Hernando Ramirez v. State ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00157-CV
HERNANDO RAMIREZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 54th District Court
McLennan County, Texas
Trial Court No. 2003-745-C
OPINION
Hernando Ramirez attempts to appeal the trial court’s order of withdrawal of
court costs and fees from Ramirez’s inmate account.1 TEX. GOV’T CODE ANN. §
501.014(e) (Vernon Supp. 2009). The Clerk of this Court notified Ramirez 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.
Ramirez responded that the trial court’s order for withdrawal is final and that he is
being denied his property without due process of law. Because we disagree with
Ramirez about the finality of the trial court’s order, we dismiss the appeal.
There is no final order to be appealed. Although called an “order,” the
document Ramirez 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
Ramirez 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,
Ramirez v. State Page 2
from the trial court) and an opportunity to be heard just as happened here (via motion
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.
Ramirez 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,
Ramirez’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. Only when properly
challenged and denied relief is there a trial court order that is final from which the
inmate, Ramirez, can appeal. Thus, at this juncture, he has no adverse ruling for this
Court to review.
Accordingly, this appeal is dismissed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Appeal dismissed
Opinion delivered and filed May 19, 2010
[CV06]
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