Donny Lee Bretz v. The State of Texas

Donny Lee Bretz, an inmate proceeding pro se and in forma pauperis, appeals

the trial court’s order denying his motion to rescind an order to withdraw funds from

his inmate account. We affirm.

The jury convicted Appellant of murder in 1985 in Cause No. A-17,040 in the

70th District Court of Ector County and assessed his punishment at confinement for

a term of ninety-nine years. The jury additionally assessed a fine in the amount of $10,000. Approximately twenty-seven years later, a document entitled “ORDER

TO WITHDRAW FUNDS” was signed and entered in the original criminal cause

number. We will refer to this order as a “withdrawal notification.” See TEX. GOV’T

CODE ANN. § 501.014(e) (West 2012); Harrell v. State, 286 S.W.3d 315, 316 n.1

(Tex. 2009). The withdrawal notification was addressed to the Texas Department

of Criminal Justice, and it advised the Department that Appellant had been assessed

“court costs, fees and/or fines and/or restitution” in the amount of $10,000. The

withdrawal notification also indicated that it was issued pursuant to Section 501.014.

The withdrawal notification directed the Department to withhold the amount of

$10,000 from Appellant’s inmate account.

On August 5, 2013, Appellant sent a letter regarding his “MOTION TO

RESCIND ORDER TO WITHDRAW FUNDS FROM INMATE TRUST FUND

ACCOUNT.” The trial court denied the motion on August 21, 2013. On appeal,

Appellant challenges the denial of the motion in a single issue. He asserts that the

trial court did not “have the means of collection of financial portions” of the

judgment of conviction. He also contends that the withdrawal notification was

improper because he had previously been determined to be indigent.

In Harrell v. State, the Texas Supreme Court held that a withdrawal

notification directing prison officials to withdraw money from an inmate account

pursuant to Section 501.014(e) is a civil matter akin to a garnishment action or an

action to obtain a turnover order. Harrell, 286 S.W.3d at 317–19. The inmate’s due

process rights are satisfied if he receives notice of the withdrawal notification and

an opportunity to contest the dollar amount and statutory basis of the withdrawal in

the form of a motion to rescind or modify the withdrawal notification. Id. at 320–

21. The trial court’s disposition of such a motion creates an appealable order. See

Ramirez v. State, 318 S.W.3d 906, 908 (Tex. App.—Waco 2010, no pet.). We

review a trial court’s decision whether to deny a motion contesting a withdrawal notification under an abuse of discretion standard. Williams v. State, 332 S.W.3d

694, 698 (Tex. App.—Amarillo 2011, pet. denied).

Contrary to Appellant’s assertion, Section 501.014(e) provides a means to the

trial court to collect the financial portion of his judgment of conviction. The statute

provides a postjudgment collection mechanism for the trial court to enforce a money

judgment by seizing funds to satisfy the monetary portion of the judgment. Harrell,

286 S.W.3d at 319. Furthermore, the statute specifically permits the collection of

“all orders for fines.” GOV’T § 501.014(e)(5).

The withdrawal notification required the withdrawal of $10,000 from

Appellant’s inmate account. This is the same amount of the fine assessed by the jury

as reflected in the original judgment of conviction and sentence. A recitation in the

judgment, such as the one here assessing a fine of $10,000, creates a binding

presumption of regularity absent direct proof to the contrary. Williams, 332 S.W.3d

at 699–700; see Johnson v. State, 72 S.W.3d 346, 349 (Tex. Crim. App. 2002).

Therefore, we conclude that the fine was properly collectable. See Williams, 332

S.W.3d at 700.

With respect to Appellant’s complaint based upon his indigence, a defendant

may not be ordered to reimburse court-appointed attorney’s fees without evidence

of an ability to pay. Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010).

However, fines and legislatively mandated fees and costs may be withdrawn from

an inmate’s account without regard to his ability to pay. In re Bryant, No. 07-11-

0052-CV, 2011 WL 677340, at *2 (Tex. App.—Amarillo Feb. 25, 2011, orig.

proceeding); see Armstrong v. State, 320 S.W.3d 479, 482–83 (Tex. App.—Amarillo

2010) (Pirtle, J., concurring), rev’d in part on other grounds, 340 S.W.3d 759 (Tex.

Crim. App. 2011). Such fines and fees are properly collectable by means of a

withdrawal notification regardless of a defendant’s ability to pay. Snelson v. State,

341 S.W.3d 582, 585 (Tex. App.—Amarillo 2011, no pet.); see Williams, 332

S.W.3d at 700. Accordingly, we overrule Appellant’s sole issue.

This Court’s Ruling

We affirm the order of the trial court denying Appellant’s “MOTION TO

RESCIND ORDER TO WITHDRAW FUNDS FROM INMATE TRUST FUND

ACCOUNT.”