IN THE COURT OF APPEALS

TWELFTH DISTRICT OF TEXAS

TYLER, TEXAS

No. 12-1400016-CV

FILED IN COURT OF APPEALS

12th Court of Appeals District

CATHY S. LUS

JUAN ENRIQUEZ,

Plaintiff-Appellant,

RICK THALER, ET AL.,

Defendants-Appellees.

On Appeal From the 3rd District Court, Anderson County,

Texas, Trial Court No. 3-41887

Honorable Pam Foster Fletcher, Judge Presiding

APPELLANT'S PLEA TO JURISDICTION

TO THE HONORABLE JUDGES OF SAID COURT:

Juan Enriquez, Appellant, herein files his plea to the

jurisdiction of this Court to hear this appeal under its present

posture, averring as grounds the following:

I. NO FINAL JUDGMENT BEFORE THE COURT

The Court does not have a final judgment which concludes

all of the claims raised by Appellant.

On December 11, 2013, based on Appellant's funds in his

inmate trust account on February 7, 2012, the court below

entered an Order of Dismissal in which the court ordered the

Texas Department of Criminal Justice to withdraw money from

Appellant's trust account equal to the lesser of "1) 20 percent

of the preceding six months deposits to the inmate's trust account
or 2) the total amount of court fees and costs charged to the

inmate in this cause". (ROA 133).

On December 20, 2013, the Appellant filed his Petitioner's

Motion to Vacate Judgment, contesting, inter alia, the withdrawal

order because "[p]ayments must be based on the amount placed in

the trust fund 6 months prior to February 7, 2012, [the date of

the indigency affidavit] not six months prior to the payment

order. " (ROA 139).

On April 8, 2014, the Anderson County District Clerk,

presented the costs of this case. (ROA 141-142).

The record reflects that notice of appeal was filed prior

to the court having acted on the motion to vacate judgment and

that the Anderson District Clerk did not enter costs into the

record until long after notice of appeal was filed.

It is apparent from the record that the Order of Dismissal

entered on December 11, 2013, does not dispose of all claims

presnted to the trial court and/or raised on appeal.

II. PROCESS DUE NOT GIVEN

With respect to withdrawal orders, the court in Webb v.

State, 324 S.W.3d 229 (Tex.App. - Amarillo 2010), set forth the

process due when such orders are entered:

In reversing this Court and rendering judgment affirming

the trial court's order denying Harrel's motion to

recind, the Supreme Court held that due process entitles

an inmate to receive notice and an opportunity to be heard,

even though those requirments might be accorded the inmate

after funds are withdrawn. Harrell, 286 S.W.3d at 321. It

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 the due

process required.
On the limited record before this court, we are unable to

determine if Webb has been given all that due process

requires. Specifically, we are unable to determine whether

Webb has been (1) provided the necessary underlying

documentation, and (2 afforded an adequate opportunity

"to compare the amounts assessed by the trial dourt [in

the underlying criminal proceedings] to the amount[s]

withdrawn and alert the court to any alleged errors."

See id. In that respect, we note that the, "risk of an

erroneous deprivation of [Webb's] interest through the

procedures used" in this particular case is apparent on the

face of the record.

Webb, at 232.

Here, the district court gave notice of its withdrawal

order via its Order of Dismissal. Also, Appellant was provided

-afWgans to challenge the order via a motion to vacate judgment.

However, the documentation of costs was not provided to Appellant

until after notice of appeal was filed, so he could not alert the

court to the variance between what the statute allowed to be

withdrawn from his trust account and what was withdrawn. Thus,

the record reflects "risk of an erroneous deprivation of

A

Appellant's interest through the procedure used by the lower

court to obtain money from the Appellant's prison trust fund

account.

III. NOTICE OF APPEAL PREMATURE

Because the trial court has not entered an appealable

order granting or denying the motion to vacate judgment wherein

the court could have confirmed, modified, corrected, or

rescinded the prison withdrawal notification, the Notice of

Appeal inthis case was premature.
WHEREFORE, PREMISES CONSIDERED, Appellant moves the Court

to abate this appeal and to direct the lower court, after

evidentiary hearing to develop the record, to clarify its Order

of Dismissal pursuant to which funds were withdrawn from

Appellant's prison account without the process due to Appellant.

Respectfully submitted,

Enriqi><z

T27122

TDCJ-Michael

2664 FM 2054

Tennessee Colony, TX 751

Certificate of Service

I, Juan Enriqeuz, certify that a correct copy of the foregoing

plea to jurisdiction was served by placing same in the United

States mail, postage prepaid, on April 30, 2015, addressed to

Briana M. Webb, Assistant Attorney General, P. O. Box 12548,

Capitol Station, Austin, TX 78711.

Mailbox Filing Verification

I, Juan Enriquez, declare under penalty of perjury, that the

foregoing Appellant's Plea to Jurisdiciton was filed on April 30,

2015, by placing same in the Institutional Mail System, postage

prepaid, first class mail, addressed to Cathy S. Lusk, Clerk,

Twelfth Court of Appeals, 1517 West Front Street, Suite 354,

Tyler, TX 75702. Executed on April 30, 2015.