In Re William B. Flowers v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00335-CV
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IN RE WILLIAM B. FLOWERS
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Original Proceeding
258th District Court of San Jacinto County, Texas
Trial Cause No. D-9405-16
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MEMORANDUM OPINION

In this original proceeding for a writ of mandamus, William B. Flowers

complains that due to the trial court’s inaction Flowers has been unable to exercise

his post-judgment right to recover excess proceeds from a tax sale held on November

1, 2022. An inmate confined in the Texas Department of Criminal Justice, Flowers

asserts that he mailed a motion and proposed order to release excess proceeds from

the registry of the court to the District Clerk, but that the Clerk and the trial court

have ignored his subsequent requests for information. Flowers asks this Court to

compel the trial court to order the District Clerk to provide file-stamped copies of

all documents presented to the trial court in Trial Cause Number D-9405-16 after

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November 1, 2022. Additionally, Flowers asks this Court to compel the trial court

to order the District Clerk to provide Flowers with the notice required by section

34.03 of the Tax Code. See Tex. Tax Code Ann. § 34.03. 1 See also id. § 34.04.2

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Tax Code section 34.03 provides:
§ 34.03. Disposition of Excess Proceeds
(a) The clerk of the court shall:
(1) if the amount of excess proceeds is more than $25, before the
31st day after the date the excess proceeds are received by the clerk,
send by certified mail, return receipt requested, a written notice to the
former owner of the property, at the former owner’s last known address
according to the records of the court or any other source reasonably
available to the court, that:
(A) states the amount of the excess proceeds;
(B) informs the former owner of that owner’s rights to claim the
excess proceeds under Section 34.04; and
(C) includes a copy or the complete text of this section and
Section 34.04;
(2) regardless of the amount, keep the excess proceeds paid into
court as provided by Section 34.02(d) for a period of two years after the
date of the sale unless otherwise ordered by the court; and
(3) regardless of the amount, send to the attorney general notice
of the deposit and amount of excess proceeds if the attorney general or
a state agency represented by the attorney general is named as an in rem
defendant in the underlying suit for seizure of the property or
foreclosure of a tax lien on the property.
(b) If no claimant establishes entitlement to the proceeds within
the period provided by Subsection (a), the clerk shall distribute the
excess proceeds to each taxing unit participating in the sale in an
amount equal to the proportion its taxes, penalties, and interests bear to
the total amount of taxes, penalties, and interest due all participants in
the sale.
(c) The clerk shall note on the execution docket in each case the
amount of the excess proceeds, the date they were received, and the
date they were transmitted to the taxing units participating in the sale.
Any local government record data may be stored electronically in
addition to or instead of source documents in paper or other media.
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(d) The clerk may deduct from the amount of the excess proceeds
the cost of postage for sending to the former owner of the property a
notice under Subsection (a)(1).
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To comply with section 34.03, the trial court clerk must send a copy of the text
of that section and section 34.04. Tax Code Section 34.04 provides:
§ 34.04. Claims for Excess Proceeds
(a) A person, including a taxing unit and the Title IV-D agency, may
file a petition in the court that ordered the seizure or sale setting forth a
claim to the excess proceeds. The petition must be filed before the
second anniversary of the date of the sale of the property. The petition
is not required to be filed as an original suit separate from the
underlying suit for seizure of the property or foreclosure of a tax lien
on the property but may be filed under the cause number of the
underlying suit.
(b) A copy of the petition shall be served, in the manner prescribed
by Rule 21a, Texas Rules of Civil Procedure, as amended, or that rule’s
successor, on all parties to the underlying action not later than the 20th
day before the date set for a hearing on the petition.
(c) At the hearing the court shall order that the proceeds be paid
according to the following priorities to each party that establishes its
claim to the proceeds:
(1) to the tax sale purchaser if the tax sale has been adjudged to be
void and the purchaser has prevailed in an action against the taxing
units under Section 34.07(d) by final judgment;
(2) to a taxing unit for any taxes, penalties, or interest that have
become due or delinquent on the subject property subsequent to the date
of the judgment or that were omitted from the judgment by accident or
mistake;
(3) to any other lienholder, consensual or otherwise, for the amount
due under a lien, in accordance with the priorities established by
applicable law;
(4) to a taxing unit for any unpaid taxes, penalties, interest, or other
amounts adjudged due under the judgment that were not satisfied from
the proceeds from the tax sale; and
(5) to each former owner of the property, as the interest of each may
appear, provided that the former owner:
(A) was a defendant in the judgment;
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(B) is related within the third degree by consanguinity or affinity to
a former owner that was a defendant in the judgment; or
(C) acquired by will or intestate succession the interest in the
property of a former owner that was a defendant in the judgment.
(c-1) Except as provided by Subsections (c)(5)(B) and (C), a former
owner of the property that acquired an interest in the property after the
date of the judgment may not establish a claim to the proceeds. For
purposes of this subsection, a former owner of the property is
considered to have acquired an interest in the property after the date of
the judgment if the deed by which the former owner acquired the
interest was recorded in the real property records of the county in which
the property is located after the date of the judgment.
(d) Interest or costs may not be allowed under this section.
(e) An order under this section directing that all or part of the excess
proceeds be paid to a party is appealable.
(f) A person may not take an assignment or other transfer of an
owner’s claim to excess proceeds unless:
(1) the assignment or transfer is taken on or after the 36th day after
the date the excess proceeds are deposited in the registry of the court;
(2) the assignment or transfer is in writing and signed by the assignor
or transferor;
(3) the assignment or transfer is not the result of an in-person or
telephone solicitation;
(4) the assignee or transferee pays the assignor or transferor on the
date of the assignment or transfer an amount equal to at least 80 percent
of the amount of the assignor’s or transferor’s claim to the excess
proceeds; and
(5) the assignment or transfer document contains a sworn statement
by the assignor or transferor affirming:
(A) that the assignment or transfer was given voluntarily;
(B) the date on which the assignment or transfer was made and that
the date was not earlier than the 36th day after the date the excess
proceeds were deposited in the registry of the court;
(C) that the assignor or transferor has received the notice from the
clerk required by Section 34.03;
(D) the nature and specific amount of consideration given for the
assignment or transfer;
(E) the circumstances under which the excess proceeds are in the
registry of the court;
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(F) the amount of the claim to excess proceeds in the registry of the
court;
(G) that the assignor or transferor has made no other assignments or
transfers of the assignor’s or transferor’s claim to the excess proceeds;
(H) that the assignor or transferor knows that the assignor or
transferor may retain counsel; and
(I) that the consideration was paid in full on the date of the
assignment or transfer and that the consideration paid was an amount
equal to at least 80 percent of the amount of the assignor’s or
transferor’s claim to the excess proceeds.
(g) An assignee or transferee who obtains excess proceeds without
complying with Subsection (f) is liable to the assignor or transferor for
the amount of excess proceeds obtained plus attorney’s fees and
expenses. An assignee or transferee who attempts to obtain excess
proceeds without complying with Subsection (f) is liable to the assignor
or transferor for attorney’s fees and expenses.
(h) An assignee or transferee who files a petition setting forth a
claim to excess proceeds must attach a copy of the assignment or
transfer document and produce the original of the assignment or
transfer document in court at the hearing on the petition. If the original
assignment or transfer document is lost, the assignee or transferee must
obtain the presence of the assignor or transferor to testify at the hearing.
In addition, the assignee or transferee must produce at the hearing the
original of any evidence verifying the payment of the consideration
given for the assignment or transfer. If the original of any evidence of
the payment is lost or if the payment was in cash, the assignee or
transferee must obtain the presence of the assignor or transferor to
testify at the hearing.
(i) A fee charged by an attorney to obtain excess proceeds for an
owner may not be greater than 25 percent of the amount obtained or
$1,000, whichever is less. A person who is not an attorney may not
charge a fee to obtain excess proceeds for an owner.
(j) The amount of the excess proceeds the court may order be paid
to an assignee or transferee may not exceed 125 percent of the amount
the assignee or transferee paid the assignor or transferor on the date of
the assignment or transfer.

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We requested responses from the Real Parties in Interest. San Jacinto County,

Coldspring-Oakhurst Independent School District, San Jacinto Emergency Services

District (collectively, the “Tax Entities”), and Kerry Carl Hagan, the attorney ad

litem appointed by the trial court to represent the unknown heirs in the trial court,

filed responses to Flowers’ mandamus petition. The responses filed by the Tax

Entities and Hagan include copies of the motion to release excess proceeds that

Flowers filed in his capacity as an heir of Denson O. Hankins, Deceased, on

November 30, 2022. The Tax Entities’ appendix includes a copy of a letter dated

February 13, 2023, from Flowers to the trial court. In the letter, Flowers requested

“pertinent information and file-stamped copies of documents previously submitted

to the Court in this cause via the Clerk.” In this letter, Flowers tells the trial court,

“Although a court clerk is not expressly required to send filed-stamped copies as a

function, it is a service so commonly provided as a dignified administrators’ official

pleasure that it is generally accepted as a ministerial duty relied upon unspoken.”

Additionally, the Tax Entities appendix includes a copy of a letter from Flowers to

the lawyer for the Tax Entities, in which Flowers acknowledged having received a

copy of his motion but complained that he has also submitted a proposed order to

release excess proceeds, a certificate of service, and a notice of change of address.

In the letter, Flowers complains that the trial court clerk had not mailed a copy of

Tax Code section 34.03 to him.

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An inmate retains the constitutional right to petition the government for

redress of grievances, which includes a reasonable right of access to the courts.

Hudson v. Palmer, 468 U.S. 517, 523 (1984). Here, Flowers complains that the trial

court clerk failed to send him a copy of Tax Code section 34.03. Assuming the trial

court clerk violated a ministerial duty by failing to comply with section 34.03

(a)(1)(C), in his mandamus petition Flowers reveals he knew the amount of the

excess proceeds and that counsel for the Tax Entities provided instructions on how

to file a motion for an order releasing the excess funds from the registry of the court.

From the mandamus record, it is evident that Flowers had sufficient information at

his disposal to file a motion to release the excess proceeds of the tax sale from the

registry of the court. Flowers has not shown that the trial court denied Flowers access

to the courts because it did not order the District Clerk to mail a copy of the text of

Tax Code section 34.03 to Flowers.

Flowers complains that “[a]fter receiving no response from the clerk

indicating receipt of the submitted pleadings, follow-up correspondence with

subsequent requests were mailed, in kind to the previous, requesting filed-stamped

copies of the above and the information required to be sent to the previous owner

per Tex. Tax Code section 34.03(a).” Flowers argues, “[b]y declining his request

through total disregard with no response and no assertion of exemption from

response, the Relator has been denied his constitutional right to access courts of this

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state.” Flowers asks the appellate court to compel the trial court to order the District

Clerk

to respond to Defendant William Bronson Flowers in cause no. D-
9405-16 and present the documents required by Tex. Tax Code § 34.03
and file-stamped copies of the foresaid pleadings and correspondence
submitted in this cause since November 1, 2022 by sending to him
designated LEGAL MAIL at his address of record.

To support his argument that he is entitled to the relief sought in his mandamus

petition, Flowers cites a mandamus opinion in a criminal case. See In re Bonilla, 424

S.W.3d 528, 528 (Tex. Crim. App. 2014) (orig. proceeding). In Bonilla, the Court

of Criminal Appeals held that, although section 552.028 of the Texas Government

Code broadly permits a governmental body to decline to give information requested

by an incarcerated person, when the information relates only to the amount that it

would cost to obtain trial and appellate transcripts for use in preparing an application

for a writ of habeas corpus, applying section 552.028 to deny the inmate access to

that information unconstitutionally infringes on his constitutional right to access the

courts. Id. at 530 (citing Tex. Gov’t Code Ann. § 552.028).

Flowers emphasizes that he “is a named party in active litigation to which he

has already paid all court cost through the sale of his real property and home and is

entitled to said requested file[]-stamped copies. He is not merely an inmate

requesting free copies of the record post judgement or requesting public

information.” The documents he says he needs to be able to exercise his

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constitutional right to access the courts are file-stamped copies of his proposed order

to release excess proceeds, a certificate of service, and a notice of change of address.

He fails to explain why not having file-stamped copies of those documents, or a

response from the District Clerk acknowledging their filing, prevents Flowers from

proceeding to a disposition of his motion for release of excess proceeds in the 258th

District Court. None of the parties to this mandamus proceeding suggest that any of

the Real Parties in Interest have claimed they had not been served with the Motion

for Excess Proceeds, nor have they argued that Flowers is not entitled to have the

trial court consider his motion on its merits because a proposed order did not

accompany the motion. Although it is possible that Flowers requested a setting by

hearing or submission in a transmittal letter when he filed his motion or his proposed

order, and that request has been ignored, Flowers is not complaining that the trial

court refused to consider his motion or set it for an evidentiary hearing so that he can

prove his right to the proceeds. Flowers has not established that his constitutional

right to access to the courts has been denied.

The relator has not shown that he is entitled to mandamus relief. Accordingly,

we deny the petition for a writ of mandamus.

PETITION DENIED.

PER CURIAM
Submitted on March 4, 2024
Opinion Delivered April 25, 2024
Before Golemon, C.J., Johnson and Wright, JJ.
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