IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NUMBER 3012014-A IN THE 147TH
JUDICIAL DISTRICT COURT TRAVIS 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 robbery and was sentenced to confinement in prison for a period of three years. There was no direct appeal.
In this application for a writ of habeas corpus, Applicant states that the trial court indicated on the judgment that he was to receive credit for pre-sentence confinement. Specifically, the judgment reflects that Applicant was to be credited for time served from April 18, 2001 to May 18, 2001, September 19, 2001 to February 6, 2002, and May 20, 2003 to November 14, 2003. This constitutes 351 days. Applicant contends, however, that Texas prison officials are failing to give him this credit on his three-year sentence.
The trial court has not made findings of fact and conclusions of law regarding this claim, and it is this Court's opinion that additional information is needed before this Court can render a decision on this ground for review, including an affidavit from Texas prison officials addressing whether the claim has been properly exhausted under Section 501.0081 of the Texas Government Code and whether Applicant has received credit for this time. 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.
Thus, 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 Classification and Records 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 this claim has been properly exhausted and whether Applicant has properly been credited with the pre-sentence time indicated in the trial court's judgment. 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)
FILED: March 8, 2006
DO NOT PUBLISH
1. 2.