IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NUMBER 01-04-9603 IN THE 24TH JUDICIAL
DISTRICT COURT DEWITT 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 the third-degree felony offense of injury to a child, and the trial court sentenced him to confinement for seven years. There was no direct appeal.
In this application for a writ of habeas corpus, it appears that Applicant claims his due process rights were violated when the Texas Board of Pardons and Paroles did not provide him notice of his review date for release to mandatory supervision, which was subsequently denied. Thus, he alleges that he is being held in violation of the law.
The Board's decision to deny Applicant's release to mandatory supervision is not subject to judicial review by this Court. See Tex. Gov't Code § 508.149(d); Ex parte Geiken, 28 S.W.3d 553, 557 (Tex. Crim. App. 2000). The procedures used by the Board in reaching its decision, however, may be reviewed due to the statute's creation of a limited expectation of release. Id. at 559.
Due process requires that the Board provide Applicant with timely notice that he will be considered for release prior to the review taking place. Id. at 560. As this Court has stated, "An 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 does not require, though, 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.
Here, the trial court has not made findings of fact or conclusions of law regarding Applicant's claims, and it is this Court's opinion that additional information is needed before this Court can render a decision. 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 grounds for relief. The trial court may also order depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court shall 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 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: January 25, 2006
DO NOT PUBLISH
1. 2.