318 S.W.3d

                                             4
906 (Tex.App.--Waco 2010, no pet.) (dismissing appeal from a withdrawal notification

after finding there was no final, appealable order).


       It is so ordered.


                                                 Per Curiam




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