in Re: Charles Douglas Land

In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-09-00050-CR ______________________________ IN RE: CHARLES DOUGLAS LAND Original Habeas Proceeding Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Justice Moseley MEMORANDUM OPINION Charles Douglas Land has filed an original application seeking issuance of a writ of habeas corpus. He currently has a direct appeal pending in this Court from the conviction which resulted in his incarceration. Individuals who are confined unlawfully in Texas may seek habeas relief pre-trial, or a post-conviction collateral attack from courts as specified by legislative fiat. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2008), arts. 11.08, 11.09 (Vernon 2005). This meets neither criteria, but was brought as an original proceeding with this Court. Texas courts of appeals do not have original jurisdiction over applications for habeas relief in connection with criminal proceedings. See Queen v. State, 212 S.W.3d 619, 623 (Tex. App.--Austin 2006, no pet.); Ex parte Martinez, 175 S.W.3d 510, 512-13 (Tex. App.--Texarkana 2005, orig. proceeding); Ashorn v. State, 77 S.W.3d 405, 409 (Tex. App.--Houston [1st Dist.] 2002, pet. ref'd); Ex parte Hawkins, 885 S.W.2d 586, 588 (Tex. App.--El Paso 1994, orig. proceeding); Ex parte Lewis, 663 S.W.2d 153, 154 (Tex. App.--Amarillo 1983, orig. proceeding); (1) Sara Rodriguez, Appellate Review of Pretrial Requests for Habeas Corpus Relief in Texas, 32 Tex. Tech L. Rev. 45 (2000). We have no jurisdiction to consider this application. We, therefore, dismiss the application for want of jurisdiction. Bailey C. Moseley Justice Date Submitted: February 25, 2009 Date Decided: February 26, 2009 Do Not Publish 1. We do, however, have limited jurisdiction to hear habeas proceedings when the person is restrained as a result of violating an order, judgment, or decree in a civil case. Tex. Gov't Code Ann. § 22.221(d) (Vernon 2004). ceholder Text"/> In The Court of Appeals Sixth Appellate District of Texas at Texarkana ______________________________ No. 06-10-00114-CV ______________________________ RANDALL WAYNE JEWELL, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 102nd Judicial District Court Bowie County, Texas Trial Court No. 04F0279-102 Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION When funds are removed from an inmate’s trust account to pay toward previously adjudged inmate obligations, the statutory procedure is that a trial court issues an initial “notification” that funds be removed from the account. Tex. Gov’t Code Ann. § 501.014(e) (Vernon Supp. 2010). The inmate wishing to contest that removal has a right to seek a hearing on the validity of that removal. Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009). The trial court’s ruling on the inmate’s contest is what can be appealed. Snelson v. State, 326 S.W.3d 754, 755 n.1 (Tex. App.—Amarillo 2010, no pet.); Ramirez v. State, 318 S.W.3d 906 (Tex. App.—Waco 2010, no pet.). Here, Randall Wayne Jewell actually took the step of asking the trial court to rescind its notification[1] that $563.00 be withdrawn from Jewell’s inmate trust account to pay court costs and attorney’s fees previously assessed against him in his criminal judgment for evading arrest.[2] With that rescission motion still pending and not yet ruled on, Jewell now seeks to appeal the trial court’s original withdrawal notification. The initial question is whether an appealable order exists which would vest this Court with the jurisdiction to hear an appeal. See Tex. R. App. P. 26.2(a). Because there is no appealable order, we dismiss this attempted appeal for want of jurisdiction. The notification is not itself an appealable order, it is only a notification that the legislatively required withdrawal is to occur.[3] The appealable order is the trial court’s ruling on a motion to rescind.[4] Because no final, appealable order had been entered by the trial court relative to Jewell’s trust account, and Jewell’s rescission request was still pending with the trial court, we abated this matter to the trial court for ninety days for resolution of the rescission request. In that order of abatement, dated January 13, 2011, we specified that we were doing so to allow Jewell the opportunity to take such action as necessary to (1) present his motion to the trial court, (2) schedule any necessary hearing, and (3) obtain from the trial court a final, appealable order addressing that motion. See Iacono v. Lyons, 6 S.W.3d 715 (Tex. App.—Houston [1st Dist.] 1999, order). We also warned Jewell that, in the absence of such actions, within ninety days after January 13, 2011, if there continued to be no appealable order in existence, we would be required to dismiss for want of jurisdiction. The abatement period has expired and it appears that no appealable order has been entered. We have not been informed of any other relevant act that would justify further delaying our ruling on this attempted appeal. As no appealable order has been entered within the permitted time frame, this appeal is subject to dismissal. See Ramirez, 318 S.W.3d 906 (dismissing appeal from withdrawal notification after finding no final, appealable order). We dismiss the appeal for want of jurisdiction. Josh R. Morriss, III Chief Justice Date Submitted: April 28, 2011 Date Decided: April 29, 2011 [1]Although the notification is titled “Order to Withdraw Funds,” it is not properly an order in the traditional sense of a court order or judgment issued after notice and hearing in either a civil or criminal proceeding. The controlling statute, Section 501.014(e) of the Texas Government Code, describes the process as a “notification by a court” directing prison officials to withdraw sums from an inmate’s account, in accordance with a schedule of priorities set by the statute, for the payment of “any amount the inmate is ordered to pay by order of the court.” See Tex. Gov’t Code Ann. § 501.014(e); see also Harrell, 286 S.W.3d at 316 n.1. Jewell’s motion to rescind is in the form of a pro se pleading titled “Motion to Object.” [2]In 2007, Jewell had been convicted of evading arrest, had entered into a plea agreement, and was sentenced to serve twelve months’ confinement. The trial court’s 2007 judgment assessed court costs of $213.00 and attorney’s fees of $350.00. [3]The Amarillo Court of Appeals has likened this notification to a judgment nisi, because such a judgment is a provisional judgment entered when an accused fails to appear for trial. A judgment nisi triggers the issuance of a capias and it serves as notice of the institution of a bond forfeiture proceeding. It is not final or absolute, but may become final. See Safety Nat’l Cas. Corp. v. State, 273 S.W.3d 157, 163 (Tex. Crim. App. 2008). Nisi means “unless,” so a judgment nisi is valid unless a party takes action causing it to be withdrawn. Id. Similarly, a withdrawal notification, issued pursuant to § 501.014(e), triggers the withdrawal from an inmate account, serves as notice of the collection proceeding, and continues to operate unless the inmate takes action causing the notification to be withdrawn. Therefore, rather than refer to that document as an order, we prefer to use the term “withdrawal notification” to avoid confusion with an underlying court order or judgment actually ordering the payment of a sum certain, falling within at least one of the six priority categories listed in the statute. Snelson, 326 S.W.3d at 755 n.1. [4]In Harrell, the Texas Supreme Court held that a withdrawal notification directing prison officials to withdraw money from an inmate trust account pursuant to Section 501.014(e) of the Texas Government Code is a civil matter akin to a garnishment action or an action to obtain a turnover order. Harrell, 286 S.W.3d at 317–19. That appeal was brought from the denial of a motion to rescind.