Juan Enriquez v. Rick Thaler ( 2015 )

FILED IN COURT OF APPEALS
IN THE COURT OF APPEALS
TWELFTH DISTRICT OF TEXAS
12th Court of Appeals District
TYLER, TEXAS
No. 12-1400016-CV
CATHY S. LUS
JUAN ENRIQUEZ,
Plaintiff-Appellant,
RICK THALER, ET AL.,
Defendants-Appellees.
On Appeal From the 3rd District Court, Anderson County,
Texas, Trial Court No. 3-41887
Honorable Pam Foster Fletcher, Judge Presiding
APPELLANT'S PLEA TO JURISDICTION
TO THE HONORABLE JUDGES OF SAID COURT:
Juan Enriquez, Appellant, herein files his plea to the
jurisdiction of this Court to hear this appeal under its present
posture, averring as grounds the following:
I. NO FINAL JUDGMENT BEFORE THE COURT
The Court does not have a final judgment which concludes
all of the claims raised by Appellant.
On December 11, 2013, based on Appellant's funds in his
inmate trust account on February 7, 2012, the court below
entered an Order of Dismissal in which the court ordered the
Texas Department of Criminal Justice to withdraw money from
Appellant's trust account equal to the lesser of "1) 20 percent
of the preceding six months deposits to the inmate's trust account
or 2) the total amount of court fees and costs charged to the
inmate in this cause". (ROA 133).
On December 20, 2013, the Appellant filed his Petitioner's
Motion to Vacate Judgment, contesting, inter alia, the withdrawal
order because "[p]ayments must be based on the amount placed in
the trust fund 6 months prior to February 7, 2012, [the date of
the indigency affidavit] not six months prior to the payment
order. " (ROA 139).
On April 8, 2014, the Anderson County District Clerk,
presented the costs of this case. (ROA 141-142).
The record reflects that notice of appeal was filed prior
to the court having acted on the motion to vacate judgment and
that the Anderson District Clerk did not enter costs into the
record until long after notice of appeal was filed.
It is apparent from the record that the Order of Dismissal
entered on December 11, 2013, does not dispose of all claims
presnted to the trial court and/or raised on appeal.
II. PROCESS DUE NOT GIVEN
With respect to withdrawal orders, the court in Webb v.
State, 324 S.W.3d 229 (Tex.App. - Amarillo 2010), set forth the
process due when such orders are entered:
In reversing this Court and rendering judgment affirming
the trial court's order denying Harrel's motion to
recind, the Supreme Court held that due process entitles
an inmate to receive notice and an opportunity to be heard,
even though those requirments might be accorded the inmate
after funds are withdrawn. Harrell, 286 S.W.3d at 321. It
concluded that because Harrell had received notice (a copy
of the withdrawal notification) and an opportunity to be
heard (the motion to rescind), he had received all the due
process required.
On the limited record before this court, we are unable to
determine if Webb has been given all that due process
requires. Specifically, we are unable to determine whether
Webb has been (1) provided the necessary underlying
documentation, and (2 afforded an adequate opportunity
"to compare the amounts assessed by the trial dourt [in
the underlying criminal proceedings] to the amount[s]
withdrawn and alert the court to any alleged errors."
See id. In that respect, we note that the, "risk of an
erroneous deprivation of [Webb's] interest through the
procedures used" in this particular case is apparent on the
face of the record.
Webb, at 232.
Here, the district court gave notice of its withdrawal
order via its Order of Dismissal. Also, Appellant was provided
-afWgans to challenge the order via a motion to vacate judgment.
However, the documentation of costs was not provided to Appellant
until after notice of appeal was filed, so he could not alert the
court to the variance between what the statute allowed to be
withdrawn from his trust account and what was withdrawn. Thus,
the record reflects "risk of an erroneous deprivation of
A
Appellant's interest through the procedure used by the lower
court to obtain money from the Appellant's prison trust fund
account.
III. NOTICE OF APPEAL PREMATURE
Because the trial court has not entered an appealable
order granting or denying the motion to vacate judgment wherein
the court could have confirmed, modified, corrected, or
rescinded the prison withdrawal notification, the Notice of
Appeal inthis case was premature.
WHEREFORE, PREMISES CONSIDERED, Appellant moves the Court
to abate this appeal and to direct the lower court, after
evidentiary hearing to develop the record, to clarify its Order
of Dismissal pursuant to which funds were withdrawn from
Appellant's prison account without the process due to Appellant.
Respectfully submitted,
Enriqi>