                                        NO. 07-12-0131-CV

                                  IN THE COURT OF APPEALS

                          FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL A

                                       MAY 14, 2012
                              ______________________________


                           WESLEY WREN MASSEY, APPELLANT

                                                   V.

                          IRENE GONZALES MASSEY, APPELLEE1


                           _________________________________

                 FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                     NO. B36869-0910; HONORABLE ED SELF, JUDGE

                             _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                  ABATEMENT AND REMAND


        Appellant, Wesley Wren Massey, an inmate proceeding pro se and in forma

pauperis, appeals the trial court's entry of an Order to Withdraw Funds, entered on

March 16, 2012. That order, which directs the Texas Department of Criminal Justice to

withhold from his inmate account the sum of $231 for "court costs, fees and/or fines

and/or restitution" related to an underlying proceeding styled In the Matter of the


1
 We recognize that Irene Gonzales Massey is not a party to this proceeding. The real party in interest in
the contested order is Carla Cannon, in her capacity as Hale County District Clerk.
Marriage of Wesley Wren Massey and Irene Gonzales Massey, was apparently entered

sua sponte and without notice or hearing.2 The Order to Withdraw Funds does not

contain an attached Bill of Costs or other explanation as to what the withholding amount

was for or how the dollar amount was derived. While only a few documents have been

filed to date in this appeal, one of those documents, an Order of Dismissal, does assess

costs of court against Appellant. It does not, however, recite the amount of those costs.


                    Orders to Withdraw Inmate Funds and Due Process


        In Harrell v. State, 286 S.W.3d 315 (Tex. 2009), the Texas Supreme Court held

that a withdrawal order directing prison officials to withdraw money from an inmate

account pursuant to section 501.014(e) does not violate due process and is, therefore,

constitutional when the inmate has "received some measure of due process." Id. at

320. In determining whether Harrell was accorded constitutional due process, 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).3              The Court concluded that because Harrell had

received notice of the withdrawal (a copy of the withdrawal order) and an opportunity to

contest the dollar amount and statutory basis of the withdrawal (a motion to rescind or

modify the withdrawal order subsequently filed by Harrell),4 he received all that due


2
 Although the statutory basis for the Order to Withdraw Funds was not recited in the order, we presume
the trial court was attempting to order the withdrawal of funds from an inmate's account pursuant to Tex.
Gov't Code Ann. § 501.014(e) (West Supp. 2011).
3
 The three Eldridge factors 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.
4
 The trial court denied Harrell's Motion to Rescind. See Harrell v. State, Nos. 07-06-0469-CR, 07-06-
0470-CR, 2007 Tex. App. LEXIS 6416, at *2 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315
(Tex. 2009).
                                                    2
process required.    Id. at 321.   The Court also added that neither notice nor an

opportunity to be heard need occur before the issuance of a withdrawal order. Id. This

Court has interpreted Harrell as saying that due process requires that an inmate have

an opportunity to contest the dollar amount and statutory basis of the withdrawal by way

of a motion to modify, correct or rescind the withdrawal order. See Snelson v. State,

326 S.W.3d 754, 756 (Tex.App.--Amarillo 2010, no pet.); Williams v. State, 322 S.W.3d

301 (Tex.App.--Amarillo 2010, no pet.); and Bryant v. State, No. 07-10-00358-CV, 2010

Tex. App. LEXIS 8059, at *4-5 (Tex.App.--Amarillo Oct. 5, 2010, no pet.) (mem. op.).


      The limited documents before this Court do not demonstrate whether Appellant

has had the opportunity to challenge the amount assessed and the statutory basis for

that amount, which are the principal components supporting a withdrawal order. At this

stage of the proceeding, this Court is unable to evaluate whether Appellant has received

all that due process requires. Consequently, we sua sponte abate this appeal for 180

days and remand the cause to the trial court to give Appellant an opportunity to file a

challenge to the withdrawal order and develop a record for meaningful review.


      Upon remand, Appellant is entitled to file a motion to modify, correct or rescind

the withdrawal order, present the motion to the trial court and have it considered by the

trial court by whatever means necessary.


      Should Appellant challenge the withdrawal order, any ruling resulting from that

challenge shall be included in either the clerk's record or a supplemental clerk's record

to be filed with the Clerk of this Court on or before November 30, 2012. Should the

period of abatement expire without any action being taken by Appellant, this appeal will

be reinstated and dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).
                                           3
It is so ordered.


                        Per Curiam




                    4
