Opinion
NO. WR-86,844-01
06-07-2017
EX PARTE DEMATRIC D. YOUNG, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 99-424 ,833-A IN THE 137TH DISTRICT COURT FROM LUBBOCK COUNTY Per curiam. KEASLER, J., not participating. 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 delivery of a controlled substance in a drug-free zone and sentenced to twenty years' imprisonment. The judgment contained a drug-free zone finding pursuant to Section 481.134 of the Texas Health and Safety Code. His sentence in this case was ordered to run consecutively with a prior seven-year sentence. In addition, Applicant has an eighteen-year sentence running consecutively with his sentence in this case.
Applicant contends that was not timely reviewed for parole in this case. He alleges that the because the Texas Board of Pardons and Paroles did not afford him a timely parole review in this case, he was denied the opportunity to have the sentence in this case "cease to operate" and allow the sentence that is cumulated on this sentence to begin running.
The records provided by Applicant indicate that the seven-year sentence upon which this sentence is stacked ceased to operate on December 17, 2003. Taking into account pre-sentencing jail time credit, it appears that this 20-year sentence began to run on June 22, 2003. Under Section 508.145(e) of the Texas Government Code, an inmate serving a sentence for which the punishment is increased under Section 481.134 of the Texas Health and Safety Code is not eligible for release on parole until the inmate has served five years of flat time or the entire sentence, whichever is less. Applicant should have been eligible for parole after serving five years in flat time. However, he was apparently not reviewed for parole until 2013, and was not approved for parole release until 2015, when this sentence "ceased to operate" and the third in the series of cumulated sentences began to run.
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 addressing the issue of whether Applicant was timely reviewed for parole in this case. Specifically, the affidavit shall describe how Applicant's cumulated sentences are being calculated. The affidavit shall state when each sentence in the series began, and when each "ceased to operate." The affidavit shall state how Applicant's parole eligibility date for this sentence was determined, and when his initial eligibility date was. The affidavit shall state whether Applicant was reviewed when he was initially eligible for parole, and if not, why not. Finally, the affidavit shall state whether at the time of Applicant's conviction in this case, he had a prior conviction for an offense for which the punishment was increased under Section 481.134(c), (d), or (f) of the Texas Health and Safety Code.
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 make findings of fact and conclusions of law as to whether Applicant was timely reviewed for parole in this case. 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. Filed: June 7, 2017
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