                                   NO. 07-10-0259-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                       PANEL A

                                  MAY 16, 2011
                         ______________________________


                    RICHARD DEWAYNE SNELSON, APPELLANT

                                           V.

                         THE STATE OF TEXAS, APPELLEE


                       _________________________________

            FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

                NO. 16,447-B; HONORABLE JOHN B. BOARD, JUDGE

                        _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                       OPINION


      This is an appeal from an order partially granting and partially denying

Appellant's motion requesting the trial court to rescind a withdrawal notification issued

pursuant to section 501.014(e)(4) and (5) of the Texas Government Code, pertaining to

the withdrawal of funds from an inmate account for the purpose of payment of fines,

court fees and costs. We affirm.
                                      Procedural Background


        Appellant was convicted on March 9, 2005, of possession of a controlled

substance with intent to deliver in a drug-free zone,1 twice enhanced, and sentenced to

sixty years confinement.         Almost five years later, on February 25, 2010, without a

hearing, the trial court signed and entered a document entitled Order to Withdraw

Inmate Funds (Pursuant to TX. Gov't. Code, Sec. 501.014(e)).2 By this withdrawal

notification, the trial court directed the Texas Department of Criminal Justice Institutional

Division to withhold $2,228.50 for court costs, fines and fees from Appellant's inmate

account. On March 9, 2010, a Bill of Costs was prepared reflecting Appellant owed

$2,228.50, of which $1,950 was for court-appointed attorney's fees. While the 2005

judgment provides that "the State of Texas do have and recover of the said defendant

all costs in this proceeding incurred, for which let execution issue," the summary portion

of the judgment leaves the amount of costs blank and the issue of attorney's fees is

unaddressed.


        On March 18, 2010, Appellant filed a pro se notice of appeal and a request for

recession of the withdrawal notification. On April 12, 2010, Appellant filed his second

motion requesting recession of the withdrawal notification.                    On August 30, 2010,

Appellant filed with this Court a pro se brief raising the following issues:                       (1) the

1
Tex. Health and Safety Code Ann. § 481.134 (West 2010).
2
 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). Therefore, rather
than refer to that document as an order, we prefer to use the statutory term "withdrawal notification" to
avoid confusion with the underlying court order entered after notice and hearing.

                                                     2
withdrawal order is a violation of due process; (2) the withdrawal order is void because

the trial court's subject matter jurisdiction lapsed; and (3) if the trial court's order is valid

pursuant to section 501.014(e) of the Texas Government Code, then that statute is

unconstitutional.   In its reply brief, the State raised the issue of whether a final,

appealable order existed for review by this Court. Agreeing that no final, appealable

order had been entered, on November 10, 2010, this Court found Appellant's notice of

appeal to be premature.       See Snelson v. State, 326 S.W.3d 754, 756 (Tex.App.--

Amarillo 2010, no pet.). Accordingly, the appeal was abated for ninety days to allow

Appellant the opportunity to challenge in the trial court the withdrawals from his inmate

account and obtain an appealable order. Id. at 756-57. Thereafter, on January 21,

2011, Appellant filed his third request for recession of the withdrawal notification along

with a request for setting.


       By letter dated February 25, 2011, Appellant was notified that no order had been

received by this Court during the abatement period and he was directed to show cause,

no later than March 28, 2011, why the appeal should not be dismissed for want of

jurisdiction.   See Tex. R. App. P. 42.3(a).        On March 16, 2011, Appellant filed a

response which included a copy of a letter to the trial court again requesting a ruling on

his challenge to the withdrawal notification. On April 14, 2011, a supplemental clerk's

record was filed in this Court containing the trial court's Amended Order to Withdraw

Funds signed March 21, 2011.


       We find that a final, appealable order was created by the trial court's ruling on

Appellant's motion, as evidenced by the March 21, 2011 amended order. See Williams

v. State, 332 S.W.3d 694, 698 (Tex.App.--Amarillo 2011, pet. denied) (citing Ramirez v.

                                               3
State, 318 S.W.3d 906, 908 (Tex.App.--Waco 2010, no pet.)); Jewell v. State, No. 06-

10-00114-CV, 2011 Tex. App. LEXIS 3256, at *1 (Tex.App.--Texarkana April 28, 2011,

no pet. h.).


                                  Standard of Review


       We review a trial court's decision whether to grant or deny a challenge to a

withdrawal notification under an abuse of discretion standard. Williams, 332 S.W.3d at

698. 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).


                                        Analysis


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

that a withdrawal notification 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

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

                                            4
basis of the withdrawal (a motion to rescind or modify the withdrawal notification),3 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. See Snelson, 326 S.W.3d at 756; Bryant v. State, No. 07-10-00358-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.). By initiating that process,

Appellant invoked the jurisdiction of the trial court to resolve that dispute.


       The trial court's amended order contained in the supplemental clerk's record

correctly deletes $1,950 previously assessed for court-appointed attorney's fees from

the amount authorized to be withdrawn from Appellant's inmate account. See Mayer v.

State, 309 S.W.3d 552, 555 (Tex.Crim.App. 2010) (without record evidence

demonstrating a defendant's ability to offset the costs of legal services, a trial court errs

if it orders reimbursement of court-appointed attorney's fees). Also contained in the

supplemental clerk's record is an Amended Bill of Costs. While the amended order

deletes the amount of attorney's fees, it nevertheless authorizes withdrawals from

Appellant's inmate account in the amount of $242.04 for legislatively mandated fees and

costs included in the Amended Bill of Costs.




3
 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).

                                                 5
       Legislatively mandated fees and costs4 may be withdrawn from an inmate's

account without regard to his ability to pay and do not need to be included in the oral

pronouncement of sentence or in the written judgment in order to be imposed upon a

convicted defendant. See Armstrong v. State, 320 S.W.3d 479, 482-83 (Tex.App.--

Amarillo 2010, pet. granted) (Pirtle, J., concurring) (citing Weir v. State, 278 S.W.3d

364, 367 (Tex.Crim.App. 2009)). Such fees are properly collectable by means of a

withdrawal notification regardless of a defendant's ability to pay. See Williams, 332

S.W.3d at 700.


       Because (1) the withdrawal order does not violate due process, (2) the trial court

had subject matter jurisdiction to resolve Appellant's motion, and (3) section 501.014(e)

of the Texas Government Code is not unconstitutional, Appellant's issues are overruled.


                                                Conclusion


       The trial court's amended order entered in response to Appellant's motion to

rescind the withdrawal notification is affirmed.


                                                       Patrick A. Pirtle
                                                           Justice
4
 See, e.g., Tex. Alco. Bev. Code Ann. § 106.12 (West 2007); Tex. Bus. & Com. Code Ann. § 3.506 (West
Supp. 2010); Tex. Bus. Orgs. 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. Educ. 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 Wild. 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).

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