No. WR-29,358-03
Delivered: March 21, 2007. DO NOT PUBLISH.
On Application for Writ of Habeas Corpus, Cause Number W89-81523-H(B), In the Criminal District Court of Dallas County.
PER CURIAM.
ORDER
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of possession of cocaine and was sentenced to ten years and one day in prison. The conviction was affirmed on appeal. Winston v. State, No. 05-89-01208-CR (Tex.App.-Dallas, delivered April 15, 1991, pet. ref'd). Applicant contends that he is not being credited with street time earned while on conditional release. On a previous remand the trial court relied on a previously submitted affidavit to conclude that Applicant is entitled to credit for that time. However, neither that affidavit nor anything else included in this record reflects the date on which the parole violator warrant or summons that resulted in the revocation of Applicant's parole was issued. Additional information is necessary to resolve this street time claim. Because this Court does not hear evidence, though, the trial court is the appropriate forum. Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1960). Thus, the trial court shall resolve this issue as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure, in that it shall order the Parole Division of the Texas Department of Criminal Justice to file an affidavit, with supporting documentation, addressing what date the parole violator warrant or summons was issued and why this sentence did not expire before that warrant was issued. The trial court may also order depositions, interrogatories, or hold a hearing. If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall make additional findings of fact and conclusions of law regarding the date the warrant or summons was issued and the reason this sentence did not expire before that issuance. The trial court may also make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief. Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, this application for a post-conviction writs of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date 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 returned to this Court within 120 days of the date of this order.