Johnson v. Tenth Judicial District Court of Appeals at Waco

JOHNSON, Judge In re Matt

54th District Court McLennan

County, Texas, Relator, THE TENTH JUDICIAL DISTRICT

COURT OF AT APPEALS

WACO, Respondent.

No. AP-75898. Criminal of Texas.

Oct. Rehearing Denied Feb.

John Segrest, W. Criminal District At- torney, for Relator. Horn, L.

Jeffrey Van Attorney, State’s Austin, Respondent. for

OPINION

PRICE, J., opinion delivered the of the WOMACK, in JOHNSON, Court which KEASLER, COCHRAN, HERVEY and JJ., joined.

In this proceeding, mandamus Matt Johnson, Judge of the 54th District Court County (relator), McLennan seeks relief from an by order entered the Tenth Court (respondent). Waco In a below, mandamus proceeding the Tenth Appeals required Judge Court of Johnson to vacate an order that he had entered directing the Department Texas of Crimi- (TDCJ) nal Justice funds from withdraw the inmate trust-fund account of Steven (real interest) Frank Goad party in forward those funds to County McLennan in satisfaction of an assessment of costs for pair indecency with a child convictions Goad incurred in the 54th District Court in 2003.1 Although such a withdrawal of expressly by funds is authorized Code,2 of the Texas Government held, the court of nevertheless on strength opinion of its own earlier Keeling,3 In re that Judge Johnson’s order was “void” because the taking the funds from Goad’s inmate trust-fund account provision to that was accom- plished due-process without the guaran- tees prior notice and an opportunity to * * * Goad, party specified See In re Steven Frank in the court order. 2008). (Tex.App.-Waco department shall make withdrawals and payments from an inmate’s account under 501.014(e) (“On 2. See Tex. Gov't Code notifi- according following this subsection court, by department cation shall with- (4) priorities: payment schedule of ... as draw from an inmate's account amount costs[.]"). full for all orders for court fees and pay by the inmate is ordered to order of the department court under this subsection. The (Tex.App.-Waco 3. 227 S.W.3d 391 no shall amake under this subsection pet.). as ordered the court to either the court or mandamus with the application writ Judge Johnson granted be heard. We In his he appeals.5 application court of application writ to file an leave Keeling opinion In re and an cited to deter- in this Court in Abdullah v. Texarkana of appeals abused the court mine whether State,6 of funds arguing taking that re- order that mandamus its discretion to account to sat- inmate trust-fund from his lief. garnish- to a isfy court costs amounted ment, that, the Rules of Civil and because AND PROCEDURAL FACTS garnishment pro- govern that Procedure POSTURE followed, proceed- not which ceedings were to 2003, pled guilty two July In Goad him notice afforded with ings would have indecency him charging with indictments heard, he was opportunity and an judgment Attached to each a child. with process. The court procedural denied costs, a total of assessing a bill of agreed, Judge was and ordered appeals against Goad. More Section 501.014 or- in court costs to rescind the Johnson $724.50 the monies that had been later, in of ders and return years September than three from Goad’s inmate trust-fund withdrawn 2006, an order cor- trial court entered account, holding that the orders were directing number to each cause responding provided had been no because Goad “void” County McLennan pay to the TDCJ to opportunity or to be heard prior notice schedule, Clerk, graduated on a District they before issued.7 inmate trust-fund ac- monies from Goad’s judgment of count in satisfaction appli Judge Johnson then filed his him.4 These orders against court costs Court, of mandamus in this cation for writ pursu- entered purported to be expressly all the due arguing that Goad received 501.014(e) of the Govern- to that he due in the course of process ant was that further proceedings, and attempted pursue to ment Goad Code. to heard is un opportunity notice and orders, trial court’s but when appeal of the assessment of necessary following a formal him that his notified appeals the court of filed and set judgments.8 costs in the We because his subject to dismissal appeal was application to decide Judge Johnson’s timely, he filed notice of appeals abused its the court whether appeal. motion to dismiss him requiring in to rescind his discretion attempting next unsuccessful After from Goad’s in orders to withdraw funds trial court to rescind its ly persuade to account in satisfaction mate trust-fund reflection, court costs.9 On further howev- money, Goad filed an orders return his and Goad, supra, 7. In re at 859. judgments in 2003 and the orders 4. Both the pre- signed by Judge in were Johnson’s office, Judge George Judge Allen. decessor in Johnson cites Endicott-Johnson Cor- Inc., Press, Encyclopedia poration 266 U.S. (1924), for this original 45 S.Ct. 69 L.Ed. appeals manda- 5. The court of had Const, proposition. jurisdiction by virtue of Tex. art. mus 22.221(b)(1). V, § 6 and Tex. Gov't Code jurisdiction required pursue Although to the writ of to re- Applicants are this Court lacks mandamus, appeals compelling reason not the courts of in absent view the decisions of to, original proceeding jurisdiction via courts of before the exercise of their McDaniel, review, Judge, discretionary we can ex- petitions Padilla v. to this Court. Court, original jurisdiction sepa- in a 203rd District ercise our own proceeding determine (Tex.Crim.App.2003). mandamus rate "clearly appeals has whether a court of granting mandamus abused its discretion” (Tex.App.-Texarkana 6. 211 S.W.3d 938 Young Sixth. Court relief. State ex rel. pet.). no costs, er, ... juris- penses pay that lack mandamus the amount we hold application. and dismiss the writ finds that the defendant is able to diction petitioner been pay.”13 acquitted had MATTER? CRIMINAL LAW against him charges argued the trial question any orig jurisdiction The threshold court was without enter an order under Article proceeding inal is whether this fol- lowing acquittal. holding his In jurisdiction to this to be original Court has entertain matter,” a “criminal quoted the Court application relator’s of mandamus. writ 5(c), opinion from our Smith v. Flack:14 V, Article of the Texas Under Constitution, jurisdiction this Court has Undoubtedly, the enforcement of an or- of mandamus “in criminal law pursuant issue writs der to a criminal issued law proceed matters.”10 Whether the instant a statute is criminal law matter as much is, itself, as the issuance of the order ing involves a “criminal law matter” we even think, requires if it this to examine under our case law civil question close 5(c). process. otherwise, in the it V, laws Were For construing Article power this Court’s to decide criminal law reasons now we think that the develop, seriously matters be would eroded or ultimately matter be should left to all together eliminated the incidental appellate jurisdiction ap of the courts of presence of civil law matters.15 peals Supreme and the Texas Court. We that it a “criminal therefore hold is not law Although in we held Smith Flack that matter.” jurisdiction we have mandamus “when a of the subject litiga- criminal law is the

This “Criminal Law Court’s tion,” we have elsewhere observed that Jurisprudence Matters” language this not intended to be a “was meaning definitive statement of the analog present The closest to the case in ”17 ‘criminal law matters.’ jurisprudence our “criminal law matter” is opinion our in That Curry Wilson.11 matter instant involves enforce- dispute case involved “a over a district entered, ability pursuant of an order an judge’s authority to enforce provision of the Penal or the Code Code by” Procedure, which was mandated then-Article pursuant but of Criminal 26.05(e) 501.014(e) of the Code of Proce- Criminal of the Government 26.05(e) Code, dure.12 Article authorized courts on its face “a criminal which is not Although certainly may to order a defendant can afford “to it who law statute.” part apply emanating offset or whole the costs of the to recover costs from in criminal Sec- legal provided, including any judgments prosecutions, services ex- (Tex.Crim. 26.05(e) Appeals, been amended 209 n. 6 13. Former Article has App.2007). redesignated art. as Tex.Code Crim. Proc 26.05(g). V, 5(c) ("Subject Art. See Tex Const. law, regulations may prescribed by such as 1987). (Tex.Crim.App. 14. 728 S.W.2d 784 Judges the Court of Criminal and the power thereof shall have the the writ to issues 15. Id. at 788-89. and, corpus, of habeas in criminal law mat- ters, mandamus, procedendo, the writs of at certiorari.”). 16. Id. prohibition, and 1993). (Tex.Crim.App. 11. 853 S.W.2d 40 Appeals, v. Fourteenth Court Lanford 1993). (Tex.Crim.App. S.W.2d 12. Id. at 43. order,20or, 501.014(e) alterna- an order to a turnover pertain does not exclusive- tion the court tively, garnishment,21 to a writ of ly, primarily, judgments, to such or even ap- that it an appeals determined recovery of costs assessed or even civil) (as Holding order.22 that what Sec- judgments. pealable opposed is a face, essentially tion authorizes provides the statute for with- On its proceeding, ap- the court of garnishment of inmate funds for the drawal fines, and court costs the trial court’s order be- support, peals child civil reversed judgments against issuing pro- civil court had failed to emanating from cause Indeed, ques- opportunity inmate.18 resolution notice and vide the presented by applica- this mandamus tion heard that is afforded to defendants no criminal- requires tion us to scrutinize proceedings under the Texas garnishment So, question arises: Is statute. Rules of Civil Procedure.23 requires matter” that this a “criminal law But the Amarillo and Waco courts of us, incidentally, provi- to examine certain pay have held that an order to resolution, of the civil law for or is sions to Sec- outstanding happens, law matter that primarily civil essentially criminal in tion judgment incidentally, to emanate from State,24 In the Amarillo nature. Gross case, in a criminal but is otherwise that, attempted ap- the court held because related to criminal law at all? 501.014(e) peal from Section “closely related to the criminal case” from Appeals Weigh In The Courts of sprang, appellate which the court costs its appeals of that have ad- courts jurisdiction depended upon govern- rules question dressed this are divided. Some and, no ing appeals; since there is have held that it is a civil matter and express statutory authority providing for subject appeal. therefore to direct Others 501.014(e) order, appeal an from a Section matter, and, that it a criminal have held pur- it an order” for “appealable is not such, it appealable. as is not a criminal poses appeal.25 respect With (as opposed origi- direct to its appeal In Abdullah v. the Texarkana to its mandamus) jurisdiction, Appeals entertained what nal the Waco Court appeal” Appeals example “an from an order has followed the deemed unusual Court court, withdrawing holding funds from an inmate account of the Amarillo a series of 501.014(e).19 that an from a Section Likening under Section such cases (6)as 501.014(e) priority, payment in full for other court In order of Section order, judgment, mandates the withdrawal of funds from an or writ. following purposes: account for the inmate’s 19. 211 S.W.3d at 939. (1) as in full for all orders for support; child § 31.002. 20. Tex. Civ. Prac. Rem.Code (2) payment in full for all as orders restitution; 21. Tex. Civ. Prac. Rem.Code 63.007. (3) payment in full for all orders for as Department reimbursement of the Texas State, supra, 22. Abdullah v. at 940-41 & n. 5. Human Services for financial assistance provided child’s health needs under 941-43, citing P. Id. at 657-79. Code, Chapter Human Resources to a Tex.R. Civ. inmate; child (Tex.App.-Amarillo 24. 279 S.W.3d 791 (4) payment in full for all orders for as costs; pet.). no court fees and (5) payment in full for all orders for as fines; and Id. at*l-*2. 2008). Article 43.07 of the Texas 501.014(e) Code a criminal ease.”26 order “is not, Procedure in rele- provides of Criminal order is Because a order, part: pecuniary each case of “[i]n the Waco vant however, appealable an fine, may and execution issue for the attempt- each of these has dismissed fine and costs.... The execution shall jurisdiction.27 for lack of appeals ed ac- be collected and returned as civil however, Antonio recently, the San Most Consequently, Id. we are unable tions.” the Texarkana Appeals, like Court of that the trial court’s order to conclude court, rejected proposition has involves a criminal law matter as de- 501.014(e) emanating order under Section in Curry.29 scribed a crimi- judgment is itself from a criminal appeals The court of in Reed went on to State,28 matter. In Reed nal law (similarly to the Texarkana hold reasoned: appeals court of Abdullah) trial court’s may in the instant case the order While appealable, order was of, incidental as a result or have arisen jurisdiction.30 On the conferring appellate the trial to, prosecution, a criminal merits, rejected the court not arise over court’s order does garnish- Texarkana court’s view that the governed of a statute enforcement provisions ment of the Rules of Civil Pro- Procedure. of Criminal the Texas Code necessarily govern in all Section cedure fact, provides specifically the order In 501.014(e) proceedings,31 but nevertheless THIS OR- ENTERS “THE COURT that, balance, on to hold on “Reed’s went Code, DER to Government process rights were violated because not con- Reed is Section 501.014....” the merits of the or- regarding his claims authority to as- the trial court’s testing not been heard in forum.”32 der have Instead, against him. sess court must decide au- In the instant cause we dispute is over the trial court’s the constitutes the correct one for un- which view thority to collect the costs assessed 501.014(e) construing ju- our mandamus purposes Gov- of the Texas der section 5(c). V, Is Ann. under Article Section risdiction Code. Tex. Gov’t Code ernment 501.014(e). so under Section legislature the order We note the judgment criminal “closely related” to the that costs in criminal has determined compelled are gave rise to it we may through be collected judgments a “criminal law mat- to conclude that is process. Tex.Code.Crim. execution civil (Vernon hap- matter that Supp. ter”? Or is it civil-law Ann. art. 43.07 Proc. 508, (Tex. State, appealable. is final and trial court’s order 244 S.W.3d 509 26. Zink v. State, 2007, pet.); Phillips v. for the App.-Waco no trial order in this case was court’s 2007, no (Tex.App.-Waco through 244 S.W.3d 510 post-judg collection of court costs pet.). actions, post-judgment process. In civil ment if the may appealed as final orders orders Zink, supra; Phillips, supra; re Mar- In 27. placed the disposes all matters before 601, tinez, (Tex.App.- 1 602 n. * n * garnishment Both orders court. Chudej pet.); v. no Waco appealable. are turnover orders Schultz pet.). (Tex.App.-Waco no S.W.3d 273 Appeals, 810 S.W.2d Jud. Dist. Ct. of Fifth Antonio, 1991).”). (Tex. (Tex. App.-San 28. 269 S.W.3d 2008). 31. Id. at 626 Id. at 622. at 627. Id. ("Having that this Id. at 623 determined civil, the we next address whether matter is think, pens judgment jurisprudential to stem from a criminal most unfortunate consequences. conviction? We conclude it is the latter. illustrate, begin To the we with

Constitutional Construction 5(c) V, observation that Article Section construction, statutory As with only place the Texas Constitu particular juris tion that defines a provision when we construe a of the Texas court’s Constitution, diction “crim phrase, with reference principally guided by we are V, 3(a), inal law matters.” Article language provision itself as the ap Texas Constitution defines the indicator best of the intent of the framers pellate jurisdiction Supreme of the Texas citizenry who drafted it and the who except extending Court as “to all cases adopted language it.33 But if that is less law matters and as otherwise plain than ambiguity, admits of we provided by in this Constitution or law.”35 factors, may resort to extra-textual includ In deciding apply how to “criminal law ing likely consequences adverse of a purposes matters” for of our own manda particular construction.34 From the above jurisdiction, mus we should be mindful of survey of the opinions various of the courts potential effect of our construction subject, on this it should be upon Supreme appellate jurisd Court’s apparent that whether an order under Sec By declaring iction.36 our manda own tion of the Government Code jurisdiction pre mus to reach the issues fits within definition of “criminal law here, very likely sented we would encroach V, 5(c), matters” under Article upon the appellate jurisdiction of the Su Constitution, the Texas as construed preme Court.37 law, our own case is less than clear cut. To construe “criminal law matters” to em Were we to exercise our man presented cause, brace the issues in the jurisdiction instant damus in this we would proceeding have, essentially would cut off any definitive determi- 33.See, e.g., Strippleman, Booth 61 Tex. 34. See 12A Tex.Jur.3d Constitutional Law (“constitutions, (1884) statutes, (2004), ("if § 380 like must 25 at 419 the literal text of a arriving provision be construed ... with the view of at constitutional unclear is or could result, enforcing construing and lead the intention of the conven- to an absurd a court tion.”); State, 429, provision may the Stine v. look outside of the lan- 908 S.W.2d 431 ("In guage (Tex.Crim.App.1995) (plurality interpretation.”). for aid in opinion) its statutes, interpreting practice it is the of this V., 3(a) court to (emphasis concentrate on the literal text 35. Tex Const art. add- ed). meaning. statute in order to ascertain its * * * guided by This Court should be principle interpreting same when It constitu- is well established that a constitutional State, provisions.”); provision Gallagher tional v. should not be 690 construed in iso- 587, lation, (“Turn- (Tex.Crim.App.1985) S.W.2d 591 but as it to and relates interacts with construction, ing provisions. E.g., to the other rules of constitutional constitutional Pierson State, 15, 19-22, v. 147 Tex.Crim. 177 provisions is observed that constitutional S.W.2d 975, (1944). ambiguous open which are not and 977-79 are not to interpretation more than one construction or given regard must their full effect without 37. See State ex rel. Holmes v. Third Court of State, 386, consequences.”); (Tex.Crim. Appeals, Cook v. 902 885 S.W.2d 410-11 471, ("As J., (Clinton, ("criminal (Tex.Crim.App.1995) App.1994) dissenting) S.W.2d 478 step, attempt first we to effectuate the intent law matters” should not be construed differ amendment, 5, ently of the framers of a purposes constitutional Article Section 5 of 5, approved voters who the amend- the Texas Constitution than for Article Sec ment.”) 3). tion

873 answered, finitively by in- either the courts of legal issues underlying nation of 501.014(e) Court, byor this in the course of appeals or- least for Section volved-at proceedings. mandamus court costs from to collect ders issued is The reason judgments. law contrast, By treating the matter as civil appeals have As the courts simple. certainly in almost character means noted, matter is criminal if the uniformly 501.014(e) ap- an order under Section is character, subject not be in it would pealable.41 ap In the context of a direct 501.014(e) because a Section direct peal, legal question can be addressed appealable not constitute order does directly just as it has been resolved— jurisprudence.38 this order under Court’s by the Texarkana and San Anto resolved appeals the courts of or only way The appeals, nio in Abdullah and courts arising Moreover, to address issues long for this Court Reed.42 as as the issue is matter,” applica- regarded be via not as a “criminal from such an order would mandamus, among in inconsistencies the various as this tions for writ courts of constru appeals applying and context, case. But the mandamus ing recover legal issue particular need resolve emanating judgments from criminal (and sufficient It is often involved.39 subject by to final would be resolution disposing of a preferable) therefore Supreme appellate juris Court under its merely a court proceeding for diction. underlying legal issue to conclude that underlying legal yet indeed,

is as unsettled.40 Supreme the Texas Court And process does question, e.g., whether recently granted petition for review that a Section require just such a case.43 Harrell v. State prior op- squarely presents question inmate notice and an both the provide an heard, need never be de- whether an order portunity long upon any showing, it its relief lesser abuses ante. This Court has 38. See note subject and is to a writ of manda- right appeal must be con discretion held that the State, Id., quoting v. by E.g., v. 617 mus from this Court. ferred statute. Galitz Lanford Appeals, supra, at (Tex.Crim.App.1981); Rush Fourteenth Court S.W.2d State, (Tex.Crim. ing See, e.g., Young App.2002); State ex rel. v. Sixth Court see also Kutzner ("this (“we say (Tex.Crim.App.2002) supra, Appeals, at 213 cannot S.W.3d of the by appeal when it is rule announced the court of is will entertain an provenance when it that the trial expressly authorized statute and of such indubitable duty to definition’ of a crimi court in this case had a ministerial related to the ‘standard case."). Ap apply facts of this case to reach a the Waco Court of it to the nal And as observed, particular authorizes in the exercise of what would peals has statute result "[n]o manifestly judicial under section constitute a from an order otherwise State, function.”). 501.014(e).” Chudej supra, at 273. v. 5; Reed, Abdullah, relief, supra, at & n. 41. 940-41 a rela- 39. In order to obtain mandamus supra, at 623. adequate he had no tor must establish that law, he remedy at and that the action seeks not, not, any express Young We need and do ex rel. compel is ministerial State opinion have whether these courts Appeals, supra, at 210. He can Court Sixth correctly. demonstrating the matter showing by resolved the latter make right relief he he has a "clear to the (Tex. WL say "the law he invokes Harrell seeks”—that is to 13, 2007) (No. definite, App.-Amarillo, Aug. 07-06- unambiguous, unquestionably and 0469-CR, 07-06-0470-CR), granted review applies indisputable facts of the case.” 29, 2008). (Aug. appeals grants mandamus Id. If a recovery for the of courts costs CONCLUSION after a criminal prosecution is a civil mat- Accordingly, we hold that the instant ter, whether, is, and assuming that it proceeding does not involve a “criminal process is violated a court when issues Therefore, matter.” law lack original we such an order affording without the affect- jurisdiction. mandamus application ed inmate notice an opportunity and writ mandamus is dismissed.45 heard. Were towe construe such an order in the instant cause to constitute “crimi- KELLER, P.J., filed a dissenting matter,”

nal generate po- we would opinion in tential conflict which MEYERS between our bifurcated and highest appellate Texas, HOLCOMB, JJ., courts joined. should the Supreme ultimately regard KELLER, P.J., dissenting opinion in character,

matter as civil and thus sub- HOLCOMB, JJ., which MEYERS and (be- ject to its appellate jurisdiction own matter”). joined. cause not a “criminal law We think that as a matter practicality,44 “Undoubtedly, the enforcement of an or- public policy, comity and between our pursuant der issued to a criminal statute is highest courts, should favor a construc- a criminal law matter as much as the tion of “criminal law matters” that will itself, issuance of the order even if it re- keep the lines of appellate direct review quires this Court to examine civil laws open, so that the legal issues can be con- Smith, process.”1 Under the nature directly

fronted finally resolved, and over originally of the issued order determines one that will force the parties affected whether a subsequent enforcement pro- extraordinary resort remedies that do ceeding involves a criminal law matter. necessarily the underlying resolve le- gal Because the order questions may requiring even result in fore- withdraw- closing the possibility final al of inmate resolu- funds is an enforcement mech- tion. anism for the of costs ordered say practicality 44. We poten- only because of the by way to review of a writ of mandamus- complication tial for that could arise hybrid, subject should or some kind of to no later we deem an order for TDCJ to withdraw review at all? inmate funds to Section satisfy criminal court costs to be itself a Legislature may We note that "[t]he confer "criminal law matter.” Consider the follow- original jurisdiction Supreme on the Court to ing hypothetical: Suppose TDCJ on the same issue writs of ... mandamus in such cases as orders, day received two may entered on the specified, same except against the Governor day, from V, two district 3(a). courts in two different § State.” Tex. art. And Const, Code, counties. The first order emanated from a under the Supreme Government judgment in assessing a civil case expressly court costs Court is authorized to issue writs of inmate, against the against while the second appeals, “agree- court of judgment, emanated from a principles regulating able to the also of law those against 22.002(a). assessed court Code, writs[.]” him. Both or- Tex Gov't ders would be authorized under Section 501.014(e)(4), Flack, and so TDCJ would have no 1. Smith v. 788-89 ready statutory by prioritize criteria which to (Tex.Crim.App.1987); Curry see also v. Wil son, ensuing litigation them. Would over 853 S.W.2d 43 which priority Smith); order should take in the event (Tex.Crim.App.1993)(quoting State of insufficient funds the inmate’s account ex. rel Appeals, Holmes v. Third Court matter, regarded subject as a civil law to a (Tex.Crim.App.1994)(quoting S.W.2d matter, appeal, Smith). later subject criminal law cases, judgments of conviction criminal ed to the Appeals, Third Court of and that validity granted the of the order is a court withdrawal the defendant’s motion to criminal matter. enjoin law the State proceeding from with the Though injunction execution.8 the arose Smith, judge In the trial an issued lawsuit, from a civil held that it was a pursuant Code Criminal Proce- criminal law matter because it anwas or- in attorneys dure awarded fees $2500 der staying the execution of a death sen- attorney Smith, to represented who had tence.9 indigent prosecu- defendant in a criminal tion.2 Smith then presented the claim to Court costs assessed in prose- criminal county payment.3 the auditor for Because long cutions have been considered to be the fee permit- award exceeded what was incident to the enforcement of the criminal schedule, by county ted the fee the auditor law.10 The Code Criminal Procedure board, the claim to a forwarded review authorizes the imposition and collection of board, after a recommendation from the prosecutions.11 In- County deed, the ap- Commissioners’ Court the Code of Criminal Procedure out- proved payment a reduced fee lines some for enforcing mechanisms the $1700.4 that, explained the though We even attor- order of of costs.12 Though the ney attempting compel was not to a trial statutory basis for the enforcement mecha- judge fees, to award attorneys he nism at was issue here is a section of the award, attempting judge’s a trial Code, Government rather than the Code of enforce and an action Procedure, to enforce an order issued Criminal it is nevertheless an pursuant Proce- Code Criminal enforcement mechanism for an order that dure was as much a criminal matter as was issued to the Code of Crimi- original order that was issued.5 nal Procedure. The court costs in this case by judgments were ordered Holmes, In a defendant who con- conviction, pur- which were orders issued victed and sentenced to death filed a civil suant to a criminal statute. Because the sought suit that compel Board of withdrawal order is a mechanism to en- Pardons and Parole to hold a on hearing force the judgments, validity request his for clemency.6 The trial court withdrawal order is criminal law matter. temporary injunction entered a requiring clemency Board to hold a hearing Though on the court cites what it believes 10, 1993, August or before or policy reschedule reasons to construe the with- the defendant’s execution until matter, such drawal order as a civil law those hearing could be held.7 appeal- purported policy The Board reasons are not sufficient 2. 728 S.W.2d at 787. The case also ad- Id. 7. attorneys. dressed similar claims other Id. brevity clarity, at 788. For the sake of I 8. Id. holding will respect focus on Court's with attorney Smith. Id. at 394. 9.

3. Id. at 787. (1847). 10. Dixon v. Tex. 482-84 4. Id. at 788. 42.15, 11. Tex.Code Crim Proc. arts. 42.16. Id. at 788-89. Id., (confinement jail), 43.03 43.09 (work 885 S.W.2d at 391. program). authority possesses the 42.3. This Court deviating from our hold-

justification for jurisdic- of appeal for want to dismiss ings in and Holmes. Smith par- all giving proper notice to tion after dissent. respectfully I 2006, the clerk February On ties. Id. in accor- Appellant, notified of this Court Proce- Appellate Texas Rule of dance with 42.3, may not have that this Court dure ap- because it jurisdiction appeal over this KINGS, INC., Appellant, SOUTHWEST timely appeal notice of peared the was ap- that this Appellant advised filed. was CHIROPRACTIC, Appellee. VISION any party unless peal would be dismissed continuing appeal for could cause show

No. 08-06-00039-CV. receipt from the date of of days ten within Texas, Appeals Court failed to re- Appellant this letter. Court’s El Paso. notice. spond to this Court’s April Accordingly, Appellant’s appeal notice of untimely appeal dismiss the and we was Tex.R.App.P. jurisdiction. for See want 42.3(a). Paso, appel- for Hughes, El

Thomas S. lant. Firm, Lovett, El Lovett Law

Robert L. Paso, appellee. BARAJAS, C.J., McCLURE,

Before CHEW, JJ. MOSS-SCHULZE, Appellant, Barbara

OPINION CHEW, DAVID WELLINGTON

Justice. CORPORATION, EMC MORTGAGE attempting appeal from

Appellant is Appellee. on the trial court rendered judgment of No. 08-07-00098-CV. 7, 2005, of contract in a breach December did not file a motion for Appellant Texas, action. motion post-judgment or other new trial El Paso. appellate deadline.

which would extend the May Consequently, appeal the notice of was Rehearing June Overruled thirty days judgment after the within Tex.R.App.P. January 26.1. On signed.

31, 2006, appeal. filed a notice Appellant more than appeal

The notice of was filed judgment and was there- thirty days after untimely. fore Id. on its Pending before the Court own of this is the dismissal initiative Tex.R.App.P. See jurisdiction. want

Case Details

Case Name: Johnson v. Tenth Judicial District Court of Appeals at Waco

Court Name: Court of Criminal Appeals of Texas

Date Published: Oct 29, 2008

Citation: 280 S.W.3d 866

Docket Number: AP-75,898

Court Abbreviation: Tex. Crim. App.