                                        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, JUDGE1

                             _______________________________

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.


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).
                                               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 Funds3 directing


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
                                                       2
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 matter5 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



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).

                                                    3
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,


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).
                                                 4
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

                                            5
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

                                                6
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




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