IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 43002-D IN THE 27TH DISTRICT COURT
FROM BELL 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 cocaine and sentenced to eleven (11) years' imprisonment. On May 24, 2006, this Court dismissed this application as moot. Upon further review, this Court has determined that the issue raised is not moot. Thus, this application for writ of habeas corpus is hereby reconsidered.
Applicant contends that he received credit for time spent on parole but that his discharge date was not appropriately amended to reflect that he received the credit. Specifically, he alleges that his sentence should have been discharged on June 22, 2006. If applicant's allegations are true, he could be entitled to relief. 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, Institutional Division to file an affidavit listing Applicant's sentence begin date, the dates of issuance of any parole-revocation warrants leading to the revocation of such parole or mandatory supervision. The affidavit should state whether Applicant is serving a sentence for, or has previously been convicted of, an offense which was listed in Tex. Gov't Code § 508.149(a) at the time of Applicant's revocation. The affidavit should also address how much time was remaining on this sentence on the date that Applicant was released on parole, and how much time Applicant spent on release before the issuance of the parole-revocation warrant. The affidavit should state whether or not Applicant is receiving credit for any of the time spent on parole. The affidavit should indicate 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. Finally, the affidavit should state the date this sentence will be or was discharged.
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 Application 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 as to whether Applicant's sentence should have been discharged on June 22, 2006. The trial court shall also make findings of fact as to whether the Texas Board of Pardons and Paroles and the Texas Department of Criminal Justice, Institutional Division have the correct sentence discharge date listed in their records. The trial court shall also make findings of fact as to whether Applicant's parole was revoked after his sentence should have been discharged. The trial court shall also make finding of fact as to whether Applicant is receiving the proper amount of street time credit. 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 45 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 60 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: February 28, 2007
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