                                                                          FILED IN COURT OF APPEALS
                               IN   THE    COURT   OF   APPEALS
                              TWELFTH      DISTRICT     OF    TEXAS
                                                                            12th Court of Appeals District
                                          TYLER,   TEXAS




                                    No.     12-1400016-CV

                                                                            CATHY S. LUS

                                      JUAN    ENRIQUEZ,
                                               Plaintiff-Appellant,



                                RICK       THALER,    ET   AL.,
                                               Defendants-Appellees.


     On Appeal From the 3rd District Court, Anderson County,
                        Texas,       Trial    Court     No.    3-41887
            Honorable Pam Foster Fletcher, Judge Presiding



                        APPELLANT'S PLEA TO JURISDICTION


TO THE HONORABLE JUDGES OF SAID COURT:

     Juan Enriquez, Appellant, herein files his plea to the
jurisdiction of this Court to hear this appeal under its present

posture,    averring as grounds the following:

                  I.     NO   FINAL       JUDGMENT    BEFORE        THE   COURT


     The Court does not have a final judgment which concludes

all of the claims raised by Appellant.

     On     December 11,        2013,      based on Appellant's funds in his

inmate trust account on February 7,                     2012,       the court below

entered    an   Order   of    Dismissal       in   which      the   court   ordered     the


Texas Department of Criminal Justice to withdraw money from

Appellant's trust account equal to the lesser of "1) 20 percent

of the preceding six months deposits to the inmate's trust account
or 2) the total amount of court fees and costs charged to the
inmate in this cause".        (ROA 133).

     On December 20, 2013,       the Appellant filed his Petitioner's

Motion to Vacate Judgment, contesting, inter alia, the withdrawal

order because "[p]ayments must be based on the amount placed in
the trust fund 6 months prior to February 7, 2012, [the date of
the indigency affidavit] not six months prior to the payment
order. "   (ROA 139).

     On April 8, 2014, the Anderson County District Clerk,

presented the costs of this case.             (ROA 141-142).

     The record reflects that notice of appeal was filed prior
to the court having acted on the motion to vacate judgment and
that the Anderson District Clerk did not enter costs into the
record until long after notice of appeal was filed.

     It is apparent from the record that the Order of Dismissal
entered on December 11, 2013, does not dispose of all claims
presnted to the trial court and/or raised on appeal.

                        II.   PROCESS   DUE    NOT GIVEN

     With respect to withdrawal orders, the court in Webb v.
State, 324 S.W.3d 229 (Tex.App. - Amarillo 2010), set forth the
process due when such orders are entered:

     In reversing this Court and rendering judgment affirming
     the trial court's order denying Harrel's motion to
     recind, the Supreme Court held that due process entitles
     an inmate to receive notice and an opportunity to be heard,
     even though those requirments            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 (the motion to rescind), he had received all the due
    process required.
        On    the    limited   record   before     this   court,   we   are   unable   to
        determine if Webb has been given all that due process
        requires.  Specifically, we are unable to determine whether
        Webb has been (1) provided the necessary underlying
        documentation, and (2 afforded an adequate opportunity
        "to compare the amounts assessed by the trial dourt [in
        the underlying criminal proceedings] to the amount[s]
        withdrawn and alert the court to any alleged errors."
        See id.  In that respect, we note that the, "risk of an
        erroneous deprivation of [Webb's] interest through the
        procedures used" in this particular case is apparent on the
        face    of    the   record.


Webb,    at    232.

        Here,       the district court gave notice of its withdrawal

order via its Order of Dismissal.                   Also,    Appellant was provided

-afWgans to challenge the order via a motion to vacate judgment.

However,       the documentation of costs was not provided to Appellant

until after notice of appeal was filed,                     so he could not alert the

court to the variance between what                  the statute allowed to be

withdrawn from his trust account and what was withdrawn.                           Thus,

the record reflects "risk of an erroneous deprivation of
                                                                   A
Appellant's interest through the procedure used by the lower

court to obtain money from the Appellant's prison trust fund

account.


                            III.   NOTICE   OF   APPEAL   PREMATURE


        Because the trial court has not entered an appealable

order granting or denying the motion to vacate judgment wherein

the court could have confirmed,                  modified,   corrected,       or

rescinded the prison withdrawal notification, the Notice of

Appeal inthis case was premature.
     WHEREFORE,    PREMISES CONSIDERED,    Appellant moves the Court

to abate this appeal and to direct the lower court,          after

evidentiary hearing to develop the record,        to clarify its Order

of Dismissal pursuant to which funds were withdrawn from

Appellant's prison account without the process due to Appellant.


                                    Respectfully submitted,




                                           Enriqi><z
                                      T27122
                                    TDCJ-Michael
                                    2664 FM 2054
                                    Tennessee Colony,      TX 751


                        Certificate   of   Service

     I, Juan Enriqeuz, certify that a correct copy of the foregoing
plea to jurisdiction was served by placing same in the United
States mail, postage prepaid, on April 30, 2015, addressed to
Briana M. Webb, Assistant Attorney General,          P. O. Box 12548,
Capitol Station,   Austin,   TX 78711.




                     Mailbox Filing Verification

     I, Juan Enriquez, declare under penalty of perjury, that the
foregoing Appellant's Plea to Jurisdiciton was filed on April 30,
2015, by placing same in the Institutional Mail System, postage
prepaid, first class mail, addressed to Cathy S. Lusk, Clerk,
Twelfth Court of Appeals, 1517 West Front Street, Suite 354,
Tyler, TX 75702.    Executed on April 30, 2015.
