Opinion
NO. WR-87,946-02
06-06-2018
EX PARTE ANTHONY RAY BOSLEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1364788-A IN THE 209TH DISTRICT COURT FROM HARRIS COUNTY
Per curiam. 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 pleaded guilty to failure to comply with sex offender registration requirements, and was sentenced to eight years' imprisonment.
Applicant contends, among other things, that he was denied due process in a parole revocation proceeding because he was compelled to waive his right to a revocation hearing and was not provided with counsel for the revocation despite having a "below average IQ." Relying on an affidavit from TDCJ provided in connection with a different cause number, the trial court finds that Applicant has never been granted supervised release in this case, and therefore has never had a revocation process in this case. These findings are not supported by the record, as it appears that Applicant was out on some form of supervised release when he committed a new offense in 2016.
This Court has reviewed Applicant's other claims and finds them to be without merit. --------
Applicant has alleged facts that, if true, might entitle him to relief. Morrissey v. Brewer, 408 U.S. 471(1972). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), 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 describing Applicant's history of parole release and revocation specific to this cause number. The affidavit shall state whether Applicant was provided with notice of his rights in the revocation process for any parole revocations, and if so, whether he requested and was afforded a preliminary hearing or a revocation hearing. The affidavit shall state whether Applicant requested counsel for any such revocation proceedings, and whether counsel was appointed for him. If counsel was not appointed, the affidavit shall state why not.
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 first supplement the habeas record with copies of any documents relevant to parole revocations in this case, including any notices of rights in the revocation process, any written waivers of rights, and any revocation hearing reports. The trial court shall make findings of fact and conclusions of law as to whether Applicant was released on parole for this particular cause number, and if so, whether such parole was ever revoked. If Applicant was released on parole and subsequently revoked, the trial court shall make findings of fact and conclusions of law as to whether Applicant was afforded due process in the parole revocation proceedings. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: June 6, 2018 Do not publish.