It’s up to the Texas Supreme Court to decide whether an inmate must receive notice or a chance to speak out before prison officials, acting on a court order, can withdraw money from the inmate’s prison trust account to pay court costs.

In a 6-3 decision Oct. 29, the Court of Criminal Appeals concluded in In Re: Johnson that a court order to pay court costs pursuant to Texas Government Code §501.014(e) involves a civil-law matter.

Holding that Johnson does not involve a “criminal law matter,” the CCA dismissed the petition for a writ of mandamus that 54th District Judge Matt Johnson of Waco brought against the 10th Court of Appeals in February. In his petition, Johnson asked the CCA to require Waco’s 10th Court to withdraw its January mandamus order against Johnson in In Re: Goad, an inmate trust account case. The 10th Court’s mandamus order compelled Johnson to withdraw an order that required prison officials to take money out of Stevin Frank Goad’s trust account to pay court costs. [ See the court's opinion.]

In 2003, Goad pleaded guilty to seven counts of indecency with a child. To recover court costs, the 54th District Court ordered the Texas Department of Criminal Justice (TDCJ) in September 2006 to withdraw funds from Goad’s trust account. In 2007, Goad petitioned the 10th Court for a writ of mandamus to compel Johnson, who took the bench in 2007, to withdraw the order. The 10th Court conditionally granted the petition in January. [ See "Trial Judge Seeks Mandamus Against 10th Court in Inmate Suit," Texas Lawyer , March 31, 2008, page 1.]

Neither Johnson nor Waco solo John Kuchera who represents Goad returned telephone calls seeking comment before presstime Oct. 30. McLennan County Criminal District Attorney John Segrest, who represents Johnson, says through a spokeswoman that he has not read the CCA’s opinion.

The controversy in Goad and other suits inmates have brought to challenge court orders that required TDCJ to take money from their trust accounts revolve around §501.014(e). In 1993, the Texas Legislature passed the Government Code provision, which requires TDCJ to withdraw money from an inmate’s trust account to pay, among other things, court costs assessed against the inmate. In 2005, the Legislature passed Texas Code of Criminal Procedure Art. 103.0033, which requires large municipalities and counties to improve on collecting court costs to avoid forfeiture of certain fees they retain from the revenue they collect. Inmates have filed suits against the state in response to trial court orders requiring TDCJ to tap their prison trust accounts to recover court costs. [ See "Inmate Trust Accounts on High Courts' '08-'09 Dockets," Texas Lawyer , Sept. 15, 2008, page 21.]

Intermediate courts of appeals have disagreed on whether a trial court should issue an order to withdraw an inmate’s funds as part of the criminal proceedings or in separate civil proceedings. CCA Presiding Judge Sharon Keller wrote in a dissenting opinion in Johnson that such an order must come in a criminal proceeding. In January 2007, a unanimous 6th Court of Appeals in Texarkana held in Abdullah v. State that the state should have initiated garnishment proceedings, as permitted under Texas Civil Practice & Remedies Code §63.007(a), to withdraw an inmate’s money. But in a 2-1 decision in June 2007′s In Re: Keeling, the 10th Court found that a court order for withdrawing money from an inmate’s trust account came in a criminal proceeding and held the order void because it was issued without notice to the inmate.

In October 2007, inmate Walter E. Harrell filed a petition for review with the state Supreme Court. According to Harrell’s petition, an order that the 121st District Court in Brownfield issued in 2006, without notice to Harrell, resulted in the garnishment of his prison trust account to pay court costs assessed him for 1997 and 2003 convictions on drug charges. As noted in the petition, Harrell appealed to Amarillo’s 7th Court of Appeals, which dismissed the appeal on a jurisdictional issue in August 2007. Harrell then appealed to the Supreme Court, which will hear arguments in Harrell v. State on Nov. 13.

Over to You

In deciding Johnson, the CCA punted the due-process question raised in the inmate trust account cases to the Supreme Court.

“Were we to construe such an order in the instant cause to constitute a ‘criminal law matter,’ we would generate a potential conflict between our bifurcated highest appellate courts in Texas, should the Supreme Court ultimately regard the matter as civil in character, and thus subject to its own appellate jurisdiction,” CCA Judge Tom Price wrote for the majority.

James C. Scott, a trial associate with Gardere Wynne Sewell in Dallas who represents Harrell pro bono in the case before the Supreme Court, says he thinks the CCA majority in Johnson is right. “They agree with our reading of the Government Code,” Scott says of the CCA’s decision.

What Harrell and other inmates are disputing with regard to the withdrawal orders is a trial court’s authority to collect on costs, Scott says. In doing so, trial courts move into the realm of civil jurisdiction, he says.

But according to Keller’s dissenting opinion in Johnson, court costs assessed in criminal prosecutions are incidental to the enforcement of the criminal law. “Because the withdrawal order is a mechanism to enforce the judgments, the validity of the withdrawal order is a criminal law matter,” she wrote. Judges Lawrence Meyers and Charles Holcomb joined Keller in the dissent.

Jason Bujnosek, an assistant county attorney for Terry County who will argue Harrell before the state Supreme Court, did not return a telephone call. The state argued in its brief that the Supreme Court does not have jurisdiction in Harrell, because the case is “a criminal action.”

Mary Alice Robbins’ e-mail address is