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°