Opinion
No. 07-16-00200-CV
06-20-2016
IN RE JARROD FLAMING, RELATOR
ORIGINAL PROCEEDINGS
ON MOTION FOR REHEARING
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Jarrod Flaming has moved the court to rehear our opinion denying his petition for writ of mandamus. We denied same by opinion issued on May 17, 2016 after concluding that he had an adequate remedy at law. We deny the motion for rehearing.
Flaming contends that the opinion on which we relied, Harrell v. State, 286 S.W.3d 315 (Tex. 2008), is inapplicable because it did not deal with a bill of costs that assessed attorney's fees. Instead, he believes the opinions in Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) and In re Daniel, 396 S.W.3d 545 (Tex. Crim. App. 2013) authorized the use of a writ of mandamus to address the issue in question.
Again, that issue involved effort by the State to recoup fees incurred by his court appointed attorney without a showing that he was no longer indigent. Those fees were apparently included in a bill of costs and collected via that bill.
Regarding Mayer, it was a direct appeal from a final judgment, not a proceeding for a writ of mandamus. Mayer v. State, 309 S.W.3d at 552. Thus, the court did not have occasion to address the requirements for seeking a writ of mandamus or whether a complaint like that of Flaming could be considered via a petition for writ of mandamus. Id.
As for Daniel, it dealt with a district clerk issuing a bill of costs long after Daniel's conviction became final. That act, according to the Court of Criminal Appeals, was not an appealable order and could not be challenged in via a post-conviction habeas proceeding. In re Daniel, 396 S.W.3d at 549. Thus, Daniel had no adequate legal remedy.
Missing in Daniel and present here, though, is an order from a trial court denying relief. We do not simply have a court clerk issuing a bill of costs. So too do we have indication that funds were and are being withdrawn from the prisoner's inmate trust account as a result of the bill of costs. So too has he sought their return. We believe these circumstances pivotal since they implicate a judicial decision refusing to stop the collection of a purportedly impermissible assessment of a particular court cost (i.e., attorney's fees). We are not simply being asked to decide whether a district clerk may assess that cost, as in Daniel.
The indication to which we refer is Flaming's representation in his petition that ". . . funds are unlawfully being seized from relator's Inmate Trust Fund without Due Process of law. . . ." Most likely, those funds were taken per an order issued by some judicial body granting Flaming's caretakers permission to remove monies from the inmate trust account. See TEX. GOV'T CODE ANN. § 501.014(e) (West Supp 2015) (stating that "[o]n notification by a court, the department shall withdraw from an inmate's account any amount the inmate is ordered to pay by order of the court under this subsection [and] [t]he department shall make a payment under this subsection as ordered by the court to either the court or the party specified in the court order."); Harrell v. State, 286 S.W.3d 315, 318-19 (Tex. 2009) (explaining that the withdrawals involved there were made pursuant to § 501.041(e) of the Government Code). --------
That funds have been taken, Flaming wants their return, and a trial court refused him relief makes the scenario before us more like that in Harrell. There, withdrawal orders had been issued, funds were being removed from the prisoner's trust account, and the prisoner was complaining of that. And, in deciding how to address the matter, the Supreme Court concluded that an inmate is entitled to notice and opportunity to be heard about the removal of his trust funds, though neither need occur before the funds are removed. Harrell v. State, 286 S.W.3d at 321. Then, it held that "appellate review should be by appeal, as in analogous civil post-judgment enforcement actions." Id.
Admittedly, the court in Harrell acknowledged that the prisoner was "not contesting the convicting court's authority to assess" the particular cost involved. Id. at 318. Flaming does broach that issue here. However, neither the Daniel nor Mayer court addressed Harrell and whether a mandamus proceeding is the appropriate avenue for attacking the allegedly improper collection of court costs in view of Harrell and the avenue of relief it mandated.
Yet, logic dictates that to successfully attack the collection (and recovery) of trust funds as contemplated in Harrell, the prisoner must have legal basis for his argument. We see no reason why the law espoused in Mayer and Daniel about obligating indigent defendants to pay attorney's fees without the proper predicate cannot be that legal basis. Indeed, Flaming made that authority his legal basis in his motion "for bill of cost deletion" filed below. Through his motion, he not only sought the recovery of costs already removed but also the modification of the bill of costs per the law espoused in Mayer and Daniel. Once the trial court denied his motion, he could have filed a notice of appeal per Harrell and, thereby, invoked our jurisdiction to review the trial court's decision. In other words, he had an adequate legal remedy via an appeal "as in analogous civil post-judgment enforcement actions."
Our prior opinion denying his petition for a writ of mandamus did not address the merits of Flaming's complaint. Nor do we do that now. We simply discuss the avenue or mechanism through which he can raise his complaint about the trial court's decision per Harrell. That remedy was via an appeal, which is an adequate legal remedy.
Accordingly, we deny the motion for rehearing.
Brian Quinn
Chief Justice