Dale Roy Slaven v. State ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00300-CV
Dale Roy Slaven § From Criminal District Court No. 2
§ of Tarrant County (1179775D)
v.
§ November 15, 2012
The State of Texas § Per Curiam
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court‘s order. It is ordered that the order of the trial
court is affirmed.
SECOND DISTRICT COURT OF APPEALS
PER CURIAM
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00297-CV
NO. 02-11-00298-CV
NO. 02-11-00299-CV
NO. 02-11-00300-CV
NO. 02-11-00301-CV
NO. 02-11-00302-CV
NO. 02-11-00303-CV
NO. 02-11-00304-CV
NO. 02-11-00305-CV
NO. 02-11-00306-CV
NO. 02-11-00307-CV
NO. 02-11-00308-CV
NO. 02-11-00309-CV
NO. 02-11-00310-CV
NO. 02-11-00311-CV
DALE ROY SLAVEN APPELLANT
V.
THE STATE OF TEXAS APPELLEE
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FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION[1]
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I. Background
Appellant pro se Dale Roy Slaven entered open pleas of guilty to eight
charges of aggravated robbery, six charges of robbery, and one charge of
forgery. The trial court found Slaven guilty on all charges, accepted his pleas of
true to the habitual offender notices, and assessed his punishment at sixty years‘
confinement in the aggravated robbery and robbery cases and twenty years‘
confinement in the forgery case, all sentences to run concurrently. The fifteen
judgments, signed on September 21, 2010, included $274 in court costs for a
cumulative total of $4,110. We affirmed the judgment in each of Slaven‘s fifteen
cases earlier this year. See Slaven v. State, Nos. 02-10-00413-CR, 02-10-
00414-CR, 02-10-00415-CR, 02-10-00416-CR, 02-10-00417-CR, 02-10-00418-
CR, 02-10-00419-CR, 02-10-00420-CR, 02-10-00421-CR, 02-10-00422-CR, 02-
10-00423-CR, 02-10-00424-CR, 02-10-00425-CR, 02-10-00426-CR, 02-10-
00427-CR, 2012 WL 1964590, at *6 (Tex. App.—Fort Worth May 31, 2012, pet.
ref‘d) (mem. op., not designated for publication).
On February 7, 2011, the trial court issued an ―Order to Withdraw Funds‖
in each of Slaven‘s fifteen cases.[2] The orders directed the Texas Department of
Criminal Justice (the Department) to withdraw money from Slaven‘s inmate
account in predetermined percentages and to forward the withdrawn amounts to
the Tarrant County District Clerk until Slaven‘s court costs are paid in full.[3]
After he received the trial court‘s orders to withdraw funds, Slaven
attempted to challenge the withdrawal of funds from his inmate account by filing
notices of appeal in this court. He also filed motions in the trial court to challenge
the orders. We abated these appeals so that Slaven could pursue in the trial
court his challenge to the withdrawal orders. The trial court conducted a hearing
and signed an order on December 29, 2011. The trial court‘s order waived the
court costs in ten of Slaven‘s fifteen cases and amended the manner in which the
Department could withdraw funds from Slaven‘s inmate account in the future by
ordering that the Department cumulatively withdraw no more than ten percent of
the funds in Slaven‘s inmate account per month.[4] These appeals were then
reinstated.
II. Discussion
Slaven argues in his first three issues that he has been denied due
process, that the withdrawal of his inmate funds in satisfaction of court costs
violates his rights under article 1, sections 13 and 19 of the Texas constitution, [5]
and that there is no statutory or factual basis for the court costs. Slaven argues
in his fourth through seventh issues that the assessment of court costs resulted
from prosecutorial misconduct, retaliation by the district attorney and district
clerk, abuse of judicial discretion, and ineffective assistance of counsel. We
review a trial court‘s denial of a motion contesting a withdrawal order under an
abuse of discretion standard. See Williams v. State, 332 S.W.3d 694, 698 (Tex.
App.—Amarillo 2011, pet. denied).
A. Due Process – Withdrawal Notification
A withdrawal notification directing prison officials to withdraw money from
an inmate account pursuant to government code section 501.014(e) is a civil
matter akin to a garnishment action or an action to obtain a turnover
order. Harrell v. State, 286 S.W.3d 315, 317–19 (Tex. 2009); Johnson v. Tenth
Judicial Dist. Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex. Crim. App.
2008). ―Such post-judgment collection efforts are designed to reimburse the
State, not to punish the inmate, and due process is satisfied if the inmate
receives notice and the opportunity to be heard after funds are
withdrawn.‖ Harrell, 286 S.W.3d at 316.
In Harrell, the supreme court held that due process entitles an inmate to
receive notice and an opportunity to be heard, even though those requirements
might be accorded to the inmate after the funds are withdrawn. See id. at
321. Harrell had received a copy of the trial court orders requiring withdrawal of
funds from his inmate account, and he filed a motion to rescind the orders based
on a denial of due process, specifically challenging the inability to present
evidence of his indigence. Id. at 317. The trial court denied Harrell‘s
motion. Id. Discussing Harrell‘s specific complaint, the supreme court 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 that
due process required. Id. at 321. The Harrell Court added, ―The Constitution
does not require pre-withdrawal notice or a comprehensive civil garnishment
proceeding.‖ Id.
In this case, Slaven unquestionably received notice of the trial court‘s
withdrawal orders because he filed notices of appeal in this court and motions
contesting the withdrawals in the trial court. Furthermore, Slaven had an
opportunity to be heard because the trial court conducted a hearing on his
motions.[6] Indeed, the trial court granted a majority of the relief that Slaven had
requested by waiving court costs in ten of Slaven‘s fifteen cases (thereby
reducing the total of all court costs assessed from $4,110 to $1,370) and by
restricting the withdrawals from his inmate account to a collective total of ten
percent in a given month. We hold that Slaven has not been denied due
process, and we overrule the portions of his first and second issues that assert
due process complaints. See id.
B. Authority to Order Court Costs
In the remainder of his first and second issues, Slaven argues that he does
not know what services were provided that permitted the court costs taxed
against him and that there is no legal authority for those costs. Slaven argues in
his third issue that, because of the assessment of court costs, he ―has been
made to suffer under excessive and unusual fines.‖
First, court costs are not punitive. Weir v. State, 278 S.W.3d 364, 367
(Tex. Crim. App. 2009) (holding that because court costs are not punitive, they
do ―not have to be included in the oral pronouncement of sentence . . . as a
precondition to their inclusion in the trial court‘s written judgment‖). Court costs
are treated differently than fines imposed as punishment and are ―intended by
the Legislature as a nonpunitive ‗recoupment of the costs of judicial resources
expended in connection with the trial of the case.‘‖ Id. at 366.
Furthermore, the court costs assessed against Slaven are listed on a
―Transaction Fee Breakdown‖ document in each of the five cases for which
Slaven remains obligated to pay court costs. That document contains the
following information:[7]
Fee Name Amount
1. Clerk Fees $40.00
2. DC Rec Mgmt&Pre $2.50
3. DC Recs Tech $4.00
4. Security Fees $5.00
5. Crim. Records $22.50
6. Jury Service FD $4.00
7. PO Arrest Fee $50.00
8. PO Commit/Rel $5.00
9. Ind DefenseFund $2.00
10. Jud Support–CRM $6.00
11. CCC–Felony $133.00
Total Costs: $274.00
Each of these fees is mandated by the code of criminal procedure or the
local government code. Code of criminal procedure article 102.005(a) states that
a ―defendant convicted of an offense in . . . a district court shall pay for the
services of the clerk of the court a fee of $40.‖ Tex. Code Crim. Proc. Ann. art.
102.005(a) (West 2006). This corresponds to cost number one in the
chart. Costs number two and five in the chart are mandated by article 102.005(f),
which requires a $25 fee for county records management services with $22.50
paid for services by the county and $2.50 paid for services by the district court
clerk. See id. art. 102.005(f)(1), (2). Article 102.0169(a) requires a convicted
defendant to ―pay a $4 county and district court technology fee as a cost of
court,‖ and this corresponds to cost number three in the chart above. Id. art.
102.0169(a) (West Supp. 2012).
Cost number four is required by article 102.017(a), which provides that ―[a]
defendant convicted of a felony offense in a district court shall pay a $5 security
fee as a cost of court.‖ Id. art. 102.017(a) (West Supp. 2012). Article
102.0045(a) mandates ―a fee of $4 to be used to reimburse counties for the cost
of juror services.‖ Id. art. 102.0045(a) (West Supp. 2012). This $4 fee
corresponds with cost number six in the chart. Costs number seven and eight
are required for services performed by a peace officer in cases involving felony
convictions, $50 for executing and processing an arrest warrant and $5 for
commitment or release. Id. art. 102.011(a)(2), (6) (West Supp. 2012).
Costs number nine, ten, and eleven are required by the local government
code. Section 133.107(a) requires that a convicted person pay, as a court cost,
―a fee of $2 to be used to fund indigent defense representation through the fair
defense account,‖ and section 133.105(a) requires that a person convicted of an
offense pay, as a court cost, ―a fee of $6 to be used for court-related purposes for
the support of the judiciary.‖ Tex. Loc. Gov‘t Code Ann. §§ 133.105(a) (West
2008), .107(a) (West Supp. 2012). Finally, cost number eleven is $133, and local
government code section 133.102(a)(1) requires that a convicted person pay a
court cost of ―$133 on conviction of a felony.‖ Id. § 133.102(a)(1) (West Supp.
2012).
Slaven‘s primary argument throughout all of his first three issues is that the
trial court should have waived the court costs in all fifteen of his cases because
he is indigent and will indefinitely remain indigent because any future deposits
into his inmate account will be automatically withdrawn for the payment of court
costs. However, each court cost charged to Slaven is mandated by statute, and
the trial court already waived two-thirds of the court costs and restricted the
amount that could be withdrawn each month. Furthermore, a convicted
defendant‘s indigency is not relevant to the amount of court costs assessed when
those court costs do not include an obligation to pay court-appointed attorney‘s
fees under code of criminal procedure article 26.05(g). See Dissette v. State,
No. 09-11-00672-CR, 2012 WL 1249014, at *1 (Tex. App.—Beaumont Apr. 11,
2012, no pet.) (mem. op., not designated for publication); Auchincloss v. State,
No. 09-11-00673-CR, 2012 WL 1249412, at *1 (Tex. App.—Beaumont Apr. 11,
2012, no pet.) (mem. op., not designated for publication). Because the court
costs are statutorily required, because they are not punitive, because Slaven‘s
indigency is not relevant to the statutorily mandated court costs other than
attorney‘s fees, and because the trial court has granted significant relief to
Slaven through reduction of the amount of court costs and the manner in which
they may be withdrawn from his inmate account, we hold that the trial court did
not abuse its discretion by declining to waive court costs in all fifteen of Slaven‘s
cases. We overrule the remainder of Slaven‘s first two issues and all of his third
issue.
C. Remaining Issues
Slaven argues in his fourth through seventh issues that the assessment of
court costs resulted from prosecutorial misconduct, retaliation by the district
attorney and district clerk, abuse of judicial discretion, and ineffective assistance
of counsel. Specifically, Slaven contends that he entered an open plea of guilty
only on the belief that the State would waive the assessment of all fines, fees,
and costs; that the district attorney‘s office and clerk‘s office have sought to
impose costs against him with ―vindictive intent‖; that his appointed criminal
appellate attorney was not competent and offered incorrect and misleading legal
advice; and that the trial court abused its discretion by declining to waive the
remainder of the court costs because of this alleged conduct.
As discussed above, each of the court costs assessed against Slaven is
mandated by statute. But more importantly, Slaven‘s fourth through seventh
issues present criminal matters that must have been brought, if at all, in the direct
appeals of his criminal convictions. See Malone, 2012 WL 579472, at *3 (holding
that Malone waived his challenge to the assessment of costs by failing to pursue
a direct appeal of his criminal convictions) (citing Armstrong v. State, 340 S.W.3d
759, 767 (Tex. Crim. App. 2011)); see also Harrell, 286 S.W.3d at 321 (noting the
due process Harrell received through his criminal case concerning the amount of
appointed-counsel fees and court costs assessed); see generally Johnson v.
State, No. 14-11-00693-CR, 2012 WL 4878803, at *1–3 (Tex. App.—Houston
[14th Dist.] Oct. 16, 2012, no pet. h.) (addressing on direct appeal from criminal
conviction the sufficiency of evidence to support the assessment of court
costs). We overrule Slaven‘s fourth through seventh issues. See Malone, 2012
WL 579472, at *3.
III. Conclusion
Having overruled each of Slaven‘s issues, we affirm the trial court‘s
December 29, 2011 withdrawal order.
PER CURIAM
PANEL: GARDNER, MCCOY, and MEIER, JJ.
DELIVERED: November 15, 2012
[1]
See Tex. R. App. P. 47.4.
[2]
These ―orders‖ are not ―‗order[s]‘ in the traditional sense of a court order,
judgment, or decree issued after notice and hearing in either a civil or criminal
proceeding.‖ Malone v. State, Nos. 02-10-00383-CV, 02-10-00384-CV, 02-10-
00385-CV, 02-10-00386-CV, 02-10-00387-CV, 02-10-00388-CV, 02-10-00389-
CV, 02-10-00390-CV, 2012 WL 579472, at *1 n.3 (Tex. App.—Fort Worth Feb.
23, 2012, pet. denied) (mem. op. on reh‘g). They are more in the nature of
notifications by a court that prison officials must withdraw sums according to set
percentages and at set times. Id.[3]
Specifically, the order required the initial withdrawal in each case to be
fifteen percent of the inmate account balance if the balance was $100 or below,
twenty-five percent of any balance between $100 and $500, and fifty percent of
any balance above $500. Thereafter, the Department would withdraw ten
percent of any deposits into Slaven‘s account until the balance of all court costs
is paid in full.
[4]
In other words, even though Slaven still must pay court costs for five
cases, the total amount of court costs taken from his trust account in any given
month cannot exceed ten percent of the account balance. If Slaven‘s account
balance is $15, the Department can withdraw only $1.50 and equally apportion
that $1.50 toward the outstanding balance in the five cases.
[5]
Article 1, section 13 prohibits excessive fines and cruel and unusual
punishment. Tex. Const. art. 1, § 13. Article 1, section 19 prohibits the
deprivation or disenfranchisement of ―life, liberty, property, privileges or
immunities . . . except by the due course of the law of the land.‖ Id. art. 1, § 19.
[6]
We express no opinion as to whether a trial court is required to conduct a
hearing on a motion contesting an order of withdrawal.
[7]
The title for each of the costs assessed is set forth exactly as it appears
in the document.