Danny Shead v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00164-CV
No. 07-15-00165-CV
No. 07-15-00166-CV
DANNY SHEAD, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 181st District Court, Randall County, Texas
Trial Court Nos. 8460-B, 8461-B, and 19154-B
Honorable John B. Board, Presiding
June 25, 2015
CONCURRING OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Harrell v. State holds that an inmate is entitled to notice of the issuance of a
withholding order and an opportunity to be heard regarding the order’s correctness, but
neither the notice nor the opportunity to be heard need occur before the funds are
withdrawn. 286 S.W.3d 315, 321 (Tex. 2009). The Harrell opinion goes on to recognize
that the inmate may take the opportunity to be heard by means of a motion to the court
issuing the order, and further states that “appellate review should be by appeal, as in
analogous civil post-judgment enforcement actions.” Id. I am not prepared to say that
every inmate who, like appellant Shead, has a motion challenging a withholding order
denied by the trial court without an in-court hearing thereby meets the nonparticipation
requirement for a restricted appeal.1 But this record presents a particularly convoluted
set of circumstances. On these peculiar facts, and considering that the nonparticipation
requirement is to be construed liberally in favor of a right to appeal, 2 I will concur that
the nonparticipation requirement should not bar Shead from relief if he is able to
demonstrate error on the face of the record. I therefore concur in the Court’s order
denying the State’s motion to dismiss the appeal.
James T. Campbell
Justice
1
See Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589 (Tex.
1996) (“a party’s participation in a proceeding decided as a matter of law may be very
different than one tried to a jury”).
2
Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014) (per curiam).
2