Opinion
No. WR-49,494-04
Delivered: December 15, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus Cause No. 89-CR-2673-A in the 28th District Court from Nueces 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 kidnapping and sentenced to twenty years' imprisonment. He did not appeal his conviction. Applicant contends, among other things, that he is being denied credit for time spent released on mandatory supervision prior to revocation on September 15, 2006. The trial court made findings of fact and concluded that Applicant's claim is without merit based on a sworn affidavit from Charley Valdez, a program supervisor for the Classification and Records Department of the Texas Department of Criminal Justice-Correctional Institutions Division. In his affidavit, Mr. Valdez stated that Applicant was not credited with his street time because he is serving a sentence for kidnapping. An inmate serving a sentence for first or second degree aggravated kidnapping is not eligible to earn street time. TEX. GOV'T CODE §§ 508.283(b), 508.149(a)(4). Applicant pleaded guilty to and was convicted of third degree kidnapping. 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. 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 is serving a sentence for or has previously been convicted of an offense described by TEX. GOV'T CODE § 508.149(a) at the time of Applicant's revocation on September 15, 2006. If Applicant is serving a sentence for or has previously been convicted of such an offense, the affidavit shall state whether the offense is a first, second, or third degree felony. The affidavit should also address how much time was remaining on this sentence on the date Applicant was released on mandatory supervision, and how much time Applicant spent on release before the issuance of the parole-revocation warrant. The affidavit should state whether Applicant is receiving credit for any of the time spent on mandatory supervision. 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 further findings as to whether Applicant is eligible to earn street time credit, and if so, whether he is entitled to credit for his time spent on release. The trial court shall also make findings as to whether Applicant is receiving the proper amount of 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.