Danny Lee Shead v. State, 07-15-00165-CV

Appellant Danny Lee Shead was convicted of sexual assault on April 1, 1996.
In February 2010 the trial court entered an order to withdraw funds from Shead’s inmate trust account under Tex. Gov’t Code § 501.014(e); a nunc pro tunc order correcting the withdrawal was filed May 22, 2014.
Shead filed objections and a motion to rescind the withdrawal; the trial court denied those motions on January 8, 2015. A prior attempted appeal was dismissed for lack of jurisdiction; Shead then filed this restricted appeal.
Shead contends the nunc pro tunc withdrawal order violated his due process rights and was entered after the trial court’s plenary power expired (i.e., impermissible correction of judgment).
The State argues (1) procedural due process was satisfied under Harrell v. State because Shead received notice and an opportunity to be heard post-withdrawal; (2) the nunc pro tunc order corrected a clerical discrepancy in the bill of costs (a permissible correction) and inured to Shead’s benefit; (3) delay in collection does not bar assessment or withdrawal of costs.
The State concedes the inclusion of a $1,000 fine was improper because the fine was not part of the April 1, 1996 sentence and thus not correctable by nunc pro tunc.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court violated due process by entering/ enforcing a nunc pro tunc order to withdraw inmate funds	Shead: Due process violated because the court lacked plenary power and the nunc pro tunc order withdrew funds without required procedural protections	State: Under Harrell, notice and post-withdrawal opportunity to be heard are sufficient; Shead received notice and challenged the withdrawal	Court: No due process violation — notice and opportunity to be heard provided satisfy Mathews balancing per Harrell
Whether the nunc pro tunc order was a permissible correction (clerical) after plenary power expired	Shead: The court lacked authority to modify or enter such an order after plenary power expired; the correction was substantive	State: The correction was clerical (bill of costs amount), supported by records, credited payments and removed appointed counsel fees — permissible nunc pro tunc correction	Court: The correction of costs was a clerical correction and permissible; however, inclusion of an un-imposed $1,000 fine was not correctable by nunc pro tunc
Whether delay in collecting costs bars enforcement (laches/estoppel/adverse possession)	Shead: Long delay (14 years) prevents collection; equitable defenses apply	State: Delay does not bar the State from recouping court costs from inmate trust account	Court: Delay is not a bar to collection; equitable defenses do not prevent enforcement

Harrell v. State, 286 S.W.3d 315 (Tex. 2009) (notice and post-withdrawal opportunity to be heard satisfy due process for inmate fund withdrawals under Mathews balancing)
Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (three-factor test for what process is due)
Escobar v. Escobar, 711 S.W.2d 230 (Tex. 1986) (distinguishes clerical errors correctable nunc pro tunc from judicial errors requiring bill of review)
Andrews v. Koch, 702 S.W.2d 584 (Tex. 1986) (definition and limits of clerical error corrigible by nunc pro tunc)
Sorsby v. State, 624 S.W.2d 227 (Tex. App.—Houston [1st Dist.] 1981) (delay in State’s collection of costs does not bar enforcement)