
NO. 07-06-0284-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

FEBRUARY 28, 2008
______________________________

ROBERT CONWAY, APPELLANT

V.

RICHARD THOMPSON, ET AL., APPELLEES
_________________________________

FROM THE 87TH DISTRICT COURT OF ANDERSON COUNTY;

NO. 9991; HONORABLE DEBORAH OAKES EVANS, JUDGE
_______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Â Â Â Â Â Â Â Â Â Â Appellant Robert Conway appeals from the trial courtâs order dismissing his claims
with prejudice pursuant to a plea to the jurisdiction.  We reverse the dismissal.
Background
Â Â Â Â Â Â Â Â Â Â Conway, a prison inmate, filed a pro se and in forma pauperis  suit against Robert
Thompson III, Martina Cordell and Leslie Hazlewood, employees of the Texas Department
of Criminal Justice.  He alleged the defendants wrongfully confiscated his cowboy boots
and broke his word processor.
  His pleadings placed a âtangibleâ value of $270 on the
word processor and $125 on the boots.
Â Â Â Â Â Â Â Â Â Â After answering the suit, appellees filed a plea to the jurisdiction, asserting Conway
had failed to plead actual damages above the district courtâs minimum jurisdictional limit.
They argued that minimum jurisdictional limit is $500.  The trial court agreed, and
dismissed Conwayâs suit.  He appealed, and the appeal later was transferred from the
Twelfth Court of Appeals to this Court.
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Analysis
Â Â Â Â Â Â Â Â Â Â Through four points of error, Conway contends the trial court erred when it
dismissed his lawsuit based on appelleesâ plea to the jurisdiction, erred when it dismissed
his petition with prejudice,
 erred when it dismissed his suit without notice and erred when
it refused to make findings of fact and conclusions of law.
Standard of Review
Â Â Â Â Â Â Â Â Â Â In his arguments to this Court, Conway appears to urge an abuse of discretion
review.  However, we review a trial courtâs granting of a plea to the jurisdiction de novo.
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S.
1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); Levatte v. City of Wichita Falls, 144
S.W.3d 218, 222 (Tex.App.âFort Worth 2004, no pet.).   We will apply a de novo standard
of review to the trial courtâs dismissal of Conwayâs suit.
Minimum Amount in Controversy
Â Â Â Â Â Â Â Â Â Â When a defendant asserts that the amount in controversy is below the court's
jurisdictional limit, the plaintiff's pleadings are determinative unless the defendant
specifically alleges that the amount was pleaded merely as a sham for the purpose of
wrongfully obtaining jurisdiction, or the defendant can readily establish that the amount in
controversy is insufficient. Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554
(Tex. 2000).
 The phrase âamount in controversy,â in the jurisdictional context, means the
sum of money or the value of the thing originally sued for. Tune v. Tex. Depât of Public
Safety, 23 S.W.3d 358, 361 (Tex. 2000).  Conway originally sued for damages and
alternatively requested the return of his cowboy boots, which he valued at $125, and the
repair or replacement of his word processor, which he valued at $270.  Whether we
consider Conwayâs suit as one seeking damages or for other relief, we agree with
appellees that the amount in controversy, for our purpose here, is $395. 
Â 
Â Â Â Â Â Â Â Â Â Â Conway and appellees acknowledge the differing opinions among the courts of
appeals with regard to the minimum amount in controversy currently required to invoke the
jurisdiction of a district court.  Compare Chapa v. Spivey, 999 S.W.2d 833, 835-36
(Tex.App.âTyler 1999, no pet.) (minimum jurisdictional amount is still $500) with Arteaga
v. Jackson, 994 S.W.2d 342 (Tex.App.âTexarkana 1999, pet. denied) (as result of 1985
constitutional and statutory amendments, minimum jurisdictional amount was reduced to
$200.01).
  Our Supreme Court has taken note of the question but has not had occasion
to resolve it.  See, e.g., Dubai Petr. Co. v. Kazi, 12 S.W.3d 71, 75 n.4 (Tex. 2000) (noting
there may no longer be a jurisdictional minimum for district courts).  See also Sultan v.
Mathew, 178 S.W.3d 747,756 (Tex. 2005) (Hecht, J., dissenting) (also noting âwhether any
such limit remains [after the 1985 constitutional amendment] is an unresolved questionâ);
Smith v. Clary Corp., 917 S.W.2d 796, 799 n.3 (Tex. 1996) (per curiam) (referring to âopen
question whether district courts now have minimum jurisdictional amounts after the 1985
constitutional amendmentsâ). 
Â Â Â Â Â Â Â Â Â Â The damages Conway seeks are under $500.
  He filed his petition in the 87th
Judicial District Court, a court within the Twelfth Court of Appeals District.  The Twelfth
Court of Appeals has held that a district court's minimum jurisdictional limit is $500.  See
Chapa,Â 999 S.W.2d at 834.
Â Â Â Â Â Â Â Â Â Â We, however, have agreed with the courts that, focusing on the express  language
of the constitutional and statutory provisions addressing jurisdiction of the district courts,
hold the current minimum amount in controversy required for district court jurisdiction is
$200.01.  See Ramirez v. Dietz, No. 07-04-0108-CV, 2006 WL 507947 (Tex.App.âAmarillo
March 1, 2006, no pet.) (mem. op.) (citing Nelson v. U.S. Postal Service, No. 07-03-0050-CV, 2003 WL 22069558 (Tex.App.âAmarillo Sept. 5, 2003, no pet.) (mem. op.)). 
Â Â Â Â Â Â Â Â Â Â Appellees urge us to recognize that the trial court acted correctly based on Twelfth
Court of Appeals case law.  Conway responds that we must follow our own prior holdings,
and that appelleesâ remedy is to seek Supreme Court review.  Confronted with this clear
difference in the law as applied by the appellate court from which this case was transferred
and our own previous decisions, we agree with the view expressed in American Natâl Ins.
Co. v. International Bus. Machine Corp.,Â 933 S.W.2d 685, 687 (Tex.App.âSan Antonio
1996, writ denied).  The court there stated that in such a circumstance a transferee court
should not blindly apply either the transferring courtâs precedent or its own but instead
should reach its best conclusion as to what the law of the State of Texas is on the issue
before it.  Id.
  Having again examined the question, we will adhere to our previous
conclusion that the rationale set forth in Arteaga v. Jackson, 994 S.W.2d at 342, expresses
the law of our state on the minimum amount in controversy necessary to sustain jurisdiction
in the district courts, that is, that such amount is $200.01. 
Â Â Â Â Â Â Â Â Â Â Conway has plead actual damages in the amount of $395, an amount in excess of
the jurisdictional amount required for district court jurisdiction.  Accordingly, we conclude
the trial court erred in its conclusion it lacked subject matter jurisdiction over his suit.  We
sustain Conwayâs first issue.
Â Â Â Â Â Â Â Â Â Â Given our disposition of Conwayâs first issue, we do not reach his remaining issues. 
Tex. R. App. P. 47.1.  The judgment of the trial court is reversed, and the cause is
remanded for further proceedings.
Â 
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â James T. Campbell
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Justice  




Quinn, C.J., dissenting.  
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 






l style='margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;mso-pagination:widow-orphan'>Â 
AT
AMARILLO
Â 
PANEL
C
Â 
MAY 19, 2010
Â 
______________________________
Â 
Â 
BENNY
JOE PALOMO, APPELLANT
Â 
V.
Â 
THE
STATE OF TEXAS, APPELLEE
Â 
Â 
_________________________________
Â 
FROM
THE 181ST DISTRICT COURT OF RANDALL COUNTY;
Â 
NOS.
18,223-B, 18,368-B, & 18,369-B; HONORABLE JOHN B. BOARD, JUDGE
Â 
_______________________________
Â 
Before QUINN,
C.J., and HANCOCK and PIRTLE, JJ.
OPINION ON ABATEMENT
       On
February 25, 2010, in each referenced cause, pursuant to Â§ 501.014(e) of the Texas Government
Code, the trial court signed and entered an Order to Withdraw Inmate Funds.[1]Â  By
the withdrawal notifications entered in each cause, the trial court directed
the Texas Department of Criminal Justice Institutional Division to withhold the
following amounts: (1) $1,810.31 in cause number 18,223-B; (2) $616.50 in cause
number 18,368-B; and (3) $616.50 in cause number 18,369-B.Â  Appellant filed pro se notices of appeal on
May 5, 2010, challenging the withdrawal notifications.Â  While
each withdrawal notification contained the statement that "court costs,
fines and fees have been incurred as represented in the certified Bill of Cost/Judgment
attached hereto," none contained an attachment of any kind.Â  Furthermore, while the judgment entered in
each case provides that "the State of Texas do have and recover of said
[Appellant] all court costs in this prosecution expended . . . ," the
summary portion of each judgment leaves costs blank.
Â Â Â Â Â Â Â Â Â Â Â  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 trust account pursuant to Â§ 501.014(e) is a civil matter[2]
akin to a garnishment action or an action to obtain a turnover order.Â  Harrell, 286 S.W.3d at 317-19.Â  In determining whether Harrell was accorded
constitutional due process in that proceeding, the Court balanced three factors
discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), and noted that Harrell had "already
received some measure of due process."Â 
Harrell, 286
S.W.3d at 320.
Â Â Â Â Â Â Â Â Â Â Â  The
three Eldridge factors considered in Harrell 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.Â  The Court found that private
interest to be easily ascertainable--"the amount identified in a prior
court document", i.e., "the costs assessed when the convicting court
sentenced him."Â  Harrell, 286 S.W.3d at 320.Â  Regarding
the risk of erroneous deprivation, the Court identified the risk as modest
where withdrawal notifications under the statute are based on an amount
identified in a previous court document.Â 
See Tex. Gov't Code Ann. Â§
501.014(e)(1)-(6) (Vernon Supp. 2009).Â  The Court noted that "Harrell was . . .
notified of the costs assessed when the convicting court sentenced him"
and he was free to contest them at the time they were assessed. Harrell, 286 S.W.3d at
320.Â  However, the Court went on
to recognize there could be a greater risk of erroneous deprivation in
instances in which the amount in the withdrawal notification varied from the
amount in the underlying judgment or those instances where there were clerical
or other errors.Â  Id.Â  In assessing the final
factor, the Government's interest, the Court addressed the fiscal and
administrative burdens of added or alternative procedures and concluded that
the Texas Department of Criminal Justice would face expending more money than
it would collect if it were required to conform to "full-blown"
statutory garnishment requirements.Â  In
the Court's opinion, such a drawn-out procedure might subvert the Legislature's
goal of efficient cost-collection.Â  Id.
Harrell had
been convicted of drug charges in 1997 and 2003.Â  In 2006, the convicting trial court signed an
order authorizing the Texas Department of Criminal Justice Institutional
Division to withdraw funds from his inmate trust account to pay for court costs
and fees for appointed counsel.Â  Harrell
was provided with copies of the withdrawal notifications.Â  He then moved to rescind the withdrawal
notifications alleging denial of due process.Â 
His motion was denied, and his direct appeal to this Court was dismissed
for want of jurisdiction on the ground that no statutory mechanism was
available for appealing a withdrawal notification.Â  See
Harrell v. State, Nos. 07-06-0469-CR and 07-06-0470-CR, 2007 Tex. App.
LEXIS 6416, at *3 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex.
2008). 
Â Â Â Â Â Â Â Â Â Â Â  In reversing this Court and
rendering judgment affirming the trial court's order denying Harrell's motion to rescind, the Supreme Court held
that due process entitles an inmate to receive notice[3] and an
opportunity to be heard, even though those requirements might be accorded the
inmate after funds are withdrawn.Â  Harrell, 286 S.W.3d at
321.Â  It concluded that because
Harrell had received notice (a copy of the withdrawal
notification) and an opportunity
to be heard[4] (the
motion to rescind), he had received all that due process
required.Â  Id.Â  The Court added,
"[t]he Constitution does not require pre-withdrawal notice or a
comprehensive civil garnishment proceeding."Â  Id.
Â Â Â Â Â Â Â Â Â Â Â  Â On the limited record before this Court, we
are unable to determine if Appellant has been given all that due process
requires.Â  Specifically, we are unable to
determine whether Appellant has been (1) provided with the necessary underlying
documentation and (2) afforded an adequate opportunity "to compare the
amounts assessed by the trial court [in the underlying criminal proceedings] to
the amount[s] withdrawn and alert the court of any alleged errors."Â  Id.Â  Because the trial court has not entered
an appealable order either granting or denying a motion to confirm, modify,
correct, or rescind the prior withdrawal notification, we find Appellant's notices of appeal to be premature.Â  See Williams
v. State, __ S.W.3d __, Nos. 07-10-0091-CV, 07-10-0100-CV, and 07-10-0101,
2010 Tex. App. LEXIS, 2998, at *8-9, (Tex.App.--Amarillo April 22, 2010, no
pet. h.).
Â Â Â Â Â Â Â Â Â Â Â  Accordingly, this Court sua sponte abates this appeal for 180
days from the date of this order to allow Appellant time to take such action as
is necessary to (1) obtain the necessary documentation of the underlying court
order; (2) compare the underlying court order to the withdrawal notification;
(3) file an appropriate motion to modify, correct, or rescind the withdrawal
notification; (4) present that motion to the trial court; (5) schedule any
necessary hearing; and (6) obtain from the trial court a final appealable order
addressing that motion.Â  See Tex. R. App. P. 27.2.Â  See
also Iacono v. Lyons, 6 S.W.3d 715
(Tex.App.--Houston [1st Dist.] 1999, no pet.).Â 
All appellate timetables will begin to run from the date a final,
appealable order is signed.
Â Â Â Â Â Â Â Â Â Â Â  It is so ordered.
Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â  Per
Curiam
Â 



[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.Â  The controlling
statute, Tex. Gov't Code Ann. Â§
501.014(e) (Vernon Supp. 2009), 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."Â  See id. at Â§ 501.014(e)(1)-(6).Â 
See also Harrell v. State, 286
S.W.3d 315, 316, n.1 (Tex. 2009).Â  This
document is more akin to a judgment nisi.Â 
A judgment nisi, commonly used in bond forfeiture proceedings, is a
provisional judgment entered when an accused fails to appear for trial.Â  A judgment nisi triggers the issuance of a capias and it serves as notice of the
institution of a bond forfeiture proceeding.Â 
It is not final or absolute, but may become final.Â  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.Â  Id.Â  Similarly, a withdrawal
notification issued pursuant to Â§
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.Â 
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.
Â 


[2]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
is not a criminal matter).
Â 


[3]In
assessing the risk of erroneous deprivation of property, the Supreme Court in Harrell considered the risk to be
"modest" because notice under the statute is "based on an amount identified in a prior court document."Â  Harrell,
286 S.W.3d at 320 (emphasis added).Â 
The Court went on to comment that the risk would be minimized if the
trial court included a copy of the underlying order or judgment that assessed
costs when it issues a withdrawal notification.Â 
We wholeheartedly adopt the Supreme Court's recommendation in this
regard.Â  We express no opinion as to
whether a clerk issued bill of costs or a statement in an underlying court
document which merely assesses "costs of court" against the defendant
without stating the basis or amount of those costs constitutes adequate notice
for purposes of due process.Â  We further
note that the mere assessment of attorney fees does not make them collectable
through this process.Â  Under article
26.05(g) of the Texas Code of Criminal Procedure, the trial court has authority
to order reimbursement of appointed attorney fees only if the court makes a
fact-specific determination that a defendant has financial resources that
enable him to offset, in part or in whole, the costs of the legal services
provided.Â  See Tex. Code Crim. Proc. Ann. art.
26.05(g) (Vernon Supp. 2009).Â  See
also Mayer v. State, ___ S.W.3d ___, No. PD-0069-09, 2010 Tex. Crim. App.
LEXIS 100, at *11Â  (Tex.Crim.App.
March 24, 2010).


[4]While
the court of appeals's opinion is silent on whether a
hearing was held on Harrell's motion to rescind, Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex. App. LEXIS 6416, at *3 (Tex.App.--Amarillo,
Aug. 13, 2007), revÂd,
286 S.W.3d 315 (Tex. 2008), the trial court did enter a specific order denying
his motion to rescind the withdrawal notification.Â  We read the Supreme Court's opinion as
assuming that, by this process, Harrell was given "an opportunity to be
heard."Â  Harrell, 286 S.W.3d at 321.
Â 


