in Re Mickey T. Braswell, Relator

NO. 07-10-0080-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

APRIL 1, 2010

______________________________

IN RE MICKEY T. BRASWELL, RELATOR

_______________________________

ORIGINAL PROCEEDING
ON APPLICATION FOR WRIT OF MANDAMUS

______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

OPINION

By this original proceeding, Relator, Mickey T. Braswell, proceeding pro se and in

forma pauperis, seeks a writ of mandamus to compel the Honorable Richard Dambold1

to set aside an Order to Withdraw Inmate Funds. Pursuant to section 501.014(e) of the

Texas Government Code Annotated (Vernon Supp. 2009), the order directs the Texas

Department of Criminal Justice to collect $1,392.50 from Relator's trust account to pay

1
Sitting by assignment in the 181st District Court of Randall County, Texas. See Tex. Gov=t Code Ann.
'75.002(a)(3) (Vernon 2005).
court costs, fines, and fees incurred by him in Cause Number 17,581-B, styled The

State of Texas v. Mickey Thomas Braswell. For the reasons expressed herein, we deny

Relator's request.

By his petition for writ of mandamus, Relator contends the trial court's order

directing withdrawal of funds from his trust account was rendered without procedural

due process. He maintains the order was not based on pleadings, nor was he given an

opportunity to respond. Relator also complains that the Bill of Costs accompanying the

withdrawal order, which reflects $1,392.50 is owed, does not reflect whether attorney's

fees are included.

Mandamus Standard of Review

Mandamus relief is extraordinary. In re Southwestern Bell Telephone Co., L.P.,

235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding.) AMandamus issues only to correct

a clear abuse of discretion or the violation of a duty imposed by law when there is no

other adequate remedy by law.@ Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992)

(orig. proceeding), quoting Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985) (orig. proceeding).

Analysis

In support of his due process argument, Relator relies on Abdullah v. State, 211

S.W.3d 938 (Tex.App.--Texarkana 2007, no pet.), and In re Keeling, 227 S.W.3d 391

(Tex.App.--Waco 2007, orig. proceeding), in which both courts found the inmates had

2
not been accorded due process and proper notice before funds were withdrawn from

their inmate trust accounts to satisfy court costs, fines, and fees.

In Harrell v. State, 286 S.W.3d 315 (Tex. 2008), the Texas Supreme Court held

that an order directing prison officials to withdraw money from an inmate trust account is

a civil matter2 akin to a garnishment action or an action to obtain a turnover order. Id. at

317-19. In determining whether Harrell was accorded due process, the Court balanced

three factors discussed in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47

L.Ed.2d 18 (1976), and noted that Harrell had "already received some measure of due

process." Harrell, 286 S.W.3d at 320.

The three Eldridge factors considered in Harrell 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. The Court found that private interest is easily

determined--the amount owed. Regarding the risk of erroneous deprivation, the Court

identified the risk as modest where withdrawal notifications under the statute are based

on an amount identified in a previous court document. See Tex. Gov't Code Ann. §

501.014(e)(1)-(6) (Vernon Supp. 2009). The Court noted that "Harrell was . . . notified

of the costs assessed when the convicting court sentenced him" and he was free to

contest them at the time they were assessed. Harrell, 286 S.W.3d at 320. However, the
2
See Johnson v. Tenth Judicial District Court of Appeals at Waco, 280 S.W.3d 866, 869 (Tex.Crim.App.
2008) (holding that orders directing withdrawal of funds from inmate trust accounts is not a criminal
matter).

3
Court went on to recognize there could be a greater risk of erroneous deprivation in

instances in which the amount in the withdrawal order varied from the amount in the

underlying judgment or those instances where there were clerical or other errors. Id. In

assessing the final factor, the Government's interest, the Court addressed the fiscal and

administrative burdens of added or alternative procedures and concluded that the Texas

Department of Criminal Justice would face expending more money than it would collect

if it were required to conform to "full-blown" statutory garnishment requirements. In the

Court's opinion, such a procedure might subvert the Legislature's goal of efficient cost-

collection. Id.

Harrell had been convicted of drug charges in 1997 and 2003. In 2006, the

convicting trial court signed an order authorizing the Texas Department of Criminal

Justice to withdraw funds from his inmate trust account to pay for court costs and fees

for appointed counsel. Harrell was provided with copies of the withdrawal orders. He

then moved to rescind the orders alleging denial of due process. His motion was

denied, and his direct appeal to this Court was dismissed for want of jurisdiction on the

ground that no statutory mechanism was available for appealing a withdrawal order.

See Harrell v. State, Nos. 07-06-0469-CR and 07-06-0470-CR, 2007 Tex. App. LEXIS

6416 (Tex.App.--Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex. 2008).

In reversing this Court and rendering judgment affirming the trial court's order

denying Harrell's motion to rescind, the Supreme Court held that due process is

satisfied if an inmate receives notice and the opportunity to be heard after funds are

withdrawn. Harrell, 286 S.W.3d at 321. It concluded that because Harrell had received

4
notice (a copy of the withdrawal order) and an opportunity to be heard3 (the motion to

rescind), he had received all that due process required. Id. The Court added, "[t]he

Constitution does not require pre-withdrawal notice or a comprehensive civil

garnishment proceeding." Id.

According to the documents before us, Relator was adjudicated guilty of a

criminal offense in 2006 and sentenced to five years confinement. In the underlying

proceeding, Relator was represented by court-appointed counsel. Judgment was

signed on November 20, 2006. On October 26, 2009, the convicting court signed an

order directing the Texas Department of Criminal Justice to withdraw funds from

Relator's trust account to pay court costs, fines, and fees. A Bill of Costs4 was itemized

as follows:

COURT COSTS $1,092.50

FINE $1,000.00

CREDIT FOR PAYMENTS $ 700.00

TOTAL $1,392.50

By letter dated February 5, 2010, Relator acknowledged receipt of the Bill of

Costs but requested clarification from the Randall County Criminal Court Collections

Department on whether attorney's fees were included therein. Relator also requested a

3
While the court of appeals' opinion is silent on whether a hearing was held on Harrell's motion to rescind,
Harrell v. State, 2007 Tex. App. LEXIS 6416 (Tex.App.--Amarillo, Aug. 13, 2007), we read the Supreme
Court's opinion as assuming that Harrell was given "an opportunity to be heard just as happened here (via
motion made by the inmate)." Harrell, 286 S.W.3d at 321.
4
The Bill of Costs was verified as being accurate as of September 23, 2009. The Order to Withdraw
Inmate Funds was originally dated September 23, 2009; however, that date was lined-out and the date of
October 26, 2009, was inserted. Although the Judgment Adjudicating Guilt does not reflect that a fine
was imposed, the Bill of Costs does reflect a fine of $1,000.00.

5
copy of the judgment rendered in his criminal case. In response, the Randall County

District Clerk provided Relator with a more detailed Bill of Costs, dated February 8,

2010, reflecting that the "court costs" of $1,092.50 did include $800.00 in attorney's

fees. The new Bill of Costs also reflected a fine of $1,000.00 and a credit of $810.00 for

payments made. The District Clerk also provided Relator with a copy of the Judgment

Adjudicating Guilt entered in Cause Number 17,581-B. The summary portion of that

judgment pertaining to "Costs" was left blank and the amount of costs was not

otherwise stated in the judgment. The judgment did, however, provide that the State of

Texas "do have and recover of the said Defendant [Relator herein] all costs in this

proceeding incurred."

I. Due Process

The Texas Constitution provides:

No citizen of this State shall be deprived of life, liberty, property, privileges
or immunities, or in any manner disfranchised, except by the due course
of the law of the land.

Tex. Const. art. I, § 19.5 Inmates have a property interest in their inmate trust accounts.

See Tex. Gov't Code Ann. § 501.015(a)(2) (Vernon Supp. 2009). See also Reed v.

State, 269 S.W.3d 619, 625 (Tex.App.--San Antonio 2008, no pet.); Harrell, 286 S.W.3d

at 319.

5
The Texas Constitution's "due course" language and the United States Constitution's "due process"
language are regarded without meaningful distinction. University of Texas Medical School v. Than, 901
S.W.2d 926, 929 (Tex. 1995).

6
 A. Notice Satisfying Due Process

Harrell holds that an inmate is entitled to notice regarding withdrawal of funds

from his trust account. 286 S.W.3d at 320-21. However, there is no requirement for

pre-withdrawal notice. Id. at 321. Providing an inmate with an order of withdrawal is

constitutionally sufficient notice. Id.

Relator was provided with a copy of the trial court's Order to Withdraw Inmate

Funds. Thus, according to Harrell, he received notice sufficient to justify the

requirement of due process.

B. An Opportunity to be Heard

In Harrell, the defendant filed a motion to rescind the trial court's order of

withdrawal. That motion was denied. The Supreme Court found that Harrell's motion

constituted an opportunity to be heard, thus satisfying the second prong of the due

process analysis. In sum, the Supreme Court determined that Harrell received "some

measure of due process." Id. at 320.

In this proceeding, there is nothing to reflect whether Relator has ever been

granted the opportunity to be heard regarding the issues of either the amount of court

costs (attorney's fees in particular) or his "financial resources that enable him to offset in

part or in whole the costs of the legal services provided." See article 26.05(g), Tex.

Code Crim. Proc. Ann. Art. 26.05(g) (Vernon Supp. 2009).6 The Supreme Court's edict

that neither notice nor the opportunity to be heard need occur before funds are
6
Article 26.05(g) grants the trial court the authority to order reimbursement of appointed attorney's fees if
the court determines that a defendant has financial resources that enable him to offset, in part or in
whole, the costs of legal services provided.

7
withdrawn, id. at 321, presents a quandary for Relator. He must still avail himself of the

opportunity to be heard, whether by motion in the trial court or otherwise, to challenge

the propriety of, or factual basis for, the assessment of court costs, fines, and attorney's

fees. Only then, can this Court determine whether Relator has been accorded "some

measure of due process" sufficient to satisfy the requirements of Harrell and thereby

satisfy the mandamus requirement of no other adequate remedy at law. On the record

before us, Relator has not demonstrated that the trial court denied him due process by

denying him an opportunity to make that challenge, nor has he otherwise established

his entitlement to mandamus relief as the trial court followed the law in the rendering of

an order of withdrawal.

II. Assessment of Costs and Fees

Relying on Perez v. State, 280 S.W.3d 886 (Tex.App.--Amarillo 2009, no pet.),

Relator raises a final argument challenging the costs and attorney's fees assessed.

Relator acknowledges that the 2006 judgment provides "the State of Texas do have and

recover of the said Defendant all costs in this proceeding incurred." However, he points

out that the judgment is silent on the amount of "Costs."

In Perez, this Court, relying on a "fair and plain reading" of article 26.05(g) of the

Texas Code of Criminal Procedure Annotated (Vernon Supp. 2009), held there must be

some evidentiary basis to support a trial court's decision to levy any fees on a

defendant. Recently, the Texas Court of Criminal Appeals agreed with a similar

decision of this Court and affirmed Mayer v. State, 274 S.W.3d 898, 901 (Tex.App.--

Amarillo 2009), aff'd, No. PD-0069-09, 2010 Tex. Crim. App. LEXIS 100 (Tex.Crim.App.,

8
March 24, 2010). In Mayer, this Court held the trial court erred in ordering

reimbursement of appointed attorney's fees without evidence to demonstrate that the

appellant was "able to pay" or had financial resources that would enable him to offset, in

part or in whole, the costs of legal services provided to him. 274 S.W.3d at 901.

Perez and Mayer were direct appeals in which each appellant raised the issue of

the sufficiency of the evidence to support an order for the reimbursement of court-

appointed attorney's fees. Unfortunately for Relator, he did not appeal at the time he

was adjudicated guilty in 2006.7 The sufficiency of the evidence to support

reimbursement is not reviewable by mandamus.8

Conclusion

We conclude that by simply entering the Order to Withdraw Inmate Funds, the

trial court did not abuse its discretion nor violate a duty imposed by law for which there

is no other adequate remedy by law. Consequently, Relator's petition for writ of

mandamus is denied.

Patrick A. Pirtle
Justice

7
Although the trial court's decision to adjudicate guilt was not appealable in 2006, see Act of May 28,
2007, 80th Leg., R.S., ch. 1308, § 5(b) 2007 Tex. Gen. Laws 4395, 4397, Relator could have raised the
issue of reimbursement of court-appointed attorney's fees by direct appeal as it was unrelated to the
decision to adjudicate.
8
We recognize the difficulty Relator would have had in challenging court-appointed attorney's fees by
direct appeal in 2006 when the judgment did not reflect any costs, nor did it specify a fine or an amount of
attorney's fees. We express no opinion as to whether the failure to include a fine or a specific amount of
court costs, including attorney's fees, in the original judgment deprived Relator of his due process right to
contest the propriety of, or factual basis for, the trial court's subsequent withdrawal order.

9