Davis, Donald Fitzgerald ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-35,493-04

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EX PARTE DONALD FITZGERALD DAVIS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-372-007956-0964559-B IN THE 372^ND DISTRICT COURT FROM TARRANT 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 theft and sentenced to two (2) years' imprisonment. He did not appeal his conviction.

Applicant alleges that he was arrested on a parole revocation warrant on August 30, 2006, but has not been given a preliminary hearing. He also alleges that he has not been properly notified of the alleged parole violations or his right to a preliminary hearing.

The trial court has entered findings of fact and conclusions of law recommending that relief be denied. The trial court recommended denying relief because Applicant remains on pre-revocation status and has criminal charges pending. However, a preliminary hearing is constitutionally mandated under Morrissey v. Brewer, 408 U.S. 471, 485 (1972). "[D]ue process would seem to require that some minimal inquiry be conducted . . . as promptly as convenient after arrest while information is fresh and sources are available" to "determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions." Id. The parolee should be given notice that the preliminary hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. Id. He should also be notified of the alleged parole violations. Id. The Texas Legislature enacted section 508.2811 of the Government Code to implement the due process rights of those who are arrested as parole violators. Tex. Gov't Code § 508.2811.

Applicants has alleged facts which, if true, could 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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). 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. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether Applicant has been notified of the alleged parole violation and his right to a preliminary hearing. The trial court shall make findings of fact as to whether Applicant has been given a preliminary hearing and, if not, why he has not been given such a hearing. 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 claims 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: April 4, 2007

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