Dale Roy Slaven v. State ( 2012 )


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  •                          COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00309-CV
    Dale Roy Slaven                            §    From Criminal District Court No. 2
    §    of Tarrant County (1181417D)
    v.
    §    November 15, 2012
    The State of Texas                         §    Per Curiam
    JUDGMENT
    This court has considered the record on appeal in this case and holds that
    there was no error in the trial court‘s order. It is ordered that the order of the trial
    court is affirmed.
    SECOND DISTRICT COURT OF APPEALS
    PER CURIAM
    COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-11-00297-CV
    NO. 02-11-00298-CV
    NO. 02-11-00299-CV
    NO. 02-11-00300-CV
    NO. 02-11-00301-CV
    NO. 02-11-00302-CV
    NO. 02-11-00303-CV
    NO. 02-11-00304-CV
    NO. 02-11-00305-CV
    NO. 02-11-00306-CV
    NO. 02-11-00307-CV
    NO. 02-11-00308-CV
    NO. 02-11-00309-CV
    NO. 02-11-00310-CV
    NO. 02-11-00311-CV
    DALE ROY SLAVEN                                   APPELLANT
    V.
    THE STATE OF TEXAS                                 APPELLEE
    ----------
    FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
    ----------
    MEMORANDUM OPINION[1]
    ----------
    I. Background
    Appellant pro se Dale Roy Slaven entered open pleas of guilty to eight
    charges of aggravated robbery, six charges of robbery, and one charge of
    forgery. The trial court found Slaven guilty on all charges, accepted his pleas of
    true to the habitual offender notices, and assessed his punishment at sixty years‘
    confinement in the aggravated robbery and robbery cases and twenty years‘
    confinement in the forgery case, all sentences to run concurrently. The fifteen
    judgments, signed on September 21, 2010, included $274 in court costs for a
    cumulative total of $4,110. We affirmed the judgment in each of Slaven‘s fifteen
    cases earlier this year. See Slaven v. State, Nos. 02-10-00413-CR, 02-10-
    00414-CR, 02-10-00415-CR, 02-10-00416-CR, 02-10-00417-CR, 02-10-00418-
    CR, 02-10-00419-CR, 02-10-00420-CR, 02-10-00421-CR, 02-10-00422-CR, 02-
    10-00423-CR, 02-10-00424-CR, 02-10-00425-CR, 02-10-00426-CR, 02-10-
    00427-CR, 
    2012 WL 1964590
    , at *6 (Tex. App.—Fort Worth May 31, 2012, pet.
    ref‘d) (mem. op., not designated for publication).
    On February 7, 2011, the trial court issued an ―Order to Withdraw Funds‖
    in each of Slaven‘s fifteen cases.[2] The orders directed the Texas Department of
    Criminal Justice (the Department) to withdraw money from Slaven‘s inmate
    account in predetermined percentages and to forward the withdrawn amounts to
    the Tarrant County District Clerk until Slaven‘s court costs are paid in full.[3]
    After he received the trial court‘s orders to withdraw funds, Slaven
    attempted to challenge the withdrawal of funds from his inmate account by filing
    notices of appeal in this court. He also filed motions in the trial court to challenge
    the orders. We abated these appeals so that Slaven could pursue in the trial
    court his challenge to the withdrawal orders. The trial court conducted a hearing
    and signed an order on December 29, 2011. The trial court‘s order waived the
    court costs in ten of Slaven‘s fifteen cases and amended the manner in which the
    Department could withdraw funds from Slaven‘s inmate account in the future by
    ordering that the Department cumulatively withdraw no more than ten percent of
    the funds in Slaven‘s inmate account per month.[4] These appeals were then
    reinstated.
    II. Discussion
    Slaven argues in his first three issues that he has been denied due
    process, that the withdrawal of his inmate funds in satisfaction of court costs
    violates his rights under article 1, sections 13 and 19 of the Texas constitution, [5]
    and that there is no statutory or factual basis for the court costs. Slaven argues
    in his fourth through seventh issues that the assessment of court costs resulted
    from prosecutorial misconduct, retaliation by the district attorney and district
    clerk, abuse of judicial discretion, and ineffective assistance of counsel. We
    review a trial court‘s denial of a motion contesting a withdrawal order under an
    abuse of discretion standard. See Williams v. State, 
    332 S.W.3d 694
    , 698 (Tex.
    App.—Amarillo 2011, pet. denied).
    A. Due Process – Withdrawal Notification
    A withdrawal notification directing prison officials to withdraw money from
    an inmate account pursuant to government code section 501.014(e) is a civil
    matter akin to a garnishment action or an action to obtain a turnover
    order. Harrell v. State, 
    286 S.W.3d 315
    , 317–19 (Tex. 2009); Johnson v. Tenth
    Judicial Dist. Court of Appeals at Waco, 
    280 S.W.3d 866
    , 869 (Tex. Crim. App.
    2008). ―Such post-judgment collection efforts are designed to reimburse the
    State, not to punish the inmate, and due process is satisfied if the inmate
    receives   notice   and   the   opportunity   to   be   heard   after   funds   are
    withdrawn.‖ Harrell, 286 S.W.3d at 316.
    In Harrell, the supreme court held that due process entitles an inmate to
    receive notice and an opportunity to be heard, even though those requirements
    might be accorded to the inmate after the funds are withdrawn. See id. at
    321. Harrell had received a copy of the trial court orders requiring withdrawal of
    funds from his inmate account, and he filed a motion to rescind the orders based
    on a denial of due process, specifically challenging the inability to present
    evidence of his indigence.      Id. at 317.    The trial court denied Harrell‘s
    motion. Id. Discussing Harrell‘s specific complaint, the supreme court concluded
    that, because Harrell had received notice (a copy of the withdrawal notification)
    and an opportunity to be heard (the motion to rescind), he had received all that
    due process required. Id. at 321. The Harrell Court added, ―The Constitution
    does not require pre-withdrawal notice or a comprehensive civil garnishment
    proceeding.‖ Id.
    In this case, Slaven unquestionably received notice of the trial court‘s
    withdrawal orders because he filed notices of appeal in this court and motions
    contesting the withdrawals in the trial court. Furthermore, Slaven had an
    opportunity to be heard because the trial court conducted a hearing on his
    motions.[6] Indeed, the trial court granted a majority of the relief that Slaven had
    requested by waiving court costs in ten of Slaven‘s fifteen cases (thereby
    reducing the total of all court costs assessed from $4,110 to $1,370) and by
    restricting the withdrawals from his inmate account to a collective total of ten
    percent in a given month. We hold that Slaven has not been denied due
    process, and we overrule the portions of his first and second issues that assert
    due process complaints. See id.
    B. Authority to Order Court Costs
    In the remainder of his first and second issues, Slaven argues that he does
    not know what services were provided that permitted the court costs taxed
    against him and that there is no legal authority for those costs. Slaven argues in
    his third issue that, because of the assessment of court costs, he ―has been
    made to suffer under excessive and unusual fines.‖
    First, court costs are not punitive. Weir v. State, 
    278 S.W.3d 364
    , 367
    (Tex. Crim. App. 2009) (holding that because court costs are not punitive, they
    do ―not have to be included in the oral pronouncement of sentence . . . as a
    precondition to their inclusion in the trial court‘s written judgment‖). Court costs
    are treated differently than fines imposed as punishment and are ―intended by
    the Legislature as a nonpunitive ‗recoupment of the costs of judicial resources
    expended in connection with the trial of the case.‘‖ 
    Id. at 366
    .
    Furthermore, the court costs assessed against Slaven are listed on a
    ―Transaction Fee Breakdown‖ document in each of the five cases for which
    Slaven remains obligated to pay court costs. That document contains the
    following information:[7]
    Fee Name                           Amount
    1.   Clerk Fees                                           $40.00
    2.   DC Rec Mgmt&Pre                                       $2.50
    3.   DC Recs Tech                                          $4.00
    4.   Security Fees                                         $5.00
    5.   Crim. Records                                        $22.50
    6.   Jury Service FD                                       $4.00
    7.   PO Arrest Fee                                        $50.00
    8.   PO Commit/Rel                                         $5.00
    9.   Ind DefenseFund                                       $2.00
    10.   Jud Support–CRM                                       $6.00
    11.   CCC–Felony                                          $133.00
    Total Costs:                                        $274.00
    Each of these fees is mandated by the code of criminal procedure or the
    local government code. Code of criminal procedure article 102.005(a) states that
    a ―defendant convicted of an offense in . . . a district court shall pay for the
    services of the clerk of the court a fee of $40.‖ Tex. Code Crim. Proc. Ann. art.
    102.005(a) (West 2006).       This corresponds to cost number one in the
    chart. Costs number two and five in the chart are mandated by article 102.005(f),
    which requires a $25 fee for county records management services with $22.50
    paid for services by the county and $2.50 paid for services by the district court
    clerk. See 
    id.
     art. 102.005(f)(1), (2). Article 102.0169(a) requires a convicted
    defendant to ―pay a $4 county and district court technology fee as a cost of
    court,‖ and this corresponds to cost number three in the chart above. 
    Id.
     art.
    102.0169(a) (West Supp. 2012).
    Cost number four is required by article 102.017(a), which provides that ―[a]
    defendant convicted of a felony offense in a district court shall pay a $5 security
    fee as a cost of court.‖      
    Id.
     art. 102.017(a) (West Supp. 2012).         Article
    102.0045(a) mandates ―a fee of $4 to be used to reimburse counties for the cost
    of juror services.‖   
    Id.
     art. 102.0045(a) (West Supp. 2012).         This $4 fee
    corresponds with cost number six in the chart. Costs number seven and eight
    are required for services performed by a peace officer in cases involving felony
    convictions, $50 for executing and processing an arrest warrant and $5 for
    commitment or release. 
    Id.
     art. 102.011(a)(2), (6) (West Supp. 2012).
    Costs number nine, ten, and eleven are required by the local government
    code. Section 133.107(a) requires that a convicted person pay, as a court cost,
    ―a fee of $2 to be used to fund indigent defense representation through the fair
    defense account,‖ and section 133.105(a) requires that a person convicted of an
    offense pay, as a court cost, ―a fee of $6 to be used for court-related purposes for
    the support of the judiciary.‖ Tex. Loc. Gov‘t Code Ann. §§ 133.105(a) (West
    2008), .107(a) (West Supp. 2012). Finally, cost number eleven is $133, and local
    government code section 133.102(a)(1) requires that a convicted person pay a
    court cost of ―$133 on conviction of a felony.‖ Id. § 133.102(a)(1) (West Supp.
    2012).
    Slaven‘s primary argument throughout all of his first three issues is that the
    trial court should have waived the court costs in all fifteen of his cases because
    he is indigent and will indefinitely remain indigent because any future deposits
    into his inmate account will be automatically withdrawn for the payment of court
    costs. However, each court cost charged to Slaven is mandated by statute, and
    the trial court already waived two-thirds of the court costs and restricted the
    amount that could be withdrawn each month.             Furthermore, a convicted
    defendant‘s indigency is not relevant to the amount of court costs assessed when
    those court costs do not include an obligation to pay court-appointed attorney‘s
    fees under code of criminal procedure article 26.05(g). See Dissette v. State,
    No. 09-11-00672-CR, 
    2012 WL 1249014
    , at *1 (Tex. App.—Beaumont Apr. 11,
    2012, no pet.) (mem. op., not designated for publication); Auchincloss v. State,
    No. 09-11-00673-CR, 
    2012 WL 1249412
    , at *1 (Tex. App.—Beaumont Apr. 11,
    2012, no pet.) (mem. op., not designated for publication). Because the court
    costs are statutorily required, because they are not punitive, because Slaven‘s
    indigency is not relevant to the statutorily mandated court costs other than
    attorney‘s fees, and because the trial court has granted significant relief to
    Slaven through reduction of the amount of court costs and the manner in which
    they may be withdrawn from his inmate account, we hold that the trial court did
    not abuse its discretion by declining to waive court costs in all fifteen of Slaven‘s
    cases. We overrule the remainder of Slaven‘s first two issues and all of his third
    issue.
    C. Remaining Issues
    Slaven argues in his fourth through seventh issues that the assessment of
    court costs resulted from prosecutorial misconduct, retaliation by the district
    attorney and district clerk, abuse of judicial discretion, and ineffective assistance
    of counsel. Specifically, Slaven contends that he entered an open plea of guilty
    only on the belief that the State would waive the assessment of all fines, fees,
    and costs; that the district attorney‘s office and clerk‘s office have sought to
    impose costs against him with ―vindictive intent‖; that his appointed criminal
    appellate attorney was not competent and offered incorrect and misleading legal
    advice; and that the trial court abused its discretion by declining to waive the
    remainder of the court costs because of this alleged conduct.
    As discussed above, each of the court costs assessed against Slaven is
    mandated by statute. But more importantly, Slaven‘s fourth through seventh
    issues present criminal matters that must have been brought, if at all, in the direct
    appeals of his criminal convictions. See Malone, 
    2012 WL 579472
    , at *3 (holding
    that Malone waived his challenge to the assessment of costs by failing to pursue
    a direct appeal of his criminal convictions) (citing Armstrong v. State, 
    340 S.W.3d 759
    , 767 (Tex. Crim. App. 2011)); see also Harrell, 286 S.W.3d at 321 (noting the
    due process Harrell received through his criminal case concerning the amount of
    appointed-counsel fees and court costs assessed); see generally Johnson v.
    State, No. 14-11-00693-CR, 
    2012 WL 4878803
    , at *1–3 (Tex. App.—Houston
    [14th Dist.] Oct. 16, 2012, no pet. h.) (addressing on direct appeal from criminal
    conviction the sufficiency of evidence to support the assessment of court
    costs). We overrule Slaven‘s fourth through seventh issues. See Malone, 
    2012 WL 579472
    , at *3.
    III. Conclusion
    Having overruled each of Slaven‘s issues, we affirm the trial court‘s
    December 29, 2011 withdrawal order.
    PER CURIAM
    PANEL: GARDNER, MCCOY, and MEIER, JJ.
    DELIVERED: November 15, 2012
    [1]
    See Tex. R. App. P. 47.4.
    [2]
    These ―orders‖ are not ―‗order[s]‘ in the traditional sense of a court order,
    judgment, or decree issued after notice and hearing in either a civil or criminal
    proceeding.‖ Malone v. State, Nos. 02-10-00383-CV, 02-10-00384-CV, 02-10-
    00385-CV, 02-10-00386-CV, 02-10-00387-CV, 02-10-00388-CV, 02-10-00389-
    CV, 02-10-00390-CV, 
    2012 WL 579472
    , at *1 n.3 (Tex. App.—Fort Worth Feb.
    23, 2012, pet. denied) (mem. op. on reh‘g). They are more in the nature of
    notifications by a court that prison officials must withdraw sums according to set
    percentages and at set times. 
    Id.
    [3]
    Specifically, the order required the initial withdrawal in each case to be
    fifteen percent of the inmate account balance if the balance was $100 or below,
    twenty-five percent of any balance between $100 and $500, and fifty percent of
    any balance above $500. Thereafter, the Department would withdraw ten
    percent of any deposits into Slaven‘s account until the balance of all court costs
    is paid in full.
    [4]
    In other words, even though Slaven still must pay court costs for five
    cases, the total amount of court costs taken from his trust account in any given
    month cannot exceed ten percent of the account balance. If Slaven‘s account
    balance is $15, the Department can withdraw only $1.50 and equally apportion
    that $1.50 toward the outstanding balance in the five cases.
    [5]
    Article 1, section 13 prohibits excessive fines and cruel and unusual
    punishment. Tex. Const. art. 1, § 13. Article 1, section 19 prohibits the
    deprivation or disenfranchisement of ―life, liberty, property, privileges or
    immunities . . . except by the due course of the law of the land.‖ Id. art. 1, § 19.
    [6]
    We express no opinion as to whether a trial court is required to conduct a
    hearing on a motion contesting an order of withdrawal.
    [7]
    The title for each of the costs assessed is set forth exactly as it appears
    in the document.
    

Document Info

Docket Number: 02-11-00309-CV

Filed Date: 11/15/2012

Precedential Status: Precedential

Modified Date: 10/16/2015