IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 01CR034 IN THE 349TH DISTRICT COURT
FROM HOUSTON 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and sentenced to twelve years' imprisonment. He did not appeal his conviction.
Applicant contends, among other things, that he is being denied credit for time spent on erroneous release. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003); Ex parte Rowe, 277 S.W.3d 18 (Tex. Crim. App. 2009). 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 order the Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit stating whether Applicant was erroneously released from TDCJ-CID on February 20, 2004. The affidavit should also state whether Applicant has submitted his claim to the time credit resolution system of TDCJ and, if so, the date his claim was 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 him 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 was erroneously released and, if so, whether he is receiving the proper amount of time credit for that time. 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: June 24, 2009
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