Patrick Wayne Boren v. State

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-19-00009-CV No. 10-19-00010-CV No. 10-19-00011-CV No. 10-19-00012-CV No. 10-19-00013-CV

PATRICK WAYNE BOREN, Appellant v.

THE STATE OF TEXAS, Appellee

From the 54th District Court McLennan County, Texas Trial Court Nos. 1997-543-C, 1999-63-C2, 2005-1640-C2, 2005-1165-C2 and 2009-762-C2

ABATEMENT ORDER

In each of the cases underlying these appeals, the trial court signed an order to

withdraw funds from Appellant Patrick Wayne Boren’s inmate account with the Texas

Department of Criminal Justice. Boren thereafter filed in each case a pro se “Motion for

the Court to Rescind the Court’s Garnishment Orders and the Court’s Withdrawal Notifications.” On December 14, 2018, the trial court signed an order in each case,

denying Boren’s motion.

On January 8, 2019, Boren filed notices of appeal from the trial court’s December

14, 2018 orders. But on February 11, 2019, the trial court sua sponte signed in each case an

“Order Withdrawing Garnishment Order,” which granted Boren’s “Motion for the Court

to Rescind the Court’s Garnishment Orders and the Court’s Withdrawal Notifications”

and “Ordered, Adjudged and Decreed that the Garnishment Order entered in this cause

is withdrawn . . . .” In each of these appeals, Boren has therefore filed a “Motion to

Withdraw His Appeal as Moot.”1

Section 501.014(e) of the Texas Government Code governs the withdrawal of funds

from an inmate’s account for the recovery of fines and court costs. See TEX. GOV’T CODE

ANN. § 501.014(e). Proceedings under section 501.014(e) “are civil in nature and not part

of the underlying criminal case.” Harrell v. State, 286 S.W.3d 315, 316 (Tex. 2009).

Proceedings under section 501.014(e) are therefore governed by the Rules of Civil

Procedure, and generally, under the Rules of Civil Procedure, a trial court’s plenary

power expires thirty days after a judgment or appealable order is signed unless it is

extended, such as by a timely filed motion for new trial. See TEX. R. CIV. P. 2, 306a(1),

329b(d).

1Boren’s motion does not contain proper proof of service. To expedite this matter, we will implement Texas Rule of Appellate Procedure 2 and suspend Rule 9.5’s proof-of-service requirement for this document only. See TEX. R. APP. P. 2, 9.5. The Clerk of this Court is ordered to forward a copy of these documents to the appellee immediately. Boren v. State Page 2 Here, the trial court’s December 14, 2018 order denying Boren’s “Motion for the

Court to Rescind the Court’s Garnishment Orders and the Court’s Withdrawal

Notifications” was a final, appealable order in each case. See Owen v. State, 352 S.W.3d

542, 545 (Tex. App.—Amarillo 2011, no pet.); Ramirez v. State, 318 S.W.3d 906, 908 (Tex.

App.—Waco 2010, no pet.). No timely post-judgment motions were filed. It appears that

the trial court’s plenary power to vacate, modify, correct, or reform the December 14, 2018

order in each case therefore expired on January 14, 2019. See TEX. R. CIV. P. 4, 306a(1),

329b(d). For these reasons, we question whether the trial court had jurisdiction to sign

the February 11, 2019 “Order Withdrawing Garnishment Order” in each case or whether

the February 11, 2019 orders are void. See Martin v. Tex. Dep’t of Family & Protective Servs.,

176 S.W.3d 390, 393-94 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (“Judicial action

taken after the trial court’s plenary power has expired is void.”).

We thus abate these appeals for a period of 14 days from the date of this Order,

thereby reinvesting the trial court with jurisdiction over the proceedings.

During this period of abatement, if the trial court signs an order that withdraws,

or sets aside, the orders the trial court signed on December 14, 2018, similar in content

and intent to that document signed on February 11, 2019, purporting to withdraw its

orders signed on December 14, 2018, then it appears these appeals will become moot. If

the trial court takes no action with regard to withdrawing or setting aside the December

14, 2018 orders during the period of the ordered abatement of these appeals, the appeals

will be reinstated and will be processed and considered in due course.

Boren v. State Page 3 The trial court clerk is ordered to file a supplemental record in these proceedings

containing any order signed by the trial court during the period that these proceedings

are abated as ordered herein, within 28 days from the date of this Order.

Before Chief Justice Gray, Justice Davis, and Justice Neill Appeal abated Order issued and filed March 27, 2019

Boren v. State Page 4