Juan Enriquez v. Rick Thaler

mCD IN COURT OF APPEALS
19th Court of Appeals District 8/6/2015
A'J3-6 2015 No. 12-14-00016-CV

IN THE COURT OF APPEALS
TYLER TEXAS
FTH COURT OF APPEALS DISTRICT
CATHY S. LUSK, CLERKEI TYLER, TEXAS

JUAN ENRIQUEZ, § APPEAL FROM THE 3RD
Appellant,

v. JUDICIAL DISTRICT COURT

RICK THALER, ET AL.,
Appellees. § ANDERSON COUNTY, TEXAS

APPELLANT'S MOTION FOR REHEARING

TO THE HONORABLE JUDGES OF SAID COURT:

Juan Enriquez, Appellant, pursuant to Rule 49.1,

Tex.R.App.P, moves the Court for a rehearing, averring as

grounds the following:

I. JURISDICTION

_1. The Record Facts :

The basis of this appeal is the Order of Dismissal entered

by the trial court on December 11, 2013. The Order of Dismissal

includes a withdrawal order to the Texas Department of Criminal

Justice (TDCJ) to "withdraw money from the trust account of the
inmate in accordance with this order and shall hold the money in
a separate account [and] shall forward the money to the District
Clerk of Anderson County . " Order of Dismissal.

The withdrawal order here, unlike withdrawal orders under

Section 501.014, Tex.Gov't Code, which are usually entered

separately and years after the judgment of conviction, was entered

under Chapter 14, of the Texas Divil Practice and Remedies Code,

as part of the Order of Dismissal in this case.
 Appellant filed a Motion to Vacate Judgment, challenging

all indigency decisions and the Withdrawal Order which sought

post-judgment enforcement. The trial court did not address nor

rule on the Motion to Vacate Judgment.

"After this cause was submitted to this court for consideration,

Enriquez filed a plea to the jurisdiction." Memorandum Opinion,

at 2. Enriquez argues that the Court does not have jurisdiction

because it does not have a final, appealable order, disposting of

all the issues presented to the trial court. See Maldonado v.

State, 360 S.W.3d 10, 13 (Tex.App. — Amarillo 2010)("the trial

court's disposition of such a motion creates an appealable

order"), citing to Ramirez v. State, 318 S.W.3d 906, 908 (Tex.App. —

(Tex.App. -- Waco 2010, no pet.)(holding that "only where [the

withdrawal notification is] properly challenged and denied relief

is there an order that if final from which an inmate can appeal").

This Court denied Enriquez's plea to jurisdiction, giving

the following reasons:

(1) "... a withdrawal notification [under
§501.014(e)(4] is akin to a garnishment action and can
be contested" by the inmate separately from the judgment
ordering payment". Memorandum Opinion, at 3.

(2) "The cause before us does not involve a Section
501.014 withdrawal notification." Memorandum Opinion,a t 3.

(3) "Here, all pending parties and claims were finally
disposed of and the December 11, 2013 order of dismissal is
therefore final." Memorandum Opinion, at 3.

Appellant presents first in his motion for rehearing the

jurisdictional question because he contends the Memorandum Opinion

is a legal nullity because the Court does not have jurisdiction

over the appeal.
2. Reasons Why Rehearing Is
Mandated By Law:

The panel's decision to assume jurisdiction in a case where

an appealable and final order does not exist and where the court

did not follow controlling law from the Texas Supreme Court is so

beyond the pale that rehearing is mandated by law. b c°