

NO. 07-11-0052-CV
 
IN THE COURT OF APPEALS
 
FOR THE SEVENTH DISTRICT OF TEXAS
 
AT AMARILLO
 
PANEL C
 
FEBRUARY 25, 2011
 
______________________________
 
 
IN RE CHARLES BRYANT, RELATOR
 
_______________________________
 
ORIGINAL
PROCEEDING
ARISING
OUT OF PROCEEDINGS BEFORE THE 47TH thDISTRICT COURT 646646464DISTRICT COURT OF RANDALL COUNTY;  NO. 14,621-A,
HONORABLE ABE LOPEZ, JUDGE PRESIDING
______________________________
 
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
            By this
original proceeding, Relator, Charles Bryant, an inmate proceeding pro se and
in forma pauperis, requests that we direct the Honorable Abe Lopez[1]
to rescind or dismiss an Order to
Withdraw Inmate Funds signed on April 26, 2010.  For reasons expressed herein, we deny
Relator's request for mandamus relief.

Background
            In
2003, in cause number
14,621-A, Relator was convicted of one
count of indecency with a child by exposure and sentenced to ten years
confinement and one count of indecency with a child by contact and sentenced to
twenty years confinement.[2]  Relator was also assessed a fine of $2,000.  More than six years later, on April
26, 2010, a document entitled Order to
Withdraw Inmate Funds (Pursuant to TEX. GOV’T. CODE,
Sec. 501.014(e))[3]
was signed and entered in the original criminal cause number.  By that withdrawal notification, the trial
court directed the Institutional Division of the Texas Department of Criminal
Justice to withhold the amount of $2,533 from Relator's
inmate account.  On July 6, 2010, Relator
filed his Motion to Reverse and Rescind
Order to Pay Court Cost, Fees, and/or Fines in the trial court challenging
the withdrawal notification.  When Relator
did not receive a response to his July 6 motion, he filed a notice of appeal on
September 10, 2010.  The appeal was
assigned cause number 07-10-00358-CV.
By order dated October 5, 2010, this Court concluded that no
appealable order had been entered on Relator's pending motion sufficient to
invoke this Court's jurisdiction and found the notice of appeal to be
premature. See Bryant v. State, No.
07-10-00358-CV, 2010 Tex. App.  LEXIS
(Tex.App.--Amarillo Oct. 5, 2010, no pet.).  Relying on Harrell v. State, 286 S.W.3d 315 (Tex. 2009), the appeal was abated for ninety days to allow Relator time
to (1) present his motion to the trial court; (2) schedule any necessary
hearing; and (3) obtain from the trial court an 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.).
            The
deadline set by this Court's order of October 5, 2010 lapsed on January 3,
2011.  On January 18, 2011, Relator
requested information pertaining to the status of his appeal.  That request prompted the Clerk of this Court
to make an inquiry to the Randall County District Clerk, as to the developments
in trial court cause number 14,621-A since October 5, 2010. The inquiry
revealed that no action had been taken by Appellant, nor had any new orders
been entered by the trial court.
            This
Court then notified Relator by letter dated January 20, 2011, that no
appealable order had been entered and directed him to show cause on or before
February 4, 2011, why that appeal should not be dismissed for want of
jurisdiction.  Tex. R. App. P. 42.3(a)
and (b).  In response, Relator filed his Motion for Leave to File a Petition for Writ
of Mandamus[4]
together with a Petition for Writ of
Mandamus seeking to compel this Court to direct the Honorable Abe Lopez to
rescind the withdrawal notification authorizing funds to be drawn from his
inmate account. 
Mandamus Standard of Review
Mandamus relief is an extraordinary remedy.  In re Southwestern Bell Telephone Co.,
L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding).  In order
to be entitled to relief by mandamus, the relator
must meet two basic requirements: (1) he must show that the trial court clearly
abused its discretion, and (2) he must show that he has no adequate remedy by
appeal.  In re Ford Motor Co., 988 S.W.2d 714, 718 (Tex. 1998) (orig.
proceeding); Walker v. Packer, 827
S.W.2d 833, 840-44 (Tex. 1992) (orig. proceeding).  "Mandamus
issues only to correct a clear abuse of discretion or the violation of a duty imposed
by law when there is no other adequate remedy by law.@  Walker, 827 S.W.2d at 839 (quoting Johnson
v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig.
proceeding)).  As it pertains to the
failure or refusal of a trial court to hear and rule upon a pending motion, in
order to establish an abuse of discretion, a relator
must satisfy three requirements: (1) a legal duty to perform; (2) a demand for
performance; and (3) a refusal to act.  Stoner v. Massey, 586 S.W.2d 843, 846 (Tex. 1979).  


 
Analysis
            Relator
argues due process violations in this mandamus proceeding.  By our order of October 5, 2010, this Court
gave Relator the opportunity to address his due process concerns to the trial
court as outlined in Harrell.  See Bryant, 2010 Tex. App. LEXIS 8059, at *5.  Because Relator has not requested a hearing
on his motion to rescind or review the withdrawal notification (a demand for
performance), and because there is no evidence that the trial court has refused
to act, he has failed to show that the trial court abused its discretion.  Furthermore, if and when the trial court does
rule on his pending motion, Relator still has an adequate remedy by
appeal.  Because mandamus will not lie when
the trial court has not abused its discretion or when an adequate remedy by
appeal exists, Relator has failed to demonstrate entitlement to mandamus relief.  
Moreover, of the $2,533 authorized
by the contested withdrawal notification, $2,000 is for the fine imposed by the
Court and the remaining $533 is for costs and fees.[5]  Although an appellant may not be ordered to
reimburse court-appointed attorney's fees without evidence of an ability to
pay, Mayer v. State, 309 S.W.3d 552
(Tex.Crim.App. 2010), fines and legislatively mandated fees and costs[6]
may be withdrawn from an inmate's account without regard to his ability to pay.  Armstrong
v. State, 320 S.W.3d 479, 482-83 (Tex.App.--Amarillo 2010, pet. granted) (Pirtle,
J., concurring).  Here, Relator has not
attacked the statutory basis of any cost or fee assessed. 
Consequently, Relator's Petition for Writ of Mandamus is denied.     
 
                                                                                      Per Curiam




[1]Retired
Judge, sitting by assignment.   See Tex.
Gov't Code Ann. § 75.002(a)(3) (West 2005).  Because Judge Lopez was sitting by assignment
when the questioned withdrawal notification was signed, and because Relator
complains about the trial court's failure to rule upon his pending Motion to Reverse and Rescind Order to Pay
Court Cost, Fees, and/or Fines, his Petition
for Mandamus should have been directed to the Honorable Dan Schaap, the
presiding judge of the 47th District Court, Randall County,
Texas.   


[2]Tex. Penal Code Ann. § 21.11(a) (West Supp. 2010).
 


[3]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) (West Supp. 2010), 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 §
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 the
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.
 


[4]A
motion for leave is not required to file a Petition for Writ of Mandamus.  That motion is, however, rendered moot by
this opinion.


[5]Relator was not ordered to reimburse any fees for
court-appointed counsel.
 


[6]See, e.g., Tex. Alco.
Bev. Code Ann. §
106.12 (West 2007); Tex. Bus. & Com. Code Ann. § 3.506 (West Supp. 2010);
Tex. Bus. Org. Code Ann. § 10.365 (West Supp. 2010); Tex. Code Crim.
Proc. Ann. arts. 17.42, 17.43, 17.441, 37.073, 42.037, 42.12, 42.22,
45.0216, 45.026, 45.041, 45.051, 45.055, 45.0511(c-1), 45.0511(f)(1 - 2), 45.052, 45.203, 62.353, 102.001 - 102.072,
103.0031 (West 2006 & Supp. 2010); Tex. Edu. Code
Ann. §37.011 (West
Supp. 2010); Tex. Fam. Code Ann. §§
8.262, 8.267, 8.302, 8.303, 45.106, 53.03, 54.032, 54.0411, 54.0461, 54.0462,
54.061, 81.003, 108.006, 110.002, 110.004, 110.005, 158.319, 158.403, 158.503,
160.762, 232.013 (West 2006, 2008 & Supp. 2010); Tex. Gov't Code Ann. §§ 25.0593, 25.0594,
25.1572, 25.2223, 30.00014, 30.00147, 41.258, 51.601,  51.702 - 51,703, 54.313, 54.403,54.745,
54.663, 54.913, 54.983, 54.954, 54.1116, 76.015, 82.0361, 102.001 - 103.033,
411.081 (West 2005 & Supp. 2010); Tex. Health & Safety Code Ann. §§ 161.255, 469.004,
821.023 (West  2010); Tex. Hum. Res. Code Ann. §
152.0522 (West 2001); Tex. Local Gov't Code Ann. §§
118.131, 132.002, 132.003, 133.101 - 133.154, 191.007 (West 2008 & Supp.
2010); Tex. Parks and Wildlife Code Ann. §§
12.110, 12.308 (West Supp. 2010); Tex. Transp. Code Ann. §§ 284.2031, 521.026,
521.048, 542.403, 542.407, 545.412, 548.605, 601.263, 706.006 (West 1999, 2007
& Supp. 2010) (not intended as an exhaustive list).  


