CHARLES MARTIN BRYANT APPELLANT v. THE STATE OF TEXAS APPELLEE

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Court of Appeals of Texas, Amarillo.

CHARLES MARTIN BRYANT, APPELLANT v. THE STATE OF TEXAS, APPELLEE

NO. 07-10-0358-CV

Decided: February 25, 2011

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

MEMORANDUM OPINION

On September 10, 2010, Appellant, Charles Martin Bryant, filed a notice of appeal challenging an Order to Withdraw Inmate Funds 1 entered by the Honorable Abe Lopez 2 on April 26, 2010.   By order dated October 5, 2010, this Court concluded that no appealable order had been entered and found Appellant's notice of appeal to be premature.  Bryant v. State, No. 07-10-00358-CV, 2010 Tex.App. LEXIS (Tex.App.-Amarillo Oct. 5, 2010, no pet.).   Relying on Harrell v. State, 286 S.W.3d 315 (Tex.2009), this appeal was abated for ninety days to allow Appellant an opportunity to obtain a ruling on his pending motion challenging the withdrawal notification.

Generally, an appeal may be taken only from a final judgment or order.   See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2001).   The Texas Supreme Court has determined that an “order” issued pursuant to section 501.014(e) of the Texas Government Code, is not an order;  rather, it is a “notification by a court” directing prison officials to withdraw funds from an inmate's account.  Harrell, 286 S.W.3d at 316 n.1. In Harrell, the Court concluded that receipt of a copy of the withdrawal notification and an opportunity to be heard (Harrell's motion to rescind) 3 satisfied the requirements of due process.  Id at 320-21.

Texas appellate courts have jurisdiction only over final orders or judgments unless a statute permits an interlocutory appeal.   See Ogletree v. Matthews, 262 S.W.3d 316, 319 n.1 (Tex.2007).   The denial of a motion to modify, correct, or rescind a withdrawal notification is an appealable order.   See Ramirez v. State, 318 S.W.3d 906, 908 (Tex.App.-Waco 2010, no pet.).   Jurisdiction of an appellate court is never presumed;  if the record does not affirmatively demonstrate the appellate court's jurisdiction, the appeal must be dismissed.   See El-Kareh v. Texas Alcoholic Beverage Comm 'n, 874 S.W.2d 192, 194 (Tex.App.-Houston [14th Dist.] 1994, no writ).

The deadline set by the October 5 order of this Court for Appellant to obtain an appealable order lapsed on January 3, 2011.   An inquiry to the Randall County District Clerk revealed that, subsequent to October 5, 2010 and prior to that deadline, no action was taken by Appellant and no orders were entered by the trial court.   Appellant was then notified by this Court, in writing, to show cause why this appeal should not be dismissed for want of jurisdiction.   In response, Appellant filed a Petition for Writ of Mandamus requesting this Court to compel the Honorable Abe Lopez to rescind the withdrawal notification.4  As Appellant has yet to obtain an appealable order, we conclude the record before us does not invoke our jurisdiction and we dismiss this purported appeal for want of jurisdiction, without prejudice.

FOOTNOTES

FN1. This document is not an “order” in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding.   The controlling statute, Tex. Gov't Code Ann. § 501.014(e) (West Supp.2010), 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 id. at § 501.014(e)(1)-(6).   See also Harrell v. State, 286 S.W.3d 315, 316 n.1 (Tex.2009).   This document is more akin to a judgment nisi.   A judgment nisi, commonly used in bond forfeiture proceedings, 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..  FN1. This document is not an “order” in the traditional sense of a court order, judgment, or decree issued after notice and hearing in either a civil or criminal proceeding.   The controlling statute, Tex. Gov't Code Ann. § 501.014(e) (West Supp.2010), 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 id. at § 501.014(e)(1)-(6).   See also Harrell v. State, 286 S.W.3d 315, 316 n.1 (Tex.2009).   This document is more akin to a judgment nisi.   A judgment nisi, commonly used in bond forfeiture proceedings, 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.

FN2. Retired Judge, sitting by assignment.   See Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005)..  FN2. Retired Judge, sitting by assignment.   See Tex. Gov't Code Ann. § 75.002(a)(3) (West 2005).

FN3. The trial court denied Harrell's Motion to Rescind.   See Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex.App. LEXIS 6416, at *2 (Tex.App.-Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex.2008)..  FN3. The trial court denied Harrell's Motion to Rescind.   See Harrell v. State, Nos. 07-06-0469-CR, 07-06-0470-CR, 2007 Tex.App. LEXIS 6416, at *2 (Tex.App.-Amarillo Aug. 13, 2007), rev'd, 286 S.W.3d 315 (Tex.2008).

FN4. By an opinion issued this date in cause number 07-11-0052-CV, Appellant's Petition for Writ of Mandamus was denied..  FN4. By an opinion issued this date in cause number 07-11-0052-CV, Appellant's Petition for Writ of Mandamus was denied.

Patrick A. Pirtle Justice

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