Hernando Ramirez v. State

• Court: Court of Appeals of Texas
• Decided: May 19, 2010
• Docket: 10-10-00157-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00157-CV

HERNANDO RAMIREZ, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court No. 2003-745-C

OPINION

Hernando Ramirez attempts to appeal the trial court’s order of withdrawal of

court costs and fees from Ramirez’s inmate account.1 TEX. GOV’T CODE ANN. §

501.014(e) (Vernon Supp. 2009). The Clerk of this Court notified Ramirez that we

questioned our jurisdiction because it appeared there was no appealable order.

1 Courts have frequently referred to these as inmate “trust” accounts. The term “trust” has been removed from their statutory references. Act of 1989, 71st Leg., ch. 212, § 2.01, eff. Sept. 1, 1989, amended by Act of 1999, 76th Leg., ch. 62, §§ 8.10, 19.02(8), eff. Sept. 1, 1999 (current version at TEX. GOV’T CODE ANN. § 501.014 (Vernon Supp. 2009)). They are simply inmate accounts. While there may be a custodial relationship between the Department and the inmate as to the money in the account, an issue not decided by us today, there is certainly no trustee/beneficiary relationship wherein the Department is burdened with all the duties of a trustee with regard to the inmate’s money. Ramirez responded that the trial court’s order for withdrawal is final and that he is

being denied his property without due process of law. Because we disagree with

Ramirez about the finality of the trial court’s order, we dismiss the appeal.

There is no final order to be appealed. Although called an “order,” the

document Ramirez is seeking to have reviewed is nothing more than the notice to the

Texas Department of Criminal Justice that a judgment has been rendered against

Ramirez and that, pursuant to the statute, the Department should withdraw money

from his inmate account. TEX. GOV’T CODE ANN. § 501.014(e) (Vernon Supp. 2009). As

the statute states:

On notification by a court, the department shall withdraw from an inmate's account any amount the inmate is ordered to pay by order of the court under this subsection. . . The department shall make a payment under this subsection as ordered by the court to either the court or the party specified in the court order. The department is not liable for withdrawing or failing to withdraw money or making payments or failing to make payments under this subsection. . . .

Id. (emphasis added); see also In re Rosin, 256 S.W.3d 925, 925 (Tex. App.—Waco 2008,

C.J. Gray dissenting to request for response).

When the required notice of withdrawal of money from an inmate account is

sent to the Texas Department of Criminal Justice, regardless of its form, the inmate has

an opportunity to be heard by the trial court about the amount to be withdrawn. See

Harrell v. State, 286 S.W.3d 315, 321 (Tex. 2009). This “opportunity” to be heard does not

have to be before the notice is provided to the inmate to fulfill the minimum

requirements of due process. As the Texas Supreme Court stated, “We hold an inmate

is entitled to notice just as happened here (via copy of the order, or other notification,

Ramirez v. State Page 2 from the trial court) and an opportunity to be heard just as happened here (via motion

made by the inmate [directed to the trial court]) -- but neither need occur before the

funds are withdrawn. Moreover, appellate review should be by appeal, as in analogous

civil post-judgment enforcement actions.” Id.

Ramirez has not filed anything in the trial court asking for an opportunity to be

heard regarding the amount of money to be withdrawn from his inmate account. If he

has not already had the opportunity to challenge the specific amount of the judgment to

be withdrawn from his account, such as by direct appeal of the original judgment,

Ramirez’s review of the trial court’s action will be after he has challenged the court’s

notice/order by motion, thus giving the trial court the opportunity to correct it if it is

erroneous or thereby preserve the error for appellate review. Only when properly

challenged and denied relief is there a trial court order that is final from which the

inmate, Ramirez, can appeal. Thus, at this juncture, he has no adverse ruling for this

Court to review.

Accordingly, this appeal is dismissed.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Reyna, and Justice Davis Appeal dismissed Opinion delivered and filed May 19, 2010 [CV06]

Ramirez v. State Page 3