Opinion
NO. WR-74,162-03
01-16-2013
EX PARTE BARNARD WASHINGTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 07-6704 IN THE 106TH DISTRICT COURT
FROM DAWSON 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 was convicted of two counts of assault of a public servant and sentenced to ten years' confinement on count one and five years' confinement on count two. Those sentences were ordered to run consecutively to a twenty-five year sentence from Harris County. The Eleventh Court of Appeals affirmed these convictions. Washington v. State, No. 11-08-00250-CR (Tex. App.-Waco July 2, 2009).
Applicant contends that he these sentences are being improperly calculated by the Texas Department of Criminal Justice (TDCJ). He alleges that TDCJ is adding these sentences to his twenty-five year sentence and calculating them as a single thirty-five year sentence. Neither of Applicant's offenses occurred prior to September 1, 1987, so the sentences should not be treated as one sentence. See Ex Parte Bynum, 772 S.W.2d 113 (Tex. Crim. App. 1989). Applicant has alleged facts that, if true, might entitle him 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. 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 explaining how Applicant's sentences are being calculated and the rationale for such calculation. The affidavit shall state if Applicant has completely discharged any of his sentences and detail the time credit given for each of his sentences. Finally, 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.
The trial court may also order depositions, interrogatories or a hearing. 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. C ODE CRIM. PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law 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 and conclusions as to whether Applicant's sentences are being properly calculated. 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 shall be obtained from this Court. Do not publish