IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NUMBER 90576-A IN THE 252ND
JUDICIAL DISTRICT COURT JEFFERSON COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pled guilty to felony driving while intoxicated, and the trial court sentenced him to confinement in prison for a period of four years. There was no direct appeal.
In this application for a writ of habeas corpus, Applicant contends that he is eligible for release from prison to mandatory supervision but that such release was denied. See Tex. Gov't Code §§ 508.147, 508.149. He argues that his due process rights were violated because the Texas Board of Pardons and Paroles did not provide him notice of his review date for release to mandatory supervision before making its decision. Thus, Applicant alleges that he is being held in violation of the law.
In its response, the State argues that Applicant is making a time-credit claim that remains unexhausted under Section 508.0081 of the Texas Government Code and that the application should be dismissed. That section states that an inmate, with some exceptions, may not in an application for a writ of habeas corpus under Article 11.07, Code of Criminal Procedure, raise as a claim concerning a time-served credit error until: (1) the inmate receives a written decision issued by the highest authority provided for in the TDCJ time-credit resolution system; or (2) if the inmate has not received such a written decision, the 180th day after the date the inmate first alleged the time-served credit error within the resolution system. Applicant, however, is not making a time-credit claim.
The trial court recommends that the application should be dismissed on the basis that the claim is not cognizable under Article 11.07 of the Texas Code of Criminal Procedure. It finds that this matter is one that must be addressed by the Texas Board of Pardons and Paroles. While the trial court is correct that this matter should be addressed by the Board, this claim is properly raised in an Article 11.07 application.
The Board's decision to deny an inmate's release to mandatory supervision is not subject to judicial review by this Court. Tex. Gov't Code § 508.149(d); Ex parte Geiken, 28 S.W.3d 553, 557 (Tex. Crim. App. 2000). However, the procedures used by the Board in reaching its decision may be reviewed due to the statute's conveyance of a limited expectation of release. Ex parte Geiken, 28 S.W.3d at 559. Due process requires that the Board provide an inmate with timely notice that he will be considered for release prior to the review taking place. Id. at 560. "[A]n inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision." Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004). Moreover, an inmate "must be given at least thirty days advance notice that he will be reviewed in the specified month so that he has a sufficient opportunity to submit materials on his behalf." Id. Due process, though, does not require that an inmate receive a live hearing before the Board. Ex parte Geiken, 28 S.W.3d at 559. "If release is denied, the inmate must be informed in what respects he falls short of qualifying for early release." Id. Finally, "[d]ue process does not require that the Board provide the particulars in the inmate's file upon which it rested the decision to deny release." Id.
Thus, while the trial court has made findings of fact and conclusions of law regarding this claim, it is this Court's opinion that additional information is needed before this Court can render a decision on this ground for review. Because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum.
The trial court shall resolve this issue as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure, in that it shall order the Parole Division of the Texas Department of Criminal Justice to file an affidavit, with supporting documentation, addressing Applicant's ground for relief. The trial court may also order depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court may also rely on its personal recollection.
If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall make findings of fact and conclusions of law regarding whether Applicant was given proper notice of his review for release to mandatory supervision under the discretionary mandatory supervision statute as required under this Court's decision in Ex parte Retzlaff, 135 S.W.3d at 45. The trial court may also make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief.
Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. (1) A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. (2)
DELIVERED: March 8, 2006
DO NOT PUBLISH
1. 2.