IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. B-97-M010-0-PR-B-A IN THE 156TH DISTRICT COURT
FROM BEE 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 was convicted of possession of a deadly weapon in a penal institution and sentenced to five years' imprisonment.
Applicant contends that he is being improperly designated as ineligible for mandatory supervision release. 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 may use any means set out in Tex. Code Crim. Proc. Art. 11.07, § 3(d), in that it may order the Texas Board of Pardons and Paroles and /or the Texas Department of Criminal Justice, Correctional Institutions Division, to file an affidavit indicating whether Applicant is eligible for mandatory supervision release, and if not, the reason why he is ineligible. The affidavit should state whether Applicant is serving a sentence for, or has previously been convicted of, an offense which is listed in Tex. Gov't. Code § 508.149(a). Finally, the affidavit should indicate whether or not Applicant has submitted claims to the time credit resolution system of TDCJ, and if so, the date when the claims were submitted.
The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may rely on its personal recollection. Id. 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. Code 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 eligible for release to mandatory supervision. 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.
Filed: April 18, 2007
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