Wesley Wren Massey v. Irene Gonzales Massey

NO. 07-12-0131-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
MAY 14, 2012
______________________________
WESLEY WREN MASSEY, APPELLANT
V.
IRENE GONZALES MASSEY, APPELLEE1
_________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B36869-0910; HONORABLE ED SELF, JUDGE
_______________________________
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ABATEMENT AND REMAND
Appellant, Wesley Wren Massey, an inmate proceeding pro se and in forma
pauperis, appeals the trial court's entry of an Order to Withdraw Funds, entered on
March 16, 2012. That order, which directs the Texas Department of Criminal Justice to
withhold from his inmate account the sum of $231 for "court costs, fees and/or fines
and/or restitution" related to an underlying proceeding styled In the Matter of the
1
We recognize that Irene Gonzales Massey is not a party to this proceeding. The real party in interest in
the contested order is Carla Cannon, in her capacity as Hale County District Clerk.
Marriage of Wesley Wren Massey and Irene Gonzales Massey, was apparently entered
sua sponte and without notice or hearing.2 The Order to Withdraw Funds does not
contain an attached Bill of Costs or other explanation as to what the withholding amount
was for or how the dollar amount was derived. While only a few documents have been
filed to date in this appeal, one of those documents, an Order of Dismissal, does assess
costs of court against Appellant. It does not, however, recite the amount of those costs.
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).3 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),4 he received all that due
2
Although the statutory basis for the Order to Withdraw Funds was not recited in the order, we presume
the trial court was attempting to order the withdrawal of funds from an inmate's account pursuant to Tex.
Gov't Code Ann. § 501.014(e) (West Supp. 2011).
3
The three Eldridge factors are: (1) the private interest affected by the official action, (2) the risk of an
erroneous deprivation of such interests through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards, and (3) the Government's interest, including the function
involved and the fiscal and administrative burdens that additional or substitute procedural requirements
would entail.
4
The trial court denied Harrell's Motion to Rescind. See Harrell v. State, Nos. 07-06-0469-CR, 07-06-
0470-CR, 2007 Tex. App. LEXIS 6416, at *2 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315
(Tex. 2009).
2
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 amount assessed and the statutory basis for
that amount, 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 an opportunity to file a
challenge to the withdrawal order and develop a record for meaningful review.
Upon remand, Appellant is entitled to file a motion to modify, correct or rescind
the withdrawal order, present the motion to the trial court and have it considered by the
trial court by whatever means necessary.
Should Appellant challenge the withdrawal order, 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, this appeal will
be reinstated and dismissed for want of prosecution. See Tex. R. App. P. 42.3(b).
3
It is so ordered.
Per Curiam
4