in Re Jesus Gonzalez, Relator

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-21-00302-CR ________________________

IN RE JESUS GONZALEZ, RELATOR

ORIGINAL PROCEEDING

Arising out of the 222nd District Court Oldham County, Texas Trial Court No. OCR-17G-027; Honorable Roland Saul, Presiding

February 10, 2022

DISSENTING OPINION ON MOTION FOR REHEARING EN BANC

Before QUINN, C.J., and PARKER and DOSS, JJ.

Relator, Jesus Gonzalez, has filed and presented to this court a Motion for

Rehearing and or Rehearing En Banc from the Memorandum Opinion, dated January 4,

2022, denying his request for mandamus relief. 1 A majority of the court has voted to deny

1 See In re Gonzalez, No. 07-21-00302-CR, 2022 Tex. App. LEXIS 20 (Tex. App.—Amarillo Jan. 4, 2022, orig. proceeding). the motion for rehearing (in which I did not participate) and to deny the rehearing en banc

(in which I did participate). Because I would not have joined in the original opinion, but

would have instead concurred on different grounds, I dissent from the decision to deny

rehearing en banc and now write to express those different grounds.

THE TRIAL JUDGE ERRED IN SIGNING THE WITHHOLDING ORDER

On July 20, 2017, Relator appeared before the Honorable Roland Saul as an

indigent defendant represented by court-appointed counsel and pleaded guilty to the

offense of driving while intoxicated-third or more. The judge accepted his plea and

sentenced him to four years confinement in the Institutional Division of the Texas

Department of Criminal Justice and assessed a fine of $2,500.00. At the same time, the

judge signed an Order to Withdraw Funds, authorizing the TDCJ to withdraw sums from

Relator’s inmate trust fund for the payment of his fine, court costs, and reimbursement of

his court-appointed attorney’s fees. Because the judge never made a finding that Relator

had the ability to pay his court-appointed attorney’s fees, he erred in entering a

withholding order as to those fees. See TEX. CODE CRIM. PROC. ANN. art. 26.05(g) (West

Supp. 2021). See also Wiley v. State, 410 S.W.3d 313 (Tex. Crim. App. 2013); Cates v.

State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); Mayer v. State, 309 S.W.3d 552

(Tex. Crim. App. 2010).

On November 22, 2021, Relator filed a motion requesting the trial court to rescind

its prior order to withdraw funds as it pertained to $416.00 in court-appointed attorney’s

fees. The trial court has not ruled on that motion. Because the trial court has not ruled

on this motion, Relator has an adequate remedy at law still available to him. Should the

trial court fail or refuse to perform its ministerial duty to rule on the motion that is before

2 the court, Relator has an adequate remedy by way of mandamus to compel a ruling on

that motion. See In re Shead, Nos. 07-14-00309-CV, 07-14-00310-CV, 07-14-00311-CV,

2014 Tex. App. LEXIS 10110, at *3 (Tex. App.—Amarillo Sept. 9, 2014, orig. proceeding),

subsequent appeal at Shead v. State, Nos. 07-15-00164-CV, 07-15-00165-CV, 07-15-

00166-CV, 2015 Tex. App. LEXIS 6596 (Tex. App.—Amarillo June 25, 2015, no pet.);

Snelson v. State, 326 S.W.3d 754, 756 (Tex. App.—Amarillo 2010, no pet.). Furthermore,

should the trial court rule on that motion, but deny the relief requested, then Relator would

have an adequate remedy by way of a timely appeal from the order denying his motion

to rescind the wrongfully issued withholding order. In re Shead, 2014 Tex. App. LEXIS

10110, at *3.

Because I would deny Relator the relief he seeks through this mandamus

proceeding on the basis of his having an adequate remedy at law, grounds different than

those espoused by the majority, I respectfully dissent from the majority decision to deny

en banc reconsideration.

Patrick A. Pirtle Justice

Do not publish.