Wesley Wren Massey v. State ( 2012 )

NO. 07-12-0132-CV
NO. 07-12-0133-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 14, 2012
______________________________
WESLEY WREN MASSEY, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 242[ND] DISTRICT COURT OF HALE COUNTY;
NOS. B17187-0704 & B17992-0904; HONORABLE ED SELF, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Appellant, Wesley Wren Massey, was convicted of the state jail felony offenses of theft and forgery and assessed sentences of one year and two years respectively. Both sentences commenced on May 27, 2009, and the trial court ordered that the sentences be served concurrently. Almost three years later, on March 16, 2012, after Appellant had fully served both sentences, the trial court entered an Order to Withdraw Funds in each cause. Both orders direct the Texas Department of Criminal Justice to withhold sums for "court costs, fees and/or fines and/or restitution" related to the respective underlying proceedings. While the judgment in Cause No. B17187-0704 orders Appellant to pay $1,000.00 in fines, $217.00 in court costs, $353.00 in restitution, and $800.00 in attorney's fees (totaling $2,370.00), the withdrawal order in that cause directs the withholding of $1,804.50 from his inmate account. And, while the judgment in Cause No. B17992-0904 orders Appellant to pay $750.00 in fines, $275.00 in court costs and $1,141.37 in restitution (totaling $2,166.37), the withdrawal order in that cause directs the withholding of $817.89. Furthermore, while neither order contains an attached Bill of Costs or other explanation as to what the respective withholding amounts were for or how the dollar amounts were derived, both orders were apparently entered sua sponte and without notice or hearing. Proceeding pro se and in forma pauperis, Appellant appeals both orders.
Orders to Withdraw Inmate Funds and Due Process
In Harrell v. State, 286 S.W.3d 315 (Tex. 2009), the Texas Supreme Court held that a withdrawal order 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 balanced the three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). The Court concluded that because Harrell had received notice of the withdrawal (a copy of the withdrawal order) and an opportunity to contest the dollar amount and statutory basis of the withdrawal (a motion to rescind or modify the withdrawal order subsequently filed by Harrell), he received all that due process required. Id. at 321. The Court also added that neither notice nor an opportunity to be heard need occur before the issuance of a withdrawal order. 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 order. See Snelson v. State, 326 S.W.3d 754, 756 (Tex.App.--Amarillo 2010, no pet.); Williams v. State, 322 S.W.3d 301 (Tex.App.--Amarillo 2010, no pet.); and Bryant v. State, No. 07-10-00358-CV, 2010 Tex. App. LEXIS 8059, at *4-5 (Tex.App.--Amarillo Oct. 5, 2010, no pet.) (mem. op.).
The limited documents before this Court do not demonstrate whether Appellant has had the opportunity to challenge the amounts assessed and the statutory basis for those amounts, which are the principal components supporting a withdrawal order. At this stage of the proceeding, this Court is unable to evaluate whether Appellant has received all that due process requires. Consequently, we sua sponte abate this appeal for 180 days and remand the cause to the trial court to give Appellant the opportunity to file a challenge to the withdrawal orders and develop a record for meaningful review.
Upon remand, Appellant is entitled to file a motion to modify, correct or rescind the withdrawal notifications, present the motion to the trial court and have it considered by the trial court by whatever means necessary. Additionally, should Appellant file a motion in the trial court challenging the withdrawal order, and should attorney's fees constitute all or any portion of the withholding amount, the trial court shall confirm whether there is a factual basis to support the trial court's finding in Cause No. B17187-0704 that Appellant is able to pay $800 in attorney's fees. See Mayer v. State, 309 S.W.3d 552 (Tex. 2010) (holding that an order to reimburse court-appointed attorney's fees must be supported by evidence of the defendant's ability to pay). See also Perez v. State, 323 S.W.3d 298, 307 (Tex.App.--Amarillo 2010, pet. ref'd).
Should Appellant challenge the withdrawal orders, any ruling resulting from that challenge shall be included in either the clerk's record or a supplemental clerk's record to be filed with the Clerk of this Court on or before November 30, 2012. Should the period of abatement expire without any action being taken by Appellant, these appeals will be reinstated and dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).
It is so ordered.
Per Curiam