IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 15,577-A IN THE 258TH JUDICIAL DISTRICT COURT
FROM POLK COUNTY
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to aggravated assault and originally received a probated ten-year sentence. His probation was later revoked, and he was re-sentenced to seven years' imprisonment.
Applicant contends that TDCJ is failing to credit him with pre-sentencing jail time awarded to him by the trial court. On August 30, 2006, this Court remanded the matter to the trial court for findings regarding whether Applicant had properly exhausted his administrative remedies, and whether TDCJ was giving him the proper amount of credit as shown on the judgment. On September 26, 2006, the trial court ordered TDCJ to submit an affidavit responding to Applicant's claims within 40 days of the date of the order. Because TDCJ failed to submit such an affidavit within 40 days, the trial court entered findings of fact and conclusions of law indicating that it could not determine the issues raised in Applicant's writ. The writ was forwarded to this Court and received on April 11, 2007.
The trial court's supplemental findings of fact and conclusions of law are not sufficient to determine the issues raised in Applicant's writ. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact.
The trial court shall resolve the issues as set out in Tex. Code Crim. Proc. Art. 11.07, § 3(d), in that it shall order the Texas Board of Pardons and Paroles and /or the Texas Department of Criminal Justice, Correctional Institutions Division, to file an affidavit stating whether Applicant is receiving credit for the 177 days of pre-sentencing jail time credit awarded to him by the trial court. The affidavit shall also state whether or not Applicant has submitted his claim to the time credit resolution system of TDCJ, and if so, the date when the claim was submitted.
The trial court may also order depositions, interrogatories or a hearing. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. C ode Crim. Proc. Art. 26.04.
The trial court shall make findings of fact first as to whether Applicant has properly exhausted his administrative remedies as required by Tex. Gov't. Code § 501.0081(b)-(c). The trial court shall then make findings as to whether Applicant is receiving the 177 days of pre-sentencing jail time credit as noted on the judgment. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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. Any extensions of time shall be obtained from this Court. However, the writ shall not be forwarded to this Court until the trial court has obtained the affidavit from TDCJ and made the factual determinations required by this order.
Filed: May 2, 2007
Do not publish