IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. 71-91-A IN THE 25TH JUDICIAL DISTRICT COURT OF GONZALES COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of possession of a controlled substance, and punishment was assessed at forty-five years' confinement. Applicant's conviction was affirmed on appeal. Cerda v. State, No. 13-92-059-CR (Tex. App. -- Corpus Christi, delivered January 14, 1993, no pet.).
Applicant contends that he is being improperly classified as a sex offender by TDCJ, and that this erroneous classification is preventing him from being released on parole.
The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from TDCJ, or it may order a hearing. In the appropriate case the trial court may 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 Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
Following receipt of additional information, the trial court shall make findings of fact as to whether TDCJ is indeed classifying Applicant as a sex offender, and if so, what the basis for such classification is. The trial court shall also make findings as to whether Applicant is being denied placement in a halfway house because of sex offender status, as he alleges. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), 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 ninety 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 one hundred and twenty days of the date of this order. (2)
IT IS SO ORDERED THIS THE 8 DAY OF February, 2005.
EN BANC
DO NOT PUBLISH
1. 2.