Spivey, Reginald Ray ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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WR- 22,960-06

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EX PARTE REGINALD RAY SPIVEY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 13,433-CR-C IN THE 82nd DISTRICT COURT FROM ROBERTSON COUNTY

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   Per curiam.

O R D E R  

   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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of robbery and sentenced to fifteen years' imprisonment.

Applicant contends that he is being denied credit for a period he spent incarcerated in an Intermediate Sanctions Facility (ISF) as a condition of being returned to parole. Ex parte Price, 922 S.W.2d 957 (Tex. Crim. App. 1996); Ex parte Canada, 754 S.W.2d 660 (Tex. Crim. App. 1988). Specifically, the Applicant contends that, while a parole revocation arrest warrant was still in force, he was confined at the ISF from September 5, 1997 until May 21, 1998. 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 may use any means set out in Tex. Code Crim. Proc. Art. 11.07, § 3(d), in that it shall order the Texas Department of Criminal Justice's Correctional Institutions Division and Parole Division, to file affidavits addressing whether the Applicant is being improperly denied credit for the alleged period of time he spent confined in an ISF as a condition of being returned to parole. Also, 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. 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. C ode Crim. Proc. Art. 26.04.

The trial court shall make findings of fact first 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 as to whether Applicant is being improperly denied time credit for the period from September 5, 1997 until May 21, 1998. 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.

Filed: October 3, 2007

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