
                                          NO. 07-10-0258-CV

                                       IN THE COURT OF APPEALS

                                  FOR THE SEVENTH DISTRICT OF TEXAS

                                             AT AMARILLO

                                               PANEL A

                                          DECEMBER 17, 2010

                                    ______________________________


                                  MANUEL ORTIZ MALDONADO, APPELLANT

                                                  V.

                                     THE STATE OF TEXAS, APPELLEE

                                  _________________________________

                           FROM THE 47TH DISTRICT COURT OF RANDALL COUNTY;

                             NO. 18,800-A; HONORABLE DAN SCHAAP, JUDGE[1]

                                   _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.

                                               OPINION


      This is an appeal from an order denying  Manuel  Ortiz  Maldonado’s  contest  of  a  withdrawal
notification issued pursuant to section 501.014(e) of the Texas Government Code.  Finding  the  trial
court erred in not correcting the withdrawal notification at issue, we reverse and render.


                                              Background


      On June 13, 2007, Appellant,  Manuel  Ortiz  Maldonado,  was  convicted  of  indecency  with  a
child.[2]  Appellant's punishment was assessed at five years confinement and a fine of  $1,500.   The
summary portion of the judgment entered by  the  trial  court  reflects  "Costs:  $____,"  while  the
narrative portion of the judgment orders that "the State of Texas do have and recover of  [Appellant]
all court costs in this prosecution expended for which let execution issue."  The dollar  amount  and
statutory basis of the court costs was not otherwise specified in the  written  judgment.   Appellant
did not seek a direct review of that judgment.


      On May 4, 2010, the Randall County District Clerk  prepared  a  Bill  of  Costs  reflecting  an
amount due of $2,241.50, which sum included the  $1,500  fine,  $400  in  court-appointed  attorney's
fees, and $341.50 in miscellaneous court costs.  Almost three years after the judgment  was  entered,
using the original underlying criminal cause number, the  trial  court  signed  a  document  entitled
Order to Withdraw Funds[3] directing the Texas Department of Criminal Justice to withdraw the sum  of
$2,241.50 from Appellant's "Inmate Trust Account."[4]  On June 24, 2010,  Appellant  filed  a  motion
contesting the withdrawal notification, contending that his "due process rights" were being  violated
by this collection process.  On or before June 28, 2010, by handwritten  notation  upon  the  Clerk's
notification to the trial court of the filing of Appellant's  motion,  the  trial  court  denied  the
request sua sponte.   Appellant now appeals that denial.


                                           Appealable Order

      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[5] 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),[6] he received all  that  due
process required.  Id. at 321.  The Court added that neither notice nor an opportunity  to  be  heard
need occur before the issuance of  a  withdrawal  notification.   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 notification.  Snelson v. State, No. 07-10-0259-CV, 2010  Tex.App.  LEXIS  9016,  at  *5-6
(Tex.App.--Amarillo Nov. 10, 2010, no pet. h.); Bryant v. State,  No.  07-10-0358-CV,  2010  Tex.App.
LEXIS 8059, at *4-5 (Tex.App.--Amarillo Oct. 5, 2010, no pet.); Williams v.  State,  322  S.W.3d  301
(Tex.App.--Amarillo 2010, no pet.).  The trial court's  disposition  of  such  a  motion  creates  an
appealable order. See Ramirez v. State, 318 S.W.3d 906, 908 (Tex.App.--Waco 2010, no  pet.)  (holding
that "only when [the withdrawal notification is] properly challenged and denied relief  is  there  an
order that is final from which the inmate can appeal").


                                          Standard of Review


      We review  a  trial  court's  decision  whether  to  deny  a  motion  contesting  a  withdrawal
notification under an abuse of discretion standard.  See Canty v.  State,  No.  12-08-00257-CV,  2009
Tex.App. LEXIS 2715, at *3-4, (Tex.App.-Tyler April 15, 2009, no pet.) (holding that a trial  court's
decision to hold a civil expunction proceeding is subject to review  under  an  abuse  of  discretion
standard).  A trial court abuses its discretion when it acts "without reference to any guiding  rules
and principles."  Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d 28, 31 (Tex.  2010)  (quoting
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238,  241-42  (Tex.  1985);  Howell  v.  State,  175
S.W.3d 786, 792 (Tex.Crim.App. 2005); Montgomery v. State, 810 S.W.2d 372, 380 (Tex.Crim.App.  1990).
Furthermore, a trial court abuses  its  discretion  if  "it  reaches  a  decision  so  arbitrary  and
unreasonable as to amount to a clear and prejudicial error of  law."   Johnson  v.  Fourth  Court  of
Appeals, 700 S.W.2d 916, 917 (Tex. 1985).


                                             Court Costs


      A certified bill of costs imposes an obligation upon a criminal defendant to pay  court  costs,
irrespective of whether or not that bill is incorporated by  reference  into  the  written  judgment.
See generally Tex. Code Crim. Proc. Ann. arts. 103.001 and 103.003 (West 2006); See also  Tex.  Gov't
Code Ann., §§ 102.001 - 103.033. (West 2006 and Supp. 2010).  Where court  costs  are  imposed  as  a
matter of legislative directive, they do not need  to  be  included  in  the  oral  pronouncement  of
sentence or the written judgment in order to be imposed upon a  convicted  defendant.   See  Weir  v.
State, 278 S.W.3d 364, 367 (Tex.Crim.App. 2009) (holding that because  legislatively  mandated  court
costs are not punitive, they did not have to be included in the oral pronouncement of sentence  as  a
precondition to their inclusion in the trial court's written judgment); Smith v.  State,  No.  07-09-
0009-CR, 2010 Tex.App. LEXIS 3846, at *21 (Tex.App.--Amarillo May  20,  2010,  pet.  ref'd)  (holding
that a precise dollar amount of court costs did not have to be specified in  the  oral  pronouncement
of sentence or the written judgment as a precondition to their  inclusion  in  the  clerk's  bill  of
costs).


                                   Court-Appointed Attorney's Fees


      Pursuant to article 26.05(g) of the  Texas  Code  of  Criminal  Procedure,  if  a  trial  court
determines that a defendant has financial resources that enable him to repay, in whole  or  in  part,
the costs of legal services provided by a court-appointed attorney, the court has authority to  order
a convicted defendant to pay "as court costs the amount that it finds the defendant is able to  pay."
 See Tex.  Code  Crim.  Proc.  Ann.  art.  26.05(g)  (West  Supp.  2010).   Without  record  evidence
demonstrating a defendant's financial resources to offset the costs of legal services, a trial  court
errs if it orders reimbursement of court-appointed attorney's fees.  Mayer v. State, 309  S.W.3d  552
(Tex.Crim.App. 2010).  Unless a material change in a  criminal  defendant's  financial  resources  is
established by competent legal evidence, once that defendant has been found to  be  indigent,  he  is
presumed to remain indigent for the remainder of the proceedings.  Tex. Code Crim.  Proc.  Ann.  art.
26.04(p) (West Supp. 2010); Mayer, 309 S.W.3d at 557.

                                               Analysis

      As noted, the Bill of Costs in the record includes $400  in  court-appointed  attorney's  fees,
but the record does not  contain  a  determination  or  finding  that  Appellant  had  any  financial
resources or was "able to pay" any amount of attorney's fees.  What the record does reflect is  that,
at the time the original judgment of conviction was entered, Appellant  was  indigent  and  qualified
for court-appointed counsel.  Accordingly, we must presume that on June  10,  2010,  when  the  trial
court signed the withdrawal notification, Appellant's financial status had not changed.   Just  as  a
trial court errs  by  ordering  reimbursement  of  court-appointed  attorney's  fees  without  record
evidence demonstrating the defendant has an ability to repay the fees, see Mayer, 309 S.W.3d at  557,
we find the trial court here abused its discretion by summarily denying Appellant's challenge to  the
withdrawal notification authorizing  withdrawal  of  funds  from  his  inmate  account  to  reimburse
attorney's fees in the absence of a judicial finding required by article 26.05(g).

                                              Conclusion


      Accordingly, we reverse the trial court's order denying Appellant's motion to  contest  and  we
render judgment granting the motion to contest, thereby directing the entry of an Amended  Withdrawal
Notification Pursuant to Section 501.014(e), deleting the attorney's fees of $400.  We further  order
that a copy of the Amended Withdrawal Notification be delivered to the Institutional Division of  the
Texas Department of Criminal Justice.


                                          Patrick A. Pirtle
                         Justice
-----------------------
[1]Hon. Abe Lopez, Retired Judge sitting by assignment in the 47th District Court of Randall County,
Texas.  See Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005).

[2]See Tex. Penal Code Ann. § 21.11(a)(1) (West Supp. 2010).  An offense under subsection  (a)(1)  of
§ 21.11 is a felony of the second degree, punishable by imprisonment for any term of  not  more  than
20 years or less than 2 years, and by a fine not to exceed $10,000.   See  Tex.  Penal  Code  Ann.  §
12.33 (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 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  withdrawal
from an inmate's 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 ordering the payment of a sum falling within  at
least one of the six priority categories listed in the statute.

[4]Several courts, including this Court, have 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
(West Supp. 2010)).  Accordingly, they are simply inmate accounts.

[5]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).

[6]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. 2008).

