in Re Roger L. Keeling

IN THE

TENTH COURT OF APPEALS

 

No. 10-07-00019-CR

In re Roger L. Keeling

Original Proceeding

O p i n i o n

            Relator Roger L. Keeling seeks mandamus relief regarding the trial court’s June 14, 2006 Order and Supplemental Order and an attached Bill of Cost for Conviction.  Keeling’s application (petition) for writ of mandamus alleges that on January 27, 1992, he pled guilty in cause number 91-12-14,899-CR in the 82nd District Court and, under a plea bargain, was sentenced to five years in prison.  He alleges that on December 1, 1996, he was discharged from his sentence and was released from prison on parole.

            Although the petition does not discuss any details, Keeling has since been re-imprisoned.  He alleges that in late June 2006, he received notice that the convicting court for his 1992 conviction had entered a June 14 Supplemental Order and Bill of Costs.  The Supplemental Order provides:

IT IS SO ORDERED that the Clerk of the Court assess court costs, fees, and/or fines against the Offender, for court costs, fees, and/or fines pursuant to Section 501.014 of the TEXAS GOVERNMENT CODE. Furthermore, the Clerk is to forward a certified copy of this Supplemental Order and Bill of Cost to the Texas Department of Criminal Justice Inmate Trust Fund and the offender.

            The Bill of Cost assesses court costs of $123.50 for cause number 91-12-14,899-CR.  The primary order is directed to “Inmate Trust Account, Texas Department of Criminal Justice” (with a copy to Keeling) and orders that payment be made out of Keeling’s inmate trust account as follows:  an initial amount equal to the lesser of 20% of the preceding six month’s deposits in the inmate’s account or the total amount of costs; and in each following month, an amount equal to 10% of that month’s deposits to the inmate’s account or the total amount of unpaid costs.

            Keeling alleges that thereafter, he learned that his trust account had been closed and he received a monthly balance slip showing that his account had been “attached” and that he was being charged for the above costs.  After exhausting prison grievance proceedings, on August 28, Keeling filed with the convicting trial court a motion requesting that it rescind or reconsider the Supplemental Order.  Keeling alleges that, despite several requests by him for the trial court to rule, the trial court has never ruled on Keeling’s motion.  Nor has the trial court responded to our request for a response to Keeling’s petition for writ of mandamus.

            Our analysis of the Supplemental Order begins with the statute that it relies on.  Government Code section 501.014(e) provides: 

          (e) 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. The department shall make withdrawals and payments from an inmate’s account under this subsection according to the following schedule of priorities:

(1) as payment in full for all orders for child support;

(2) as payment in full for all orders for restitution;

(3) as payment in full for all orders for reimbursement of the Texas Department of Human Services for financial assistance provided for the child's health needs under Chapter 31, Human Resources Code, to a child of the inmate;

(4) as payment in full for all orders for court fees and costs;

(5) as payment in full for all orders for fines; and

(6) as payment in full for any other court order, judgment, or writ.

Tex. Gov’t Code Ann. § 501.014(e) (Vernon 2004).

            The Department received the Supplemental Order and acted on it under section 501.014(e).  Our focus, however, is on the entry of the Supplemental Order, which ordered the removal of money from Keeling’s trust account

A prison inmate has a property interest in his inmate trust account.  Covarrubias v. Tex. Dep’t of Crim. Justice, 52 S.W.3d 318, 324 (Tex. App.—Corpus Christi 2001, no pet.); Brewer v. Collins, 857 S.W.2d 819, 823 (Tex. App.—Houston [1st Dist.] 1993, no pet.); see also Op. Tex. Att’y Gen. No. GA-0534 (2007) (county has right to reimbursement from inmate but must comply with applicable due-process requirements).  “A deprivation of personal property without due process violates the United States and Texas Constitutions.”  Texas Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004).

The Texarkana court recently examined this same issue in Abdullah v. State, 211 S.W.3d 938 (Tex. App.—Texarkana 2007, no pet.).  That opinion focuses—correctly—on the procedural due process aspect of such orders, analogizing them to turnover orders and garnishments.  See id. at 940-41.

The issue as raised by Abdullah, in simple terms, is whether he was accorded due process of law and given proper notice before the State took his money.  In simple terms, the answer is: No.

. . .

It is apparent from the extremely skimpy nature of these proceedings that no attempt was made to follow garnishment procedure, turnover procedure, or any other type of procedure before the trial court entered its order.  There are no pleadings, no proper writ of garnishment, no notifications, no warnings, and no opportunity to respond.  Although a judgment of conviction typically reflects the amount of costs incurred, this one does not.  When a judgment does contain that information, it would often be clear what amount of costs existed, and the Legislature has provided a means to garnish the funds available to inmates through their trust accounts so as to satisfy the state’s expenses.  Neither that means, nor any other procedure, was utilized in this case.

Id. at 941 (footnote omitted).  Abdullah notes that another statute (Civil Practice and Remedies Code § 63.007)[1] applies to garnishment of inmate accounts, but Texas garnishment rules (Tex. R. Civ. P. 657-679) plainly had not been followed.  Id. at 941-43.  The court thus concluded that the inmate was not afforded procedural due process in the entry of the section 501.014(e) order and reversed it.[2]  Id. at 942.

            We agree with the Texarkana court’s analysis, and we hold that Keeling was not afforded procedural due process in the trial court’s entry of the Supplemental Order.    Abdullah, however, was in a different procedural posture; it was treated as a civil appeal and the trial court’s order was reversed.  See id. at 939-40 & n.1.  Keeling seeks mandamus relief.  He is entitled to it.

            An order entered without due process is void.  Cf. In re Taylor, 130 S.W.3d 448, 449 (Tex. App.—Texarkana 2001, orig. proceeding); cf. also Abdullah, 211 S.W.3d at 243 (order removing funds from inmate’s account did not afford procedural due process for inmate’s property interest).  Mandamus relief may be afforded where the trial court’s order is void.  In re Acceptance Ins. Co., 33 S.W.3d 443, 454 (Tex. App.—Fort Worth 2000, orig. proceeding); see also Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973) (providing mandamus relief for void nunc pro tunc judgment entered after original judgment had become final).  If the subject order is void, the relator need not show he did not have an adequate appellate remedy, and mandamus relief is appropriate.  In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000).  And even if the subject order is not void but voidable or erroneous and Keeling theoretically has some other remedy at law, a “technically available legal remedy will not defeat a petitioner’s entitlement to mandamus relief when the remedy is ‘so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate.’”  In re Davis, 990 S.W.2d 455, 457 (Tex. App.—Waco 1999, orig. proceeding) (citing State ex rel Holmes v. Court of Appeals, 885 S.W.2d 389, 394 (Tex. Crim. App. 1994) (quoting Smith v. Flack, 728 S.W.2d 784, 792 (Tex. Crim. App. 1987)); and Kozacki v. Knize, 883 S.W.2d 760, 762 (Tex. App.—Waco 1994, orig. proceeding)).  Given the subject matter and the circumstances—the 2006 garnishment of funds without due process from an inmate’s trust fund account to recover court costs from a 1992 conviction from which the inmate had been paroled in 1996—other theoretical remedies are inadequate and mandamus relief is appropriate.  Cf. id.

            Because Keeling was not afforded procedural due process before entry of the Supplemental Order, that order is void, and any funds removed from Keeling’s inmate account must be returned to his account.  Accordingly, we conditionally grant mandamus relief, and the writ will issue only if the trial court fails to vacate its June 14, 2006 Order and Supplemental Order and fails to order the return of any removed funds within fourteen days after the date of this opinion.

                                                                                    BILL VANCE

                                                                                    Justice

Before Chief Justice Gray,

            Justice Vance, and

            Justice Reyna

            (Chief Justice Gray dissenting)

Petition granted and writ conditionally issued

Opinion delivered and filed June 6, 2007

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[OT06]

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[1]               “A writ of garnishment may be issued against an inmate trust fund held under the authority of the Texas Department of Criminal Justice under Section 501.014, Government Code, to encumber money that is held for the benefit of an inmate in the fund.”  Tex. Civ. Prac. & Rem. Code Ann. § 63.007(a) (Vernon Supp. 2006).

[2]               Abdullah summarizes the due process analysis:

The Fourteenth Amendment to the United States Constitution protects against deprivation of life, liberty, or property by the State “without due process of law.”  Daniels v. Williams, 474 U.S. 327, 331, 106 S. Ct. 662, 88 L. Ed. 2d 662 (1986).  These words “require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.”  Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982); Thoyakulathu v. Brennan, 192 S.W.3d 849 (Tex. App.—Texarkana 2006, no pet.). The opportunity to be heard is the fundamental requirement of due process; it is an opportunity which must be granted at a meaningful time and in a meaningful manner.  Armstrong v. Manzo, 380 U.S. 545, 552, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965); Brewer v. Collins, 857 S.W.2d 819, 822 (Tex. App.—Houston [1st Dist.] 1993, no writ).  Requiring the government to follow appropriate procedures when its agents decide to “deprive any person of life, liberty, or property,” the Due Process Clause promotes fairness in such decisions.  Daniels, 474 U.S. at 331, 106 S. Ct. 662.

. . .

A helpful test in examining the question of whether due process was afforded employs a two-step inquiry:  (1) Did the individual possess a protected interest to which due process protection was applicable?  (2) Was the individual afforded an appropriate level of process?  Copelin-Brown v. N.M. State Personnel Office, 399 F.3d 1248, 1254 (10th Cir. 2005).

Abdullah, 211 S.W.3d at 941-42 & n. 7.

0; We affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed February 8, 1995

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