IN THE

TENTH COURT OF APPEALS

No. 10-08-00087-CV

IN RE RICHARD D. ROSIN

Original Proceeding

M E M O R A N D U M O P I N I O N

Relator Richard Rosin, a pro se prison inmate, seeks mandamus relief regarding 

the trial court’s failure to rule on his postjudgment “motion to rescind court order of 

September 21, 2006.” We will conditionally grant mandamus relief.

The underlying civil lawsuit is between Marqueth Wilson, another inmate, and 

Rosin. Wilson sued Rosin, and the trial court entered a summary judgment against 

Rosin that awarded Wilson $11,500. On the same date of the summary judgment, the 

trial court entered an order for the payment of the judgment by directing the Texas 

Department of Criminal Justice to make monthly percentage withdrawals from Rosin’s 

inmate trust account and to forward those withdrawals to Wilson’s inmate trust 
In re Richard D. Rosin Page 2

account.1 Rosin claims that he first learned of this order and of withdrawals ($82.00) 

being made to pay the judgment when, in January of 2007, he made a commissary 

purchase, and further when his inmate trust account statement on March 1, 2007 

reflected the $82.00 in withdrawals from his account to pay the judgment.

On October 31, 2007, Rosin filed his “motion to rescind court order of September 

21, 2006,” asking the trial court to rescind its order directing the withdrawal of his 

inmate trust account funds to pay the judgment. Rosin’s motion asserts that section 

14.006 does not apply to a civil inmate defendant and, citing Abdullah v. State, 211 

S.W.3d 938 (Tex. App.—Texarkana 2007, no pet.), that the entry of the September 21, 

2006 order without notice and an opportunity to be heard violates due process.

In January of 2008, Rosin filed a “motion to rule,” asserting that the trial court 

had, to that date, failed to rule on his October 31, 2007 motion to rescind and that the 

trial court’s failure to rule was causing him harm. Rosin then filed this petition for writ 

of mandamus in March of 2008, complaining about the trial court’s refusal to rule on his 

motion to rescind and about the alleged voidness of the September 21, 2006 order. We 

requested a response from the trial court and Wilson. Only Wilson responded; his 

response does not address the trial court’s failure to rule on Rosin’s motion to rescind.

We will grant mandamus relief if there has been an abuse of discretion and the 

relator has no adequate remedy by appeal. In re Prudential Ins. Co., 148 S.W.3d 124, 135-

 

1 The order cites Civil Practice and Remedies Code section 14.006 as its authority. That section provides 

in pertinent part: “A court may order an inmate who has filed a claim to pay court fees, court costs, and 

other costs in accordance with this section and Section 14.007.” TEX. CIV. PRAC. & REM. CODE ANN. § 

14.006(a) (Vernon 2002) (emphasis added); see also id. § 14.007. In the underlying case, Wilson—not 

Rosin—filed a claim.
In re Richard D. Rosin Page 3

38 (Tex. 2004) (orig. proceeding). A trial judge has a reasonable time to perform the 

ministerial duty of considering and ruling on a motion properly filed and before the 

judge. In re Chavez, 62 S.W.3d 225, 228 (Tex. App.—Amarillo 2001, orig. proceeding); In 

re Martinez Ramirez, 994 S.W.2d 682, 683-84 (Tex. App.—San Antonio 1998, orig. 

proceeding). But that duty generally does not arise until the movant has brought the 

motion to the trial judge’s attention, and mandamus will not lie unless the movant 

makes such a showing and the trial judge then fails or refuses to rule within a 

reasonable time. See Chavez, 62 S.W.3d at 228. Whether the judge has acted within a 

“reasonable” period of time depends on the circumstances of the case. See Martinez 

Ramirez, 994 S.W.2d at 684.

As of the filing of Rosin’s mandamus petition in March 2008, his October 31, 2007 

motion to rescind had been on file for five months. It has now been on file for about 

twelve months. His January 2008 motion to rule, requesting Respondent to rule on the 

motion to rescind, was made about nine months ago. Under the circumstances alleged 

by Rosin, Respondent has had a reasonable time to rule on Rosin’s motion to rescind. 

See id.

We conditionally grant Rosin’s petition for writ of mandamus. The writ will 

issue only if Respondent fails to advise this Court in writing within fourteen days after 

the date of this opinion that he has ruled on Rosin’s motion to rescind.

BILL VANCE

Justice
In re Richard D. Rosin Page 4

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

(Chief Justice Gray dissents)*

Petition granted and writ conditionally issued

Opinion delivered and filed November 5, 2008

[OT06]

*(Chief Justice Gray dissents. A separate opinion will not issue. He notes, 

however, that his "Dissent to Request for a Response" explains the primary reasons for 

his dissent to the Court's memorandum opinion. See In re Rosin, 256 S.W.3d 925 (Tex. 

App.—Waco 2008, orig. proceeding) (Gray, C.J., Dissent to Request for a Response). For 

the convenience of the reader, the text of that dissent is set out in full as follows.

______________________________________________________________________________

DISSENT TO REQUEST FOR A RESPONSE

______________________________________________________________________________

This proceeding, as a mandamus proceeding, suffers from a number of problems, 

including service on the parties and persons who will be directly affected by the Court’s 

judgment, the availability of a number of remedies by direct appeal or other method of 

review to attack the validity of the “order,” as well as the fact that what is denominated 

as an “order” may be nothing more than the “notice” required by the statute. See TEX.

GOV’T CODE ANN. § 501.014(e)(4) (Vernon 2004). 

I would deny the petition. 

But if I was going to request a response, I would expand the list of persons from 

whom a response is sought and make sure that the legal issues were fully briefed, 

which may include appointing counsel, if needed, for parties and interested persons 

that may otherwise be pro se. 

PROCEDURAL PROBLEM -- INDIGENCE

In this proceeding we have before us a petition to compel a trial court to rule on a 

motion to withdraw an “order.” The “order” the inmate wants withdrawn is an 

“order” to withhold payment of a judgment from the inmate’s account which is 

administered by the Texas Department of Criminal Justice (TDCJ). Because the filing 

fee was not paid and the inmate asserted he was unable to pay it, this Court’s Clerk 

attempted to perform her duties to set a deadline by which the inmate’s indigency 

could be contested. See TEX. R. APP. P. 20.1. The problem is that the Relator has not 

served the real-party-in-interest or the respondent with anything in the course of this 

original proceeding, nor has the Court complied with the rule requiring that the notices 

it sends be sent to all parties. See TEX. R. APP. P. 6.3, 52.2. The real-party-in-interest is 

readily identified in the documents. 

If I was going to proceed as the Court has attempted to, I would first see to it that 

the real-party-in-interest received a copy of the Relator’s declaration of inability to pay 
In re Rosin Page 5

costs and provide the real-party-in-interest with notice of a date specific by which it 

must be contested (the Clerk did this with regard to the other parties but not the realparty-in-interest). I would then decide the Relator’s indigency status. Thereafter, I 

would proceed as may be appropriate based upon that ruling. 

DENY THE PETITION

But I would approach the disposition of this proceeding entirely differently than 

what the Court is doing. I would deny the petition and write off the unpaid filing fee.1 

What the petitioner is trying to accomplish by this proceeding is a collateral 

attack on the underlying judgment. There are a number of proper methods to possibly 

accomplish this, but the method chosen by Rosin is not one of them. The trial court has 

no duty to rule on a motion such as the one filed by Rosin: a motion to withdraw an 

“order.” At this Court, as I suspect at most courts, we receive motions or requests filed 

in a proceeding long after the proceeding is over. We have no particular duty to rule on 

these requests. 

I note that in the proceeding in which the underlying motion was filed, Rosin 

suffered a summary judgment against him in a civil suit filed by another inmate. In the 

course of that proceeding, Rosin has enjoyed all the protections that due process 

afforded. If not, he had the right to assert a complaint about the absence or violation of 

due process. Further, from that civil proceeding, Rosin could have appealed; or, if he 

had not participated in the trial, he could have presented a direct attack on appeal by a 

restricted appeal; or failing that, he could have challenged the judgment by a bill-ofreview. He apparently did none of this to protect himself from the enforcement of the 

judgment. 

Now, the trial court has sent an “order” to the TDCJ to pay the judgment out of 

Rosin’s inmate account. The “order” appears to be pursuant to section 501.014 of the 

Texas Government Code. TEX. GOV’T CODE ANN. § 501.014(e) (Vernon 2004). This 

Court has held that such an “order” is void because it is rendered without the due 

process protections afforded to the owner of the account. In re Keeling, 227 S.W.3d 391 

(Tex. App.—Waco 2007, orig. proceeding). In none of the proceedings in which the 

Court initially drew this conclusion did this Court have the benefit of briefing by the 

parties, or amicus curiae briefs, of the relevant issues. In re Martinez, 238 S.W.3d 601, 

603 (Tex. App.—Waco 2007, orig. proceeding) (Chief Justice Gray in concurring note to 

opinion noting that this was the first proceeding in which the Court had been provided 

any substantive briefing on the issue). And once we were provided some briefing on 

the issue in a subsequent proceeding, the Court declined to address the issues as raised 

and briefed. Id.

The propriety of this Court’s holding in Keeling is currently pending before the 

Court of Criminal Appeals in a mandamus proceeding filed against this Court. In Re 

Johnson, AP-75, 898 (Tex. Crim. App. writ filed April 8, 2008). In that proceeding, for the 

first time, the issues briefed are being considered by an appellate court. In that 

 

1 When I initially suggested this approach, the Court elected to hold this proceeding, in addition to 

another one, pending the disposition of In Re Johnson, AP-75,898, by the Court of Criminal Appeals. Thus 

I was surprised to see the Court now moving it forward toward a disposition. 
In re Rosin Page 6

proceeding, there are briefs from the inmate represented by appointed counsel, the 

District Judge represented by the District Attorney of McLennan County, and even an 

amicus curiae brief on the issue from the TDCJ. In reviewing that briefing on this issue, 

and having heard the oral arguments made to the Court of Criminal Appeals in that 

proceeding, I am now convinced that this Court, including myself in my dissenting and 

concurring opinions and notes, missed the most fundamental of all of the issues: the 

section of the Government Code relied upon by the trial court to render these “orders” 

is based on the fact that a judgment is already in place. See TEX. GOV’T CODE ANN. § 

501.014(e) (Vernon 2004). Unless the validity of that judgment is properly attacked, we 

should not question its validity. More fundamentally, this is nothing more than the 

collection of a judgment. The TDCJ is not in the position to contest the inmate’s 

obligation owed under the judgment upon which the “order” is based. 

Assuming that the underlying judgment is valid, we should move to the 

question of the validity of the actions taken to collect the judgment. Because we must 

assume the validity of the underlying judgment, and because TDCJ is, at most, nothing 

more than the agent of the inmate, TDCJ has no defense to assert for the non-payment 

of the inmate’s funds to satisfy the judgment the inmate owes. These are not 

garnishment proceedings in the traditional sense and as I have previously argued.

The very limited role of TDCJ to act as the inmate’s agent to pay the inmate’s 

already established lawful debt after the full protections of due process have been 

utilized is highlighted by the fact that the statute does not even require an “order” by 

the trial court to the TDCJ for the TDCJ to pay the judgment out of the inmate’s account. 

TEX. GOV’T CODE ANN. § 501.014(e) (Vernon 2004). Because of the existence and 

presumed validity of the judgment against the inmate, all the trial court need do under 

the referenced section is to notify TDCJ of the judgment, whereupon TDCJ is authorized 

to withdraw the full amount necessary to pay the judgment. Id. It is my understanding 

that the percentage collection procedure described in the “order” is solely due to the 

limitation on TDCJ’s information system which is programmed for compliance only 

with a Chapter 14 collection procedure for having filed frivolous inmate litigation. See

TEX. CIV. PRAC. & REM. CODE ANN. § 14.006 (Vernon 2002). But the inclusion of this 

staggered collection methodology in the notice (“order”) does not make the notice 

(“order”) void as previously held by this Court.

The inmate had due process leading up to the rendition of the judgment. The

trial court need only notify the agent of the inmate, TDCJ as the holder of the inmate’s 

funds, which the agent is to pay on the judgment from the funds in the inmate’s 

account. TEX. GOV’T CODE ANN. § 501.014(a), (e) (Vernon 2004). This is not a trust 

account, nor is it even an account held pursuant to a contract like a regular bank 

account.

Accordingly, I would deny the petition.

FROM WHOM TO REQUEST RESPONSES

But, as I said previously, if I was going to request a response, I would expand the 

list of persons or entities from whom or which a response is sought.

This proceeding is substantially different than In re Keeling and its progeny. The 
In re Rosin Page 7

judgment which underlies this proceeding resulted from a suit by one inmate against 

another and is not about the collection of just court costs in a criminal proceeding from 

an inmate. One problem is that the inmate to which the money was transferred may no 

longer have the money, so if it must be returned, it may have to be paid out of the Texas 

Department of Criminal Justice’s budget. That implicates issues not previously 

addressed in this type proceeding. If a response is to be requested, at the very least, the 

TDCJ should also be asked to file a response.2

Additionally, this entire line of proceedings arises out of a recent effort by the 

legislature to increase the collection of court costs and fines. Under this legislation, the 

Office of Courts Administration (OCA) drafted the order being used all across the State. 

Thus, if I was going to try to write on the issues of the mandamus, I would also ask the 

OCA to file a brief on the issues.

Finally, as this issue may implicate as many as 14,000 “orders” entered in this 

State against persons who have little or no financial ability to hire an attorney to 

represent them, I would determine whether suitable representation could be found, 

either pro bono or appointed, to represent the interests of persons who may be 

impacted by what we do here.

With these comments, I respectfully dissent to the request for a response.)

 

2

I note that the issue is also currently before the Texas Supreme Court in Herrell v. State, No. 07-06-00469-

CR & 07-06-00470-CR, ___ S.W.3d ___ (Tex. App.—Amarillo Aug. 13, 2007, pet. filed (07-0806)). A copy of 

the TDCJ’s amicus brief filed in In re Johnson was recently filed by the Attorney General on behalf of the 

TDCJ in Herrell.