IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NUMBER W01-37073-P(A) IN THE 203RD JUDICIAL
DISTRICT COURT DALLAS 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 was convicted of burglary of a habitation with intent to commit theft, and the trial court sentenced him to confinement for twelve years. There was no direct appeal.
In this application for a writ of habeas corpus, Applicant contends that the Texas Department of Criminal Justice-Criminal Institutions Division (TDCJ) is unlawfully denying him release to mandatory supervision. While the trial court has entered findings of fact and conclusions of law that Applicant is entitled to relief under Ex parte Thompson,173 S.W.3d 458 (Tex. Crim. App. 2005), it is this Court's opinion that additional information is needed before a decision can be reached. In particular, the trial court shall obtain information regarding the reason or reasons TDCJ is not considering Applicant eligible for release to mandatory supervision, including whether Applicant has additional convictions, or other circumstances, that render him ineligible.
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 an affidavit from the Classification and Records Division of TDCJ. 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 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: FEBRUARY 8, 2006.
DO NOT PUBLISH
1. 2.