William Carroll Marrow v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00202-CV
WILLIAM CARROLL MARROW,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2003-615-C
MEMORANDUM OPINION
William Carroll Marrow attempts to appeal, by restricted appeal, the trial court’s
order of withdrawal of court costs and fees from Marrow’s inmate account. 1 TEX. GOV’T
CODE ANN. § 501.014(e) (Vernon Supp. 2009). The Clerk of this Court notified Marrow
that we questioned our jurisdiction because it appeared there was no appealable order.
1 Courts have frequently referred to these as inmate “trust” accounts. The term “trust” has been removed
from their statutory references. Act of 1989, 71st Leg., ch. 212, § 2.01, eff. Sept. 1, 1989, amended by Act of
1999, 76th Leg., ch. 62, §§ 8.10, 19.02(8), eff. Sept. 1, 1999 (current version at TEX. GOV’T CODE ANN. §
501.014 (Vernon Supp. 2009)). They are simply inmate accounts. While there may be a custodial
relationship between the Department and the inmate as to the money in the account, an issue not decided
by us today, there is certainly no trustee/beneficiary relationship wherein the Department is burdened
with all the duties of a trustee with regard to the inmate’s money.
Marrow responded that he properly filed a restricted appeal and that this Court has
jurisdiction. See TEX. R. APP. P. 26.1(c). We dismiss the appeal.
There is no final order to be appealed. Although called an “order,” the
document Marrow is seeking to have reviewed is nothing more than the notice to the
Texas Department of Criminal Justice that a judgment has been rendered against
Marrow and that, pursuant to the statute, the Department should withdraw money
from his inmate account. TEX. GOV’T CODE ANN. § 501.014(e) (Vernon Supp. 2009). As
the statute states:
On notification by a court, the department shall withdraw from an
inmate's account any amount the inmate is ordered to pay by order of the
court under this subsection. . . The department shall make a payment
under this subsection as ordered by the court to either the court or the
party specified in the court order. The department is not liable for
withdrawing or failing to withdraw money or making payments or failing
to make payments under this subsection. . . .
Id. (emphasis added); see also In re Rosin, 256 S.W.3d 925, 925 (Tex. App.—Waco 2008,
C.J. Gray dissenting to request for response).
When the required notice of withdrawal of money from an inmate account is
sent to the Texas Department of Criminal Justice, regardless of its form, the inmate has
an opportunity to be heard by the trial court about the amount to be withdrawn. See
Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009). This “opportunity” to be heard does not
have to be before the notice is provided to the inmate to fulfill the minimum
requirements of due process. As the Texas Supreme Court stated, “We hold an inmate
is entitled to notice just as happened here (via copy of the order, or other notification,
from the trial court) and an opportunity to be heard just as happened here (via motion
Marrow v. State Page 2
made by the inmate [directed to the trial court])—but neither need occur before the
funds are withdrawn. Moreover, appellate review should be by appeal, as in analogous
civil post-judgment enforcement actions.” Id.
Marrow has not filed anything in the trial court asking for an opportunity to be
heard regarding the amount of money to be withdrawn from his inmate account. If he
has not already had the opportunity to challenge the specific amount of the judgment to
be withdrawn from his account, such as by direct appeal of the original judgment,
Marrow’s review of the trial court’s action will be after he has challenged the court’s
notice/order by motion, thus giving the trial court the opportunity to correct it if it is
erroneous or thereby preserve the error for appellate review. See Ramirez v. State, ___
S.W.3d ___, No. 10-10-00157-CV, 2010 Tex. App. LEXIS 3837, *3-4 (Tex. App.—Waco
May 19, 2010, no pet. h.). Only when properly challenged and denied relief is there a
trial court order that is final from which the inmate, Marrow, can appeal. Id. at *4.
Thus, at this juncture, he has no adverse ruling for this Court to review.
Accordingly, this appeal is dismissed.
Further, Marrow’s “Appellant’s Motion for Extension of Time to File Motion to
Proceed Informa Panperis” and “Petition’s Motion for Suspension of Rule 9.3(b) of the
Texas Rules of Appellate Procedure” are dismissed as moot.2
Finally, absent a specific exemption, the Clerk of the Court must collect filing fees
at the time a document is presented for filing. TEX. R. APP. P. 12.1(b); Appendix to TEX.
2 Neither of these motions nor Marrow’s response to our letter questioning our jurisdiction were served
on the opposing party as required by Rule 9.5 of the Texas Rules of Appellate Procedure. TEX. R. APP. P.
9.5. However, we use Rule 2 to suspend the service requirement and dispose of these motions and this
appeal. See TEX. R. APP. P. 2.
Marrow v. State Page 3
R. APP. P., Order Regarding Fees (Amended Aug. 28, 2007, eff. Sept. 1, 2007). See also
TEX. R. APP. P. 5; 10TH TEX. APP. (WACO) LOC. R. 5; TEX. GOV’T CODE ANN. § 51.207(b); §
51.941(a) (Vernon 2005); and § 51.208 (Vernon Supp. 2009). Under the circumstances,
we order the Clerk to write off all unpaid fees in this proceeding. Further, the write-off
of the fees from the accounts receivable of the Court in no way eliminates or reduces the
fees owed by the person against whom they are assessed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal dismissed
Opinion delivered and filed July 14, 2010
[CV06]
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