Opinion
No. 76,363
Filed: June 16, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. 201732D in Criminal District Court Number One from Tarrant County.
ORDER
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 rape and sentenced to twenty-five years' imprisonment. He did not appeal his conviction. Applicant contends that he was denied a timely preliminary hearing. Morrissey v. Brewer, 408 U.S. 471, 475, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972); TEX. GOV'T CODE § 508.2811. We order that this application be filed and set for submission to determine (1) whether Applicant's claim is justiciable under the "capable of repetition, yet evading review" doctrine, Weinstein v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975), given that the Parole Division of the Texas Department of Criminal Justice (TDCJ) is the same institutional party in preliminary hearing cases; and (2) whether § 508.2811 or Morrissey requires the Parole Division to hold a preliminary hearing when a releasee is being confined on pending criminal charges. The parties shall brief these issues. The Office of General Counsel of TDCJ is invited to file a brief. The trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent him. TEX. CODE CRIM. PROC. art. 26.04. The trial court shall send to this Court, within 60 days of the date of this order, a supplemental transcript containing either the order appointing counsel or a statement that Applicant is not indigent. All briefs shall be filed with this Court within 90 days of the date of this order.